TSS: simplifying salary requirements

Generally, salary requirements for a TSS nomination have 3 limbs: 1) annual market salary rate (AMSR), excluding non-monetary benefits, must be at least $53,900; 2) nominee's annual earnings must be at least the AMSR. 3) annual earningsexcluding non-monetary benefits, must be at least $53,900. But if annual earnings are at least the AMSR (limb 2) and the AMSR, excluding non-monetary benefit, is at least $53,900 (limb 1), is it not the case that the annual earnings, excluding non-monetary benefits, will necessarily be at least $53,900, thus rendering limb 3 redundant? Not really, as we explain.

From 18 March 2018 changes, r 2.72 of the Migration Regulations 1994 (Cth) has included the following provisions:

(15)  Subject to subregulation (16), if:

(a)  the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

(b)  the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

the Minister is satisfied that: 

(c)  the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and 

...

Before setting out what the 3 new limbs concerning salary rates are, it is important to discuss the above provisions.

First, those 3 limbs only apply if the occupation is nominated in the Short-term or Medium-term streams. In other words, those 3 limbs do not apply to the Labour Agreement stream (r 2.72(15)(a));

Second, those 3 limbs do not apply if the visa applicant's annual earnings will be at least "the amount specified by the Minister in a legislative instrument" (r 2.72(15)(b)). Under IMMI 18/033, that amount is $250,000.

Third, if both rr 2.72(15)(a) and (b) are satisfied, we need to determine what the annual market salary rate (AMSR) is, according to the instrument made under r 2.72(17).

That instrument is the same IMMI 18/033, which prescribes that the AMSR should be calculated as follows:

7   Method for determining the annual market salary rate where an Australian worker is performing equivalent work

(1)     For the purposes of subregulation 2.72(17) of the Regulations, where a there is a fair work instrument, state industrial instrument or transitional instrument applicable to an Australian worker who is:

(a)          employed in the same workplace as the nominee; and

(b)          at the same location as the nominee; and

(c)          performing equivalent work to the nominee;

the [AMSR] for an equivalent nominated occupation or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings of an Australian worker contained in those instruments.

(2)     Where there is no fair work instrument, state industrial instrument or transitional instrument that is applicable to an Australian worker who is:

(a)          employed in the same workplace as the nominee; and

(b)          at the same location as the nominee; and

(c)          performing equivalent work to the nominee;

the [AMSR] for an equivalent nominated occupation or an occupation in relation which a position is nominated under regulation 5.19 of the Regulations, must be determined by reference to relevant employment documents.

8   Method of determining the annual market salary rate where there is not an Australian worker performing equivalent work

For the purposes of subregulation 2.72(17) of the Regulations, and where section 7 of this instrument does not apply and:

(a)          wherethere is a fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the [AMSR] for a nominated occupation, or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings of an equivalent Australian worker specified in those instruments.

(b)          Where there is no fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the [AMSR] for a nominated occupation or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information.

Once the AMSR is calculated, we then need to look at each of those 3 new limbs, as follows.

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