Regulation 2.79 — Obligation to ensure equivalent terms and conditions of employment—Subclass 457 (Temporary Work (Skilled)) visa, Subclass 482 (Skills in Demand) visa and Subclass 482 (Temporary Skill Shortage) visa

2.79 Obligation to ensure equivalent terms and conditions of employment— Subclass 457 (Temporary Work (Skilled)) visa, Subclass 482 (Skills in Demand) visa and Subclass 482 (Temporary Skill Shortage) visa

(1) Subject to subregulation (1A):

(a) this regulation applies to a person who is or was a standard business sponsor of a primary sponsored person if:

(i) the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Skills in Demand) visa or a Subclass 482 (Temporary Skill Shortage) visa; or

(ii) the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Skills in Demand) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

(b) this regulation applies to a person who is or was a party to a work agreement (other than a Minister), and who is or was an approved work sponsor of a primary sponsored person, if:

(i) the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Skills in Demand) visa or a Subclass 482 (Temporary Skill Shortage) visa; or

(ii) the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Skills in Demand) visa or a Subclass 482 (Temporary Skill Shortage) visa.

(1A) This regulation does not apply to a standard business sponsor of a primary sponsored person if:

(a) either:

(i) the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Skills in Demand) visa or a Subclass 482 (Temporary Skill Shortage) visa; or

(ii) the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Skills in Demand) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

(b) the annual earnings of the primary sponsored person are equal to or greater than the amount specified by the Minister in an instrument in writing for this paragraph.

(3) The person must ensure that:

(a) if:

(i) the person is mentioned in paragraph (1)(a); and

(ii) the nomination by the person of an occupation in which the primary sponsored person is identified was made before 18 March 2018;

the terms and conditions of employment provided to the primary sponsored person are:

(iii) no less favourable than the terms and conditions of employment that the Minister was satisfied, under paragraph 2.72(10)(c) (as in force before 18 March 2018), were no less favourable than the terms and conditions of employment that are provided, or would be provided, to an Australian citizen or an Australian permanent resident; and

(iv) no less favourable than the terms and conditions of employment that the person provides, or would provide, to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location; or

(b) if the person is mentioned in paragraph (1)(a) and the nomination by the person of an occupation in which the primary sponsored person is identified was made on or after 18 March 2018:

(i) the primary sponsored person’s annual earnings in relation to the occupation are not less than the annual earnings the person indicated, at the time the nomination was approved, would be provided to the primary sponsored person for the occupation; and

(ii) the primary sponsored person’s earnings in relation to the occupation are not less than the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work in the same workplace at the same location; and

(iii) the employment conditions (other than in relation to earnings) that apply to the primary sponsored person are no less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

(e) if the person is mentioned in paragraph (1)(b), the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment set out in the work agreement.

(4) The obligations mentioned in subregulation (3):

(a) start to apply on:

(i) the day on which the Minister approves a nomination by the person in which the primary sponsored person is identified; or

(iii) if the primary sponsored person does not hold a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Skills in Demand) visa or a Subclass 482 (Temporary Skill Shortage) visa on the day the Minister approves the nomination—the day on which the primary sponsored person is granted the visa on the basis of being identified in an approved nomination by the person; and

(b) end on the earlier of:

(i) the day on which the primary sponsored person is granted a further substantive visa that:

(A) is not a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Skills in Demand) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

(B) is in effect; and

(ii) the day on which the primary sponsored person ceases employment with the person.