9 The difference is stark. In her case, in either event, she might then be entitled to a refund from the ATO for overpaid PAYG tax, subject to her personal circumstances. Without going into the detail of each of the seven sponsored employees involved, as the PAYG tax adjustment in each case is different, the total claimed by way of reimbursement of reg 2.79 fixes the entitlement, the total reimbursement sought by the Minister is $125,956 compared to $52,480 if the Award is the appropriate starting point.
10 Despite that difference, the Minister contends that the Court should make restitution orders based upon the higher "entitlements".
11 Section 486S(4) relevantly provides:
If, when determining the application [for a civil penalty], it appears to the eligible court that
(a) an amount of a kind prescribed in the regulations for purposes of subsection 1405(1) is required to be paid by the person [against whom the civil penalty is sought] to the Commonwealth, a State or Territory or another person; and
(b) the amount remains unpaid after the time for payment; and
(c) proceedings to cover the amount have not been brought under section 140S;
the court may order that the amount be paid to the Commonwealth, State, Territory or other person (as the case may be).
12 It is accepted by Choong Enterprises (to which I refer discretely only because it is the respondent against which an order is sought under s 486S(4)) that s 140S applies to it as an approved sponsor, and that s 140S then applies to it if it is:
Required to pay an amount of a kind prescribed in the regulations ... to another person (the payee) in relation to a sponsorship obligation.
13 If it applies, s 140S(2) entitles the payee to recover the amount as a debt due to the payee.
14 The relevant regulatory trail then is through the Migration Regulations 1994 (Cth) (the Regulations).
15 Regulation 2.79(1)(a) applies to a sponsor of a primary sponsored person holding a Subclass 457 visa - it is accepted that each of the seven relevant sponsored employees are within that category - unless reg 2.79(1A) is enlivened. Reg 2.79(1A) is accepted not to be enlivened: it says that reg 2.79 does not apply if (relevantly) the annual earnings of the sponsored person are equal to or greater than the amount specified by the Minister in an instrument in writing for reg 2.79.
16 Regulation 2.79 then provides:
(2A) For subregulations (2) and (3), if:
(a) the person is mentioned in paragraph (1)(a); and
(b) the nomination by the person of an activity, in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately before 14 September 2009);
then
(c) from 14 September 2009 until immediately before 1 January 2010:
(i) subregulations (2) and (3) do not apply; and
(ii) 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 for this paragraph; and
(d) on and after 1 January 2010, subregulations (2) and (3) apply.
17 For the period 14 September 2009 to 31 December 2009, the Minister prescribed a formula for determining a minimum base salary based on an applicable base salary of $45,220: Minister for Immigration and Citizenship (Cth) Minimum Salary Levels for the Subclass 457 Temporary Business (Long stay) Visa IMMI 09/109, 10 September 2009 (Instrument No IMMI 09/109).
18 Thereafter, subregs 2.79(2) and (3) are engaged.
19 It is noteworthy, for reasons which appear below, that separately reg 2.79(2) specifically provides that, subject to subreg (2A), the sponsor must ensure that the terms and conditions provided to a sponsored employee are no less favourable than those that would apply to an Australian citizen performing equivalent work.
20 Regulation 2.79(3) is the relevant sub-regulation, as the agreed fact is that each of the relevant sponsored employees was nominated under reg 1.20GA in the case of Mr Dumasig and Ms Sebastian, and Mr Rodriguez and under reg 1.20G in the case of Ms Gaitan and Mr Largado, and under s 140GB of the Act in the case of Ms Culion and Ms Enriquez and was not engaged in information and communication technology activities. Specifically reg 2.79(3)(a) provides that a person sponsored under s 140GB is to be given payments no less favourable than those which, under para 2.72(10)(c) of the Regulations, would be given to an Australian citizen, and reg 2.79(3)(b) provides that a person sponsored under reg 1.20GA should have a base rate of pay of not less than $40,705, and reg 2.79(3)(c) provides that a person sponsored under reg 1.20G should have a base rate of pay of not less than $45,220.
21 I do not consider that s 486S(4) gives the Court a discretion to order the payment of a lesser amount than the application of the Regulations and any relevant Instrument imposes. That is not to say that the Court does not have a discretion, indicated by use of the word "may", whether or not to make an order of the type contemplated. It is clear that an affected sponsored employee may be left to bring that person's new claim under s 140S. But s 486S(4) empowers, but does not oblige, the making of an order that "the amount", namely the amount prescribed by the Regulations for the purposes of s 140S(1), be paid. It does not suggest any discretion in the quantification of the amount. Although reg 2.79 is headed "Obligation to ensure equivalent terms and conditions of employment", and that concept is then embedded in subreg(2), subregs (2A) and (3) which concern what seems to be the Ministerial prescription of the minimising of the amount required to be paid to satisfy that objective. On the data provided by the Minister, it plainly does not do so but is more favourable to the sponsored employee than to an Australian citizen doing the same work. It is a Ministerial prescription nevertheless, partly by Instrument No 09/109 up to 31 December 2009 and then embedded in the Regulations themselves.
22 The labyrinthine detail of the Regulations, quite apart from their apparent effect (on the Minister's own submission) may merit their further consideration.
23 As no submission was put on behalf of Choong Enterprises to controvert the calculations of the Minister based upon either the amounts prescribed by the Regulations, or upon the applicable Awards, I will proceed on the basis of the calculations provided. I also see no reason why the underpaid sponsored employees should not be paid their prescribed entitlements. No submission was made that I should not do so. It is necessary to adopt the proposed orders to ensure that the PAYG component of the payments is paid to the Commonwealth (as I discussed in the reasons, the payment is for wages that should have been paid and Choong Enterprises should also be protected by fulfilling its statutory obligations to deduct PAYG tax and account for that to the Australian Taxation Office). The order directing part payment to the Commonwealth is, in essence, that component of the underpaid wages so it should be accounted for by the ATO.
24 Choong Enterprises is therefore ordered to pay to each of the seven sponsored employees the gross wage entitlement, less the actual net wage payments received, and adjusted for the PAYG tax required to have been withheld on the gross wage entitlement and for the PAYG tax already paid, and to the Commonwealth the adjusted PAYG tax payable less that received from Choong Enterprises. In one instance, that PAYG tax deducted and already paid is greater than that payable on the gross wage entitlement. In that case, the amount payable to the Commonwealth is shown as $0, but the sponsored employee may, depending upon that person's personal circumstances, be entitled to a refund from the ATO.
25 The orders will be that Choong Enterprises pay:
(a) to or on account of Mr Dumasig:
(i) to him $20,005.58
(ii) to the Commonwealth $4,521.23
(b) to or on account of Ms Sebastian:
(i) to her $20,551.96
(ii) to the Commonwealth $3,932.00
(c) to or on account of Mr Rodriquez:
(i) to him $20,056.38
(ii) to the Commonwealth $4,397.32
(d) to or on account of Ms Gaitan:
(i) to her $25,556.84
(ii) to the Commonwealth $6,085.54
(e) to or on account of Mr Largado:
(i) to him $26,393.00
(ii) to the Commonwealth $7,083.67
(f) to or on account of Ms Culion:
(i) to her $6,850.19
(ii) to the Commonwealth $0.00
(apparent overpayment of $65.71)
(g) to or on account of Ms Enriquez:
(i) to her $6,542.57
(ii) to the Commonwealth $440.85