Migration Regulations 1994 - Specification under subregulation 2.72(10AA) - 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 - September 2009

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)

I, CHRIS EVANS, Minister for Immigration and Citizenship, specify for the purposes of subregulation 2.72(10AA) of Part 2A to the Migration Regulations 1994 (the Regulations) that the method for determining 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 is set out at Schedule A.

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

Dated   10 September 2009

CHRIS EVANS

 Minister for Immigration and Citizenship

SCHEDULE A

1  Definitions

relevant information may include, but is not limited to:

(a)                information in relation to statutory minimum entitlements, fair work instruments, state industrial instruments and transitional instruments that apply to Australian citizens or Australian permanent residents in similar workplaces.

(b)               local knowledge and evidence of appropriate terms and conditions of employment including information from:

(i)                 employer associations; and

(ii)               unions.

(c)                broader labour market data including:

(i)                 Australian Bureau of Statistics Employee Earnings and Hours Survey (see www.abs.gov.au);

(ii)               Australian Government’s Job Outlook (see www.joboutlook.gov.au);

(iii)            remuneration surveys; and

(iv)             job vacancy advertisements

fair work instrument and state industrial instrument have the same meaning as in the Fair Work Act 2009.

transitional instrument has the same meaning as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

2  Methodology

For subregulation 2.72(10AA), the method is:

(1)  If there is a fair work instrument, state industrial instrument or transitional instrument that applies or would apply to Australian citizens or Australian permanent residents in the same workplace at the same location and would apply to the person identified in the nomination, then the terms and conditions of employment set out in that instrument are the terms and conditions that would be provided to an Australian citizen or Australian permanent resident to perform equivalent work.

NOTE  The expressions applies and apply to, are used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of an instrument.

(2)  If subitem 2(1) does not apply, the terms and conditions of employment that would apply to Australian citizens and Australian permanent residents to perform equivalent work in the same workplace in the same location must be determined with regard to relevant information.

NOTE  The methodology in item 2 yields the terms and conditions of employment for the purposes of paragraph 2.72(10)(c) (paragraph 2.72(10AA)(a) refers).  The base rate of pay for the purposes of paragraph 2.72(10)(cc) (paragraph 2.72(10AA)(b) refers) will be established by one or more of those terms and conditions.