Overview

The Explanatory Statement outlines the specifications for determining the terms and conditions of employment and base rate of pay for non-Australian citizens in the Migration Regulations 1994. This instrument was enacted to address a gap in the Regulations where there are no Australian citizens or permanent residents performing equivalent work in the same workplace and location. It was developed under subregulation 2.72(10AA) of the Regulations and provides a method for making these determinations where necessary. The policy objective appears to be ensuring fair and equitable employment conditions for non-Australian workers in specific scenarios, while fostering consultation and collaboration with industry peak bodies, unions, and relevant government departments. The instrument, IMMI 09/113, came into effect on 14 September 2009.

Scope and Application

This instrument, F2009L03515, specifies the method for determining the terms and conditions of employment and the base rate of pay that would be provided to an Australian citizen or permanent resident for equivalent work in the same workplace and location, as required by subregulation 2.72(10AA) of the Migration Regulations 1994. It applies to situations where no Australian citizen or permanent resident is performing equivalent work in the nominated person's workplace at the same location, necessitating a comparison under paragraphs 2.72(10)(c) and 2.72(10)(cc) of the Regulations. This comparison includes assessing the terms and conditions of employment offered to the nominated person against those that would be offered to an Australian citizen or permanent resident, as well as comparing the base rate of pay to the temporary skilled migration income threshold. The Regulations themselves are of Commonwealth jurisdiction and apply nationally across Australia, with the instrument taking effect from 14 September 2009.

Key Provisions

The main operative section of this instrument (subregulation 2.72(10AA) of the Migration Regulations 1994) sets out a method for determining the terms and conditions of employment, including the base rate of pay, that would be offered to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as the nominated person. This requirement applies where no such Australian citizen or permanent resident is currently employed in the same role (subregulation 2.72(10)(c) and (cc)). Essentially, it mandates a comparison between the hypothetical Australian employment terms and those offered to the nominated person. The obligations imposed by this regulation on employers and nominated individuals are primarily to ensure that the nominated person is offered terms and conditions of employment that are at least equivalent to those that would be offered to an Australian citizen or permanent resident under similar circumstances. This involves a detailed analysis of the job role, responsibilities, and remuneration to ensure compliance with the stipulated criteria. Employers must conduct this analysis diligently and maintain records to demonstrate compliance with the regulations. Failure to comply with the terms and conditions specified by the Minister in the instrument may result in significant legal consequences. Although the specific penalties for non-compliance are not detailed in the explanatory statement, breaches of migration regulations can generally lead to penalties under the Migration Act 1958. These penalties can include substantial fines for corporations, visa cancellations for individuals, and potential criminal charges in severe cases. The precise penalties depend on the nature and severity of the breach, but they underscore the importance of adhering to the stipulated employment terms.