EXPLANATORY STATEMENT

                                            Migration Regulations 1994

SPECIFICATION OF METHOD TO DETERMINE TERMS AND CONDITIONS OF EMPLOYMENT THAT WOULD BE PROVIDED TO AN AUSTRALIAN CITIZEN OR AN AUSTRALIAN PERMANENT RESIDENT TO PERFORM EQUIVALENT WORK IN THE SAME WORKPLACE AT THE SAME LOCATION

(SUBREGULATION 2.72(10AA)

1. This Instrument is made under subregulation 2.72(10AA) of the Migration Regulations 1994 (‘the Regulations’).

2.                  Subregulation 2.72(10AA) of the Regulations provides that for paragraphs 2.72(10)(c) and 2.72(10)(cc) of the Regulations, if there is no Australian citizen or Australian permanent resident who performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing, the terms and conditions of employment (and the base rate of pay under the terms and conditions of employment) that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

3.                  Where there are no Australian citizens or Australian permanent residents performing equivalent work in the person’s workplace at the same location:

•  paragraph 2.72(10)(c) requires a comparison between the terms and conditions of employment that would be provided to an Australian citizen or an Australian permanent resident and the terms and conditions of employment that will be provided to the person identified in the nomination; and
• paragraph 2.72(10)(cc) requires a comparison between the base rate of pay under the terms and conditions of employment that would be provided to an Australian citizen or an Australian permanent resident and the temporary skilled migration income threshold.

4.                  The base rate of pay is defined in regulation 2.57 of the Regulations and the temporary skilled migration threshold is specified in an instrument made under paragraph 2.72(10)(cc).

5.                  This instrument and the regulations under which it is made were developed in consultation with:

• a selection of industry peak bodies, unions, and State Governments through the Skilled Migration Consultative Panel;
• Department of Foreign Affairs and Trade;
• Department of Education, Employment and Workplace Relations;
• the Treasury;
• the Department of Finance and Deregulation; and
• the Department of Prime Minister and Cabinet.

6. The Instrument, IMMI 09/113, commences on 14 September 2009.