Migration Regulations 1994 - Minimum Salary Levels and Occupations for the Temporary Business Long Stay Visa Notice 2009/2

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Minimum Salary Levels and Occupations for the Temporary Business Long Stay Visa Notice 2009/2

Migration Regulations 1994

I, CHRIS EVANS, Minister for Immigration and Citizenship, make this Notice under the definition of minimum salary level in regulation 1.20B, paragraph 1.20CB(1)(i), subregulation 1.20G (2) and subparagraph 1.20GA (1) (a) (i) of the Migration Regulations 1994.

Dated 16 June 2009

CHRIS EVANS

Minister for Immigration and Citizenship

1 Name of Notice

This Notice is the Minimum Salary Levels and Occupations for the Temporary Business Long Stay Visa Notice 2009/2.

2 Commencement

This Notice commences on 1 July 2009.

3 Revocation of Instrument number IMMI 09/032

Instrument number IMMI 09/032, made on 6 May 2009, is revoked.

4 Definition

In this Notice:

Regulations means the Migration Regulations 1994.

5 Specification of occupations for subregulation 1.20G (2)

Each occupation listed in Schedules A and B is specified for subregulation 1.20G (2) of the Regulations.

6 Specification of occupations for subparagraph 1.20GA (1) (a) (i)

Each occupation listed in Schedules C and D is specified for subparagraph 1.20GA (1) (a) (i) of the Regulations.

7 Minimum salary level

(1) This item specifies the method for working out a level of salary at any point in time for the definition of minimum salary level in regulation 1.20B of the Regulations and the minimum salary for paragraph 1.20CB(1)(i).

(2) For this item, a level of salary must be paid on a weekly, fortnightly or monthly basis.

(3) If:

(a) a person holds a Subclass 457 Business (Long Stay) visa; and

(b) the person works, on average, more than 38 hours per week in a period;

the person’s minimum salary level, for the period, is:

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where:

ABS is the person’s applicable base salary.

HW is the number of hours worked by the person in the period.

Note The denominator 1982.745 represents the number of working hours in an average year, based on a 38 hour working week and taking into account leap years.

(4) If:

(a) a person holds a Subclass 457 Business (Long Stay) visa; and

(b) subitem (3) does not apply to the person;

the person’s minimum salary level, for the period, is:

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where:

ABS is the person’s applicable base salary.

W is the number of weeks in the period.

Note The denominator 52.1755 represents the number of weeks in an average year, taking into account leap years.

8 Applicable base salary

(1) This item specifies the applicable base salary of the holder of a Subclass 457 Business (Long Stay) visa.

(2) [Note: this paragraph omitted 1 July 2009]

Information and Communication Technology Occupations

(3) If:

(a) a person was granted a Subclass 457 Business (Long Stay) visa on the basis of a nomination of an occupation under regulation 1.20G of the Regulations; and

(b) the visa was granted on the basis of an occupation that was nominated in the period starting on 11 February 2004 and ending at the end of 8 April 2005; and

(c) the occupation mentioned in paragraphs (a) and (b) is an occupation specified in Schedule B;

the person’s applicable base salary is $50 375.

(4) If:

(a) a person was granted a Subclass 457 Business (Long Stay) visa prior to 1 July 2006; and

(b) the visa was granted on the basis of a nomination of an occupation under regulation 1.20G of the Regulations; and

(c) the visa was granted on the basis of an occupation that was nominated in the period starting on 9 April 2005 and ending at the end of 2 May 2006; and

(d) the occupation mentioned in paragraphs (a) and (b) is an occupation specified in Schedule B;

the person’s applicable base salary is $54 860.

(5) If:

(a) a person was granted, or may be granted, a Subclass 457 Business (Long Stay) visa on the basis of a nomination of an occupation under regulation 1.20G of the Regulations; and

(b) either, or both, of the following subparagraphs apply:

(i) the visa was granted on the basis of an occupation that was nominated on or after 3 May 2006;

(ii) the visa was granted, or may be granted, on or after 1 July 2006; and

(c) the occupation mentioned in paragraph (a) and subparagraph (b) (i) is an occupation specified in Schedule B;

the person’s applicable base salary is $61 920.

Non-Information and Communication Technology Occupations

(6) If:

(a) a person was granted a Subclass 457 Business (Long Stay) visa on the basis of a nomination of an occupation under regulation 1.20G of the Regulations; and

(b) the visa was granted on the basis of an occupation that was nominated in the period starting on 11 February 2004 and ending at the end of 8 April 2005; and

(c) the occupation mentioned in paragraph (b) is not an occupation that is specified in Schedule B;

the person’s applicable base salary is $40 755.

(7) If:

(a) a person was granted a Subclass 457 Business (Long Stay) visa prior to 1 July 2006; and

(b) the visa was granted on the basis of a nomination of an occupation under regulation 1.20G of the Regulations; and

(c) the visa was granted on the basis of an occupation that was nominated in the period starting on 9 April 2005 and ending at the end of 2 May 2006; and

(d) the occupation mentioned in paragraphs (b) and (c) is not an occupation that is specified in Schedule B;

the person’s applicable base salary is $42 255.

(8) If:

(a) a person was granted, or may be granted, a Subclass 457 Business (Long Stay) visa on the basis of a nomination of an occupation under regulation 1.20G of the Regulations; and

(b) either, or both, of the following subparagraphs applies:

(i) the visa was granted on the basis of an occupation that was nominated on or after 3 May 2006;

(ii) the visa was granted, or may be granted, on or after 1 July 2006; and

(c) the occupation mentioned in paragraph (a) and subparagraph (b) (i) is not an occupation that is specified in Schedule B;

the person’s applicable base salary is $45 220.

Certified Regional Employment Arrangements

(9) If:

(a) a person was granted, or may be granted, a Subclass 457 Business (Long Stay) visa on or after 1 July 2006; and

(b) the visa was granted, or may be granted, on the basis of a nomination of an occupation under regulation 1.20GA of the Regulations; and

(c) the occupation mentioned in paragraph (b) is not an occupation specified in Schedule D;

the person’s applicable base salary is $40 705.

(10) If:

(a) a person was granted, or may be granted, a Subclass 457 Business (Long Stay) visa on or after 1 July 2006; and

(b) the visa was granted or may be granted on the basis of a nomination of an occupation under regulation 1.20GA of the Regulations; and

(c) the occupation mentioned in paragraph (b) is an occupation specified in Schedule D;

the person’s applicable base salary is $55 725.

Visa holder to whom subclause 457.223 (6) applied

(11) If:

(a) a person was granted, or may be granted, a Subclass 457 Business (Long Stay) visa on or after 10 September 2007; and

(b) the visa was granted, or may be granted, on the basis that subclause 457.223 (6) of Schedule 2 of the Regulations applied to the person;

the person’s applicable base salary is $81 040.

Note Nominations made under regulation 1.20GA relate to certified regional employment arrangements under the Subclass 457 visa program. These nominations are certified by a regional certifying body and visa holders are required to live and work in specified regional areas. All other nominations are made under regulation 1.20G.

9 Amount of salary paid to a person in a given period

For comparison with the minimum salary level calculated under item 7, the amount of salary paid to a person in a given period:

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

(b) excludes any deductions from that amount except:

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

(ii) any amount that would be 100% tax deductible (for the person) or otherwise exempt from Fringe Benefits Tax (FBT)P

Note 1 Deductions excluded by paragraph (b) may be made from amounts not included in paragraph (a).

Note 2 Businesses 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 (2 600 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.

Susan falls within the scope of subitem 8(7), as:

• She was granted her Subclass 457 visa prior to 1 July 2006 (paragraph 8(7)(a) refers).
• Her nomination was not certified by a Regional Certifying Body (Brisbane is not a regional area) and therefore made under regulation 1.20G of the Regulations (paragraph 8(7)(b) and the note at the end of item 8 refer).
• She was nominated by her employer between 9 April 2005 and 2 May 2006 (paragraph 8(7)(c) refers).
• The nominated position (nursing) is not an Information and Communication Technology occupation (paragraph 8(7)(d) and Schedule B refer).

In these circumstances her applicable base salary is $42 255.

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 subitem 7 (3) of this Notice:

U$42 255 x 2 600 hours U= $55 409.55

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: $55 409.55. 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.

UExample 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 salary of $1 750 before tax. Rita elected to salary package a mobile phone/PDA to keep track of her many work appointments and to make work calls and agreed in writing to forego $50 per fortnight of her salary to make the lease payments. In Rita’s circumstances the mobile phone/PDA is 100% tax deductible.

Rita’s fortnightly before tax salary of $1 750 has only one component, using the concept of amount of salary paid to a person in a given period (at item 9):

– base salary including FBT exempt items: + $1 750

Rita falls within the scope of subitem 8(8), as:

• Her nomination was not certified by a Regional Certifying Body (Perth is not a regional area) and therefore made under regulation 1.20G of the Regulations (paragraph 8(8)(a) and the note at the end of item 8 refer);
• Her visa was granted after 1 July 2006 (subparagraph 8(8)(b)(ii) refers)
• The nominated occupation (marketing specialist) is not an Information and Communication Technology occupation (paragraph 8(8)(c) and Schedule B refer).

Therefore, the applicable base salary is $45 220 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 subitem 7 (4) of this Notice:

U$45 220 x 2 weeks U= $1 733.31

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 ($1 750), Rita is being paid above the minimum salary level of $1 733.31.

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 $1 700 ($1 750 - $50 deduction), which is below the minimum salary level of $1 733.31. 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 Bourke 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 concept of amount of salary paid to a person in a given period (at item 9):

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

– other allowances: +$200 LAFHA

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

John falls within the scope of subitem 8(10), as:

• His visa was grated after 1 July 2006 (paragraph 8(10)(a) refers);
• His nomination was certified by a Regional Certifying Body and therefore made under regulation 1.20GA of the Regulations (paragraph 8(10)(b) and the note at the end of item 8 refer);
• The nominated occupation (software engineer) is an Information and Communication Technology occupation (paragraph 8(10)(c) and Schedule D refer).

Therefore, the applicable base salary is $55 725 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 subitem 7 (4) of this Notice:

U$55 725 x 2 weeks U= $2 135.98

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 $2 135.98. The business has therefore breached their undertaking to pay John at least the minimum salary level.

Note 1 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 2 Paragraph 1.20CB(1)(i) of the Regulations provides that a sponsorship undertaking that must be made by a sponsor is that the sponsor must ensure that, if there is a gazetted minimum salary level in force in relation to the nominated position to be occupied by a sponsored person, the person will be paid at least that salary.

Note 3 Subregulation 1.20G(1) of the Regulations specifies 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 Smallgoods 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 4 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 Smallgoods maker” in Schedule A to this Instrument;

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

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

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