Migration Regulations 1994 - Specification of Minimum Salary Levels and Occupations for the Temporary Business Long Stay Visa - IMMI 08/021

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Commonwealth of Australia

Migration Regulations 1994

MINIMUM SALARY LEVELS AND OCCUPATIONS FOR THE TEMPORARY BUSINESS LONG STAY VISA

(REGULATION 1.20B, SUBREGULATION 1.20G(2) AND SUBPARAGRAPH 1.20GA(1)(a)(i))

I, CHRIS EVANS, Minister for Immigration and Citizenship, acting under regulations 1.17 and 1.20B, subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i) of the Migration Regulations 1994 (‘the Regulations’):

1. REVOKE Instrument number IMMI 07/078, signed on 8 October 2007, specifying minimum salary levels for the purposes of regulation 1.20B and occupations for the purposes of subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i) of the Regulations;

2. SPECIFY each occupation listed in Schedules A and B to this Instrument as an occupation for the purposes of subregulation 1.20G(2) of the Regulations; AND

3. SPECIFY each occupation listed in Schedules C and D to this Instrument as an occupation for the purposes of subparagraph 1.20GA(1)(a)(i) of the Regulations; AND

4. SPECIFY for the purposes of regulation 1.20B that the minimum salary level at a point in time is to be worked out in the following way and paid on a weekly, fortnightly or monthly basis:

(A) where the Subclass 457 Business (Long Stay) visa holder works an average of Umore thanU 38 hours per week in a given period:

minimum salary level = Uapplicable base salary x number of hours worked in the given period U

number of hours in an average year

(B) where the Subclass 457 Business (Long Stay) visa holder works an average of 38 hours per week in a given period or in any other case not covered by (A):

minimum salary level = Uapplicable base salary x number of weeks worked in the given period U

number of weeks in an average year

5. FOR THE PURPOSES of Item 4 of this Instrument:

(a) the number of weeks in an average year (taking into account leap years) is: 52.1775 weeks; and

(b) the number of hours in an average year (taking into account leap years and based on a 38 hour week) is: 1982.745 hours; and

(c) the applicable base salary is:

 (i) AUD 41,850 for occupations listed in Schedule A;

 (ii) AUD 57,300 for occupations listed in Schedule B;

 (iii)AUD 37,665 for regionally certified occupations listed in Schedule C;

 (iv) AUD 51,570 for regionally certified occupations listed in Schedule D;

unless the relevant Subclass 457 Business (Long Stay) visa was granted on the basis that the visa holder fell within the scope of subclause 457.223(6), in which case the applicable base salary is AUD 75,000; and

(d) the amount of salary paid to a person in a given period:

(i) includes the person’s base salary before tax and separate from any allowances, bonuses, packaged items (other than those mentioned in (ii)(B)) and the like; and

(ii) excludes any deductions from that amount except:

(A) Pay As You Go (PAYG) taxation; and

(B) Any amount that would be 100% tax deductible (for the person) or otherwise exempt from Fringe Benefits Tax (FBT)P#P.

NOTE: Deductions mentioned in (ii) may be made from amounts not included in (i).

P#PBusinesses should seek their own professional advice on whether an item is 100% tax deductible or otherwise exempt from FBT. Further information is available from the Australian Taxation Office website: TUwww.ato.gov.auUT

Illustrative examples

UExample 1U – In this example, the Department is monitoring a private hospital in Brisbane to check to see whether the hospital paid at least the minimum salary level last financial year to Susan, a nurse they sponsor on a Subclass 457 visa.

Susan worked 50 hours a week for 52 weeks (2600 total hours) and was paid a weekly salary of $875 before tax. The total payments for the financial year were $45,500.00 before tax.

Schedule A applies to Susan, as she works in a non-Information and Communication Technology occupation in a non-regional area. Therefore, the applicable base salary is $41,850 per year.

As Susan worked an average of more than 38 hours a week, the applicable minimum salary level for the financial year can be worked out by applying the formula set out in paragraph 4(A) of this Instrument:

U$41,850 x 2600 hours U= $54,878.46

1982.745

The amount of salary paid to Susan in the given period was $45,500.00, which is less than the applicable minimum salary level in the circumstances: $54,878.46. The hospital has therefore breached their undertaking to pay Susan the minimum salary level.

If Susan had only worked 38 hours a week, the hospital would have been paying above minimum salary level and therefore would not be in breach of the minimum salary level undertaking.

U
Example 2U – In this example, a Perth marketing firm wants to check whether they have met the minimum salary level for the previous fortnight pay period for Rita, a marketing specialist they sponsor on a Subclass 457 visa. This differs from Example 1 as it considers the impact 100% tax deductible items have in relation to the minimum salary level.

Rita works 38 hours a week and was paid a fortnightly payment of $1,635 before tax. Rita’s employer deducted $50 per fortnight because Rita elected to salary package a mobile phone/PDA to keep track of her many work appointments and to make work calls. In Rita’s circumstances the mobile phone/PDA is 100% tax deductible.

Rita’s fortnightly before tax salary of $1,635 has only one component using the definition of amount of salary paid to a person in a given period (at paragraph 5(d)):

– base salary including FBT exempt items: + $1,635

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Schedule A applies to Rita, as she works in a non-Information and Communication Technology occupation in a non-regional area. Therefore, the applicable base salary is $41,850 per year.

As Rita worked 38 hours per week in the given period, the minimum salary level for the previous fortnight can be worked out by applying the formula set out in paragraph 4(B) of this Instrument:

U$41,850 x 2 weeks U= $1,604.14

52.1775

As the deduction is 100% tax deductible and does not impact on the amount of salary paid to Rita in the given period ($1,635), Rita is being paid above the minimum salary level of $1,604.14.

Had the $50 deduction UnotU been 100% tax deductible or otherwise exempt from Fringe Benefits Tax, then the amount of salary paid to Rita in the given period would have been $1,585 ($1,635 - $50 deduction), which is below the minimum salary level of $1,604.14. If this were the case, Rita’s employer would have breached their undertaking to pay the minimum salary level. U
Example 3U – In this example, a computer company in Melbourne wants to check whether they have met the minimum salary level for the previous fortnight pay period for John, a software engineer they sponsor on a Subclass 457 visa. This differs from the Examples 1 and 2 as it considers the impact allowances and tax deductions in combination have in relation to the minimum salary level.

John works 38 hours a week and was paid a fortnightly payment of $2,500 before tax which included Living Away From Home Allowance (LAFHA) of $200. The business also deducted $500 from John’s before tax salary because he has elected to salary package a car. In John’s circumstances the car was not 100% tax deductible or otherwise exempt from FBT.

John’s fortnightly before tax salary of $2,500 has three components using the definition of amount of salary paid to a person in a given period (at paragraph 5(d)):

– base salary including FBT exempt items: +$2,300

– other allowances: +$200 LAFHA

– non FBT exempt deductions: - $500 salary packaged car

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Schedule B applies to John, as he works in an Information and Communication Technology occupation in a non regional area. Therefore, the applicable base salary is $57,300 per year.

As John worked 38 hours per week in the given period, the minimum salary level for the previous fortnight can be worked out by applying the formula set out in paragraph 4(B) of this Instrument:

U$57,300 x 2 weeks U= $2,196.35

52.1775

The business could use the LAFHA ($200) salary component to pay some of the $500 deduction for the car from John’s before tax pay. The $300 balance, would then be subtracted from the base salary component $2,300 – $300 = $2,000.

This means that John’s actual amount of salary paid to John for the fortnight is $2,000, which is less than the applicable minimum salary level of $2,196.35. The business has therefore breached their undertaking to pay John at least the minimum salary level.

6. This Instrument, IMMI 08/021, commences on 1 July 2008.

Dated 23 June 2008

CHRIS EVANS

Minister for Immigration and Citizenship

[NOTE 1: Regulation 1.17 of the Regulations provides that the Minister may, by notice published in the Gazette, specify matters required by individual provisions of the Regulations to be specified for the purposes of those provisions.

NOTE 2: Regulation 1.20B of the Regulations defines the term minimum salary level to mean a level of salary worked out in the way specified in a Gazette Notice for the purposes of that defined term.

NOTE 3: Subregulation 1.20G(1) of the Regulations provides which persons may nominate to the Minister an activity in which an individual is proposed to be employed by the person in Australia.

NOTE 4: Subregulation 1.20G(2) of the Regulations provides that if the person is mentioned in paragraph 1.20G(1)(b), (c), (d) or (e), the tasks of the nominated activity must correspond to the tasks of an occupation specified in a Gazette Notice for the purposes of subregulation 1.20G(2).

NOTE 5: Subparagraph 1.20GA(1)(a)(i) of the Regulations provides that a person mentioned in subregulation 1.20GA(2) may nominate to the Minister an activity in which an individual is proposed to be employed by the person in Australia, if the tasks of the nominated activity correspond to the tasks of an occupation specified in a Gazette Notice for the purposes of paragraph 1.20GA(1)(a).

NOTE 6: Subclause 457.223(6) provides that the Minister may specify in an instrument in writing the way that a level of salary is to be worked out for the purposes of applications by certain applicants for Subclass 457 Business (Long Stay) visas.]

SCHEDULE A – non-Information and Communication Technology occupations allowable under standard Subclass 457 arrangements

OTHER

Retail Butcher; meaning an activity completed in a retail outlet that sells directly to the consumer, that does not include the slaughtering of animals and requires the following qualification or equivalent experience and involves a significant majority of the following tasks:

• advises customers on the suitability and uses of cuts of meat;
• operates machinery to grind, mix, mince or tenderise meat;
• prepares meat for sale by removing bones, trimming fat and cutting meat to shape and size for display or as ordered;
• prepares crumbed cuts of meat and marinates and seasons special cuts;
• selects and prepares meat to produce smallgoods;
• may assist in menu planning and scheduling, and in estimating food production costs;
• may operate cash registers, accept payments and prepare sales invoices.

The entry requirement for this occupation is an AQF Certificate III or higher qualification, or at least 3 years skilled experience.

Specialty Small Goods Maker; meaning an activity which does not include the slaughtering of animals and requires the following qualification or equivalent experience and involves a significant majority of the following tasks:

• prepares meat by removing bones and trimming fat;
• cuts, minces and grinds meat and fat;
• makes seasonings and pickles by mixing spices, salt and other ingredients;
• adds seasonings to ground meat;
• operates filling machines, smoking chambers and cooking kettles and vats;
• cures meat.

The entry requirement for this occupation is an AQF Certificate III or higher qualification, or at least 3 years skilled experience.

SCHEDULE B – Information and Communication Technology occupations allowable under standard Subclass 457 arrangements

SCHEDULE C – non- Information and Communication Technology occupations allowable under Subclass 457 certified regional employment arrangements

ALL OCCUPATIONS in Major Groups 1 to 7 of the Australian Standard Classification of Occupations (“ASCO Second Edition”), EXCLUDING:

 those occupations listed in Schedule D to this instrument;

 apprentice tradespersons and related workers;

 assistant and trainee positions;

 butchers, smallgoods makers, slaughterpersons and supervisors of meat tradespersons - except occupations coming within the definition of “retail butcher” or “specialty small goods maker” in Schedule A to this Instrument;

 occupations that are “not elsewhere classified” in ASCO Major Groups 5, 6 or 7;

 occupations that, for legislative reasons, can only be filled by an Australian citizen or permanent resident;

 occupations of religious workers for which there are separate specialised temporary entry visa subclasses;

 tour guides; and

 furniture removalists, delivery drivers, automobile drivers and heavy truck drivers, except heavy truck drivers working primarily on mining and construction sites as defined below.

Mining or Construction Site Heavy Truck Driver; meaning an activity primarily undertaken at mining or construction sites involving a significant majority of the following tasks:

• drives heavy trucks, requiring specially endorsed classes of license, to transport bulky goods and materials, directly related to the mining or construction industries;

• manoeuvres vehicles into position for loading or unloading;

• assists with or carries out loading or unloading operations, using various lifting or tipping devices;

• estimates weights to comply with load limitations, and ensures safe distribution of weight;

• ensures goods are stowed and securely covered, to prevent loss and damage;

• verifies loading documents, checks condition of goods and obtains certification of deliveries;

• checks destinations of goods and determines most appropriate routes;

• maintains logbooks detailing vehicle movements;

• carries out minor maintenance to vehicles, and arranges major maintenance and repairs;

• may transport dangerous goods, such as explosives or petroleum products.

The entry requirement for this occupation is an AQF Certificate II or higher qualification or at least 1 years relevant experience. Registration or licensing is required.

SCHEDULE D – Information and Communication Technology occupations allowable under Subclass 457 certified regional employment arrangements