EXPLANATORY STATEMENT
Migration Regulations 1994
MINIMUM SALARY LEVELS FOR THE SUBCLASS 457 TEMPORARY BUSINESS (LONG STAY) VISA, AND RECORDS THAT MUST BE KEPT
(subparagraph 2.79(2A)(c)(ii), subregulation 2.79(3A) and subparagraph 2.82(2)(aa))
- This instrument is made under subparagraph 2.79(2A)(c)(ii), subregulation 2.79(3A) and subparagraph 2.82(2)(aa) of the Migration Regulations 1994 (‘the Regulations’).
- Regulation 2.79 of the Regulations relates to the obligation to ensure equivalent terms and conditions of employment. Subregulation 2.79(2) provides that a person to whom the obligation applies must ensure that the terms and conditions of employment provided to a primary sponsored person are no less favourable than the terms and conditions of employment that the person provides, or would provide, to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
- However, subparagraph 2.79(2A)(c)(ii) of the Regulations provides a limited exception to subregulation 2.79(2) where the relevant Subclass 457 visa was granted in relation to a nomination that was approved prior to 14 September 2009. The exception provides that from 14 September 2009 until immediately prior to 1 January 2010, the person must ensure that the primary sponsored person’s salary is not less than the minimum salary level worked out and paid in the way specified by the Minister in an instrument in writing.
- Subregulation 2.79(3A) of the Regulations provides that, for the purposes of terms and conditions set out in a work agreement, the Minister may specify that a minimum salary level is to be worked out in the way specified in writing for the purposes of that subregulation.
- The Instrument specifies, for the purposes of subparagraph 2.79(2A)(c)(ii) and subregulation 2.79(3A):
(a) the methodology for calculating the minimum salary level using a salary formula, definitions and illustrative examples; and
(b) the frequency with which it should be paid.
6. Subparagraph 2.82(2)(aa) of the Regulations provides that all classes of sponsor and parties to a work agreement must keep records of a kind specified by the Minister in an instrument in writing made for this paragraph.
7. This Instrument also specifies, for the purposes of paragraph 2.82(2)(aa), that the hours worked by a primary sponsored person is a record that must be kept.
8. This is because the methodology for calculating the minimum salary level specified in the instrument includes reference to hours worked in a given period.
9. In accordance with subparagraph 18(2)(f) of the Legislative Instruments Act 2003, consultation was unnecessary as the Instrument relates to employment.
10. This Instrument, IMMI 09/109, commences on 14 September 2009.
Overview
The Explanatory Statement outlines an instrument made under the Migration Regulations 1994, specifically targeting the Subclass 457 Temporary Business (Long Stay) Visa. Enacted to address the need for a consistent methodology in calculating minimum salary levels for sponsored workers, this instrument was introduced to ensure that the terms and conditions of employment provided to primary sponsored persons are not less favourable than those provided to Australian citizens or permanent residents performing equivalent work. This was particularly relevant for Subclass 457 visa nominations approved prior to 14 September 2009. The policy objective is to maintain fairness and transparency in employment conditions, ensuring that sponsored workers are compensated appropriately.
The instrument specifies the methodology for calculating minimum salary levels, including a salary formula, definitions, and illustrative examples, as well as the frequency of payment. Additionally, it mandates that records of hours worked by primary sponsored persons must be maintained, as these records are integral to the calculation of minimum salary levels. The instrument, IMMI 09/109, was deemed to not require consultation under the Legislative Instruments Act 2003 as it pertains to employment conditions and came into effect on 14 September 2009.
Scope and Application
The Migration Regulations 1994, as specified in this instrument, applies to individuals or entities sponsoring a primary sponsored person under the Subclass 457 Temporary Business (Long Stay) Visa, with a particular focus on ensuring compliance with minimum salary levels. This regulation pertains to the requirement that the terms and conditions of employment, including salary, for a sponsored person must be at least as favourable as those offered to Australian citizens or permanent residents performing equivalent work in the same workplace. A notable exception exists for nominations approved before 14 September 2009, where a minimum salary level must be adhered to from 14 September 2009 until immediately prior to 1 January 2010. The instrument details the methodology for calculating this minimum salary, including a specified formula, definitions, and examples, as well as the frequency of salary payments. Additionally, it mandates that records of hours worked by the primary sponsored person be kept, as these hours are integral to the calculation of the minimum salary level. The instrument is applicable nationally, adhering to the jurisdictional reach of the Commonwealth of Australia.
Key Provisions
The main operative sections of the instrument pertain to the minimum salary levels for the Subclass 457 Temporary Business (Long Stay) visa and the records that must be kept. Section 2.79(2A)(c)(ii) and subregulation 2.79(3A) specify the methodology for calculating the minimum salary level, which includes a salary formula, definitions, and illustrative examples, as well as the frequency of payment. Section 2.82(2)(aa) outlines the types of records that must be kept, specifically including the hours worked by a primary sponsored person, due to their relevance in calculating the minimum salary level.
The obligations imposed on the parties governed by this Act are multifold. Firstly, under subregulation 2.79(2), sponsors must ensure that the terms and conditions of employment for a primary sponsored person are no less favourable than those provided to an Australian citizen or permanent resident for equivalent work. Secondly, from 14 September 2009 until immediately prior to 1 January 2010, sponsors must ensure that the salary of a primary sponsored person meets or exceeds the specified minimum salary level. Finally, all classes of sponsor and parties to a work agreement must keep records of hours worked by the primary sponsored person as specified by the Minister.
The instrument also outlines potential consequences for breach. While the explanatory statement does not detail specific offences or penalties, breaches of the Migration Regulations 1994 can lead to civil and criminal penalties. Generally, under the Migration Act 1958, breaches may result in fines, imprisonment, or both. The exact penalties depend on the nature and severity of the breach but can be substantial, reflecting the seriousness with which the Australian government treats non-compliance with migration laws.