Commonwealth Consolidated Regulations Commonwealth Consolidated Regulations(1) This regulation applies to a person who is:
(a) a standard business sponsor; or
(b) a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Business (Long Stay)) visa.
(2) For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3) The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4) The Minister is satisfied that the person is:
(a) a standard business sponsor; or
(b) a party to a work agreement (other than a Minister).
(5) The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6) If the person identifies a holder of a Subclass 457 (Business (Long Stay)) visa (the visa holder ) for subregulation (5), the Minister is satisfied that the person:
(a) has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b) if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation -- the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7) For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(8) The Minister is satisfied that the person has provided the following information as part of the nomination:
(a) if there is a 6‑digit ASCO code for the nominated occupation -- the 6-digit ASCO code;
(b) if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor -- the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c) if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement -- the name of the occupation as it appears in the work agreement;
(d) the location or locations at which the nominated occupation is to be carried out.
(9) The Minister is satisfied that either:
(a) there is no adverse information known to Immigration about the person or a person associated with the person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
Note The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).
(10) If the person is a standard business sponsor -- the Minister is satisfied that:
(a) the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(b) if required by the instrument mentioned in paragraph (a) -- the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c) the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the person's workplace at the same location; and
(cc) the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d) the person has certified as part of the nomination, in writing, that:
(i) the duties of the position include a significant majority of the duties of:
(A) the nominated occupation listed in the ASCO; or
(B) the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A) the nominated occupation is a position in the business of the standard business sponsor; or
(B) the nominated occupation is an occupation specified by the Minister in an instrument in writing for this paragraph; and
(iii) if the person lawfully operates a business in Australia:
(A) the nominated occupation is a position with a business, or an associated entity, of the person; or
(B) the nominated occupation is an occupation specified by the Minister in an instrument in writing for this paragraph; and
(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A) for the occupation in the ASCO; or
(B) if there is no ASCO code for the nominated occupation -- for the occupation in the instrument in writing made for the purpose of paragraph (a).
(10AA) For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person's workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a) the terms and conditions of employment; and
(b) 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.
(10AB) Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A) The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a) the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b) the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c) the Minister considers it reasonable to do so.
(11) If the person is a party to a work agreement (other than a Minister) -- the Minister is satisfied that:
(a) the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b) the person has certified as part of the nomination, in writing, that:
(i) the duties of the position include a significant majority of the duties of:
(A) the nominated occupation listed in the ASCO; or
(B) the nominated occupation specified in the work agreement; and
(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12) If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement -- the Minister is satisfied that the requirements of the work agreement have been met.