Nomination

 
 

LABOUR MARKET TESTING

 The labour market testing changes are contained in the Migration Amendment (Temporary Sponsored Visas) Act 2013, which became law on 23 November 2013 and of course remains the law at this point in time.

140GBA  Labour market testing—condition

Scope

(1)  This section applies to a nomination by an approved sponsor, under section 140GB, if:

(a)  the approved sponsor is in a class of sponsors prescribed by the regulations[5]; and

(b)  the sponsor nominates:

(i)  a proposed occupation for the purposes of paragraph 140GB(1)(b); and

(ii)  a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination; and

(c)  it would not be inconsistent with any international trade obligation of Australia determined under subsection (2) to require the sponsor to satisfy the labour market testing condition in this section, in relation to the nominated position.

(2)  For the purposes of paragraph (1)(c), the Minister may, by legislative instrument[6], determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries.

Labour market testing condition

(3)  The labour market testing condition is satisfied if:

(a)  the Minister is satisfied that the approved sponsor has undertaken labour market testing in relation to the nominated position within a period determined under subsection (4) in relation to the nominated occupation; and

(b)  the nomination is accompanied by:

(i)  evidence in relation to that labour market testing (see subsections (5) and (6)); and

(ii)  if one or more Australian citizens or Australian permanent residents were, in the previous 4 months, made redundant or retrenched from positions in the nominated occupation in a business, or an associated entity, of the approved sponsor—information about those redundancies or retrenchments; and

(d)  having regard to that evidence, and information (if any), the Minister is satisfied that:

(i)  a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position; and

(ii)  a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.

(4)  For the purposes of paragraph (3)(a), the Minister may, by legislative instrument, determine a period within which labour market testing is required in relation to a nominated occupation.[7]

(4A)  Despite paragraph (3)(a) and subsection (4), if there have been redundancies or retrenchments as mentioned in subparagraph (3)(b)(ii), the labour market testing must be undertaken after those redundancies and retrenchments.

Evidence of labour market testing

(5)  For the purposes of subparagraph (3)(b)(i), the evidence in relation to the labour market testing:

(a)  must include information about the approved sponsor’s attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position and any other similar positions (see also subsection (6)); and

(b)  may also include other evidence, such as:

(i)  copies of, or references to, any research released in the previous 4 months relating to labour market trends generally and in relation to the nominated occupation; or

(ii)  expressions of support from Commonwealth, State and Territory government authorities with responsibility for employment matters; or

(iii)  any other type of evidence determined by the Minister, by legislative instrument, for this subparagraph.

(6)  For the purposes of paragraph (5)(a), the information mentioned:

(a)  must include details of:

(i)  any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the approved sponsor; and

(ii)  fees and other expenses paid (or payable) for that advertising; and

(b)  may also include other information, such as:

(i)  information about the approved sponsor’s participation in relevant job and career expositions; or

(ii)  details of any other fees and expenses paid (or payable) for any recruitment attempts mentioned in paragraph (5)(a) (including any participation mentioned in subparagraph (i) of this paragraph); or

(iii)  details of the results of such recruitment attempts, including details of any positions filled as a result.

(6A)  If the approved sponsor elects to provide other evidence and information as mentioned in paragraphs (5)(b) and (6)(b), the Minister may take that evidence and information into account. But if the approved sponsor elects not to provide such other evidence or information, the Minister is not to treat the nomination less favourably merely because of that fact.

Definitions

(7)  In this section:

associated entity has the same meaning as in Part 2A of the regulations.

Australian permanent resident means an Australian permanent resident within the meaning of the regulations.

eligible temporary visa holder: a person is an eligible temporary visa holder in relation to a nomination by an approved sponsor if, at the time when the nomination is made:

(a)  the person is the holder of a temporary visa referred to in the regulations as a Subclass 417 (Working Holiday) visa or a Subclass 462 (Work and Holiday) visa; and

(b)  the person is employed in the agricultural sector by the approved sponsor (or an associated entity of the approved sponsor); and

(c)  the temporary visa does not prohibit the person from performing that employment.

labour market testing, in relation to a nominated position, means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or Australian permanent resident is readily available to fill the position.

 

Exemptions to Labour market testing

 140GBC  Labour market testing—skill and occupational exemptions

Scope

(1)  This section applies to a nomination by an approved sponsor, under section 140GB, if the sponsor nominates:

(a)  a proposed occupation for the purposes of paragraph 140GB(1)(b); and

(b)  a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination.

Skill and occupational exemptions

(2)  The approved sponsor is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if:

(a)  either or both of the following are required for the nominated position, in relation to the nominated occupation:

(i)  a relevant bachelor degree or higher qualification, other than a protected qualification;

(ii)  5 years or more of relevant experience, other than protected experience; and

 

(b) the nominated occupation is specified for the purposes of this subsection under subsection  (4)Determined by Legislative Instrument Immi 13/137 dated  18 November 2013 to be ‘all occupations that are classified in the ANZSCO as Skill Level 1’

 

(3)  The approved sponsor is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if:

(a)  either or both of the following are required for the nominated position, in relation to the nominated occupation:

(i)  a relevant associate degree, advanced diploma or diploma covered by the AQF, other than a protected qualification;

(ii)  3 years or more of relevant experience, other than protected experience; and

 

(b) the nominated occupation is specified for the purposes of this subsection under subsection  (4)Determined by Legislative Instrument Immi 13/136 dated  18 November 2013, 2013 to be ‘all occupations that are classified in the ANZSCO as Skill Level 2’

Legislative instrument

(4)  The Minister may, by legislative instrument:

(a)  specify an occupation (or occupations) for the purposes of subsection (2); and

(b)  specify an occupation (or occupations) for the purposes of subsection (3).

(5)  Despite subsection 44(2) of the Legislative Instruments Act 2003, section 42 (disallowance) of that Act applies to an instrument made under subsection (4).

Definitions

(6)  In this section:

AQF means the Australian Qualifications Framework within the meaning of the Higher Education Support Act 2003.

protected experience means experience in the field of engineering (including shipping engineering) or nursing.

protected qualification means a qualification (however described) in engineering (including shipping engineering) or nursing.

 

The practice point above is that if an employer is able to couch the nomination within one of those exemptions referred to above then the added responsibility of labour market testing is taken away.

TRADE AGREEMENT EXEMPTIONS

Here are some further exemptions. Australia has signed various ‘free’ trade treaties with various countries which limit the ability of Australia to demand labour market testing. This comes from s 140GBA(2) which states :

 

(2)        For the purposes of paragraph (1)(c), the Minister may, by legislative instrument, determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries

 

These treaties are set out in the legislative instrument IMMI 14/107, F20131954, dated 6 November 2014 and commences immediately after the Korea-Australia Free Trade Agreement enters into force.  Paragraph (a) to (h) are already in force and the Legislative Instrument of 6 November 2014 adds South Korea to the list.

 

(Section 140GBA(2))

I, MICHAELIA CASH, Assistant Minister for Immigration and Border Protection, acting under section 140GBA of the Migration Act 1958 (‘the Act’) hereby:

DETERMINE for the purposes of subsection 140GBA(2) of the Act the following obligations arising under international trade agreements under which the imposition of labour market testing would be inconsistent with those obligations:

(a)    the Protocol on Trade in Services to the Australia-New Zealand Closer Economic Relations Trade Agreement:

(i)         Executives and Senior Managers as Intra-Corporate Transferees;

(ii)        Specialists as Intra-Corporate Transferees;

(iii)       Independent Executives;

(iv)       Contractual Service Suppliers.

(b)    the General Agreement on Trade in Services at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization:

(i)         Executives and Senior Managers as Intra-Corporate Transferees;

(ii)        Independent Executives;

(iii)       Specialists who have been nominated following two years full-time employment in Australia with the same nominating employer.

(c)    the Singapore-Australia Free Trade Agreement:

(i)         Executives and Senior Managers as Intra-Corporate Transferees;

(ii)        Specialists as Intra-Corporate Transferees;

(iii)       Independent Executives;

(iv)       Specialists who have been nominated following two years full-time employment in Australia with the same nominating employer.

(d)    the Thailand-Australia Free Trade Agreement:

(i)         Executives and Senior Managers as Intra-Corporate Transferees;

(ii)        Specialists as Intra-Corporate Transferees;

(iii)       Independent Executives;

(iv)       Contractual Service Suppliers.

(e)    the Australia-United States Free Trade Agreement:

(i)         Executives and Senior Managers as Intra-Corporate Transferees;

(ii)        Independent Executives;

(iii)       Specialists who have been nominated following two years full-time employment in Australia with the same nominating employer.

(f)     the Australia-Chile Free Trade Agreement:

(i)         Executives and Senior Managers as Intra-Corporate Transferees;

(ii)        Specialists as Intra-Corporate Transferees;

(iii)       Independent Executives;

(iv)       Contractual Service Suppliers.

(g)    the ASEAN-Australia-New Zealand Free Trade Agreement:

(i)         Executives and Senior Managers as Intra-Corporate Transferees;

(ii)        Specialists as Intra-Corporate Transferees;

(iii)       Independent Executives;

(iv)       Specialists who have been nominated following two years full-time employment in Australia with the same nominating employer.

(h)    the Malaysia-Australia Free Trade Agreement:

(i)         Executives and Senior Managers as Intra-Corporate Transferees;

(ii)        Specialists as Intra-Corporate Transferees;

(iii)       Independent Executives;

(iv)       Specialists who have been nominated following two years full-time employment in Australia with the same nominating employer.

(i)         The Korea-Australia Free Trade Agreement:

(i)         Executives and Senior Managers as Intra-Corporate Transferees;

(ii)        Specialists as Intra-Corporate Transferees;

(iii)       Independent Executives;

(iv)       Contractual Services Suppliers.

 

On 23rd November 2015, the legislative instrument IMMI 15/133, F2015L01850 came into effect, exempting the following positions from Labour Market Testing as part of Australia’s trade obligations under the China-Australia Free Trade Agreement:

  1. a)The China-Australia Free Trade Agreement:

(i)                      Executives, Senior Managers and Managers, as Inter-Corporate Transferees;

(ii)                    Specialists as Intra-Corporate Transferees;

(iii)                  Independent Executives; and

(iv)                  Contractual Service Suppliers.

 

These exemptions are well worth looking at in more detail. Paragraph (b) applies to all countries who member of the GATT, which is just about everyone.

Plus by legislative instrument, IMMI 13/137 [in effect on and from 23/11/2013 F2013L01952  [20/11/2013] all occupations in ANZCO levels 1 and 2 are exempt provided they meet the skill and experience requirements.  This consists of every occupation on the Skilled Occupation List (SOL) except trades and a huge range of administrative and technical occupations excluding trades.

Here is what the PAM says about Labour Market Testing

 

60.1       Information about attempts to recruit Australian workers

The application must be accompanied by evidence that includes information about the sponsor’s attempts to recruit suitably qualified and experienced Australian citizens and Australian permanent residents to the position.

60.2       Advertising

The information relating to the sponsor’s attempts to recruit an Australian worker must include evidence of any advertising (paid or unpaid) of the position, and any similar positions. The advertising may have been undertaken by a third party, provided the third party was commissioned or authorised by the applicant to advertise the position. There is no requirement that the applicant must have placed the advertisement themselves.

If an applicant provides a document containing details of any advertising undertaken relating to the nominated position or similar positions, decision makers may consider this requirement met with no further enquiry unless there are indications that the claims have been falsely given or there are other integrity concerns.

60.3       Advertising fees

If an applicant has included evidence relating to advertising the nominated position, they must also provide details of the fees and any other expenses paid (or payable) for that advertising.

60.4       Other recruitment attempts

The information relating to the sponsor’s attempts to recruit an Australian worker may also include information about the applicant’s involvement in relevant job and career expositions, details of fees and expenses paid (or payable) for any other types of recruitment attempts, and details of the results of such recruitment attempts including details of any positions filled as a result.

61              Discretionary evidence

In addition to evidence that includes information about the sponsor’s attempts to recruit suitably qualified and experienced Australian citizens and Australian permanent residents to the position, the applicant may also include other evidence as described below. If a sponsor chooses to include such other evidence, decision makers may take this evidence into account. If a sponsor chooses not to include any other evidence, decision makers are not to treat the application less favourably merely because of this fact.

61.1       Research

Applicants may choose to support their claims with copies of, or references to, any research relating to labour market trends generally, or in relation to the nominated occupation. Such research should only be taken into consideration if it has been released in the four months prior to the application.

The writer detects some softening in Immigration’s approach to labour market testing – see the following downloaded from the Immigration website 18 October 2014:

Do I have to conduct paid advertising to meet the labour market testing evidence requirement for the subclass 457?

o. Paid advertising will not be considered more favourably than free advertising for the purpose of evidencing labour market testing.

Do I have to provide details of the recruitment process such as records of interview or copies of job applications received when providing evidence of labour market testing?

o. You are required to provide evidence of your recruitment efforts (advertising etc) and a question on the eVisa nomination form asks you to explain how you determined that there were no suitably qualified Australian workers available to fill the position. You are not required to provide copies of applications received or records of interviews with your application. However, you may be requested to provide further evidence for clarification once assessment of your application has commenced.

Immigration supplies a document called ‘the Domestic Recruitment Summary Table’ which applicants can use to assist in proving meeting the labour market testing requirements although this is not compulsory. That document is part of the accompanying material.

 

NOMINATION OVERVIEW

 

Must be a Standard Business Sponsor – Reg 2.72(4)(a)

As Reg 2.72 states:

(4) The Minister is satisfied that the person is:

(a) a standard business sponsor;

Must include the name of the 457 Visa Applicant / Holder – Reg 2.72(5)

The visa applicant’s name must be in the nomination:

(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.

 

ANZSCO Occupation – Reg 2.72(8A)

The nomination must set out the occupation using the ANZCO code:

(8A) …. the Minister is satisfied that the person has provided the following information as part of the nomination:

(a) if there is a 6-digit ANZSCO code for the nominated occupation — the name of the occupation and the corresponding 6-digit ANZSCO code;

(b) if:

(i) there is no 6-digit ANZSCO code for the nominated occupation; and

(ii) the person is a standard business sponsor;

the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

(c) if:

(i) there is no 6-digit ANZSCO code for the nominated occupation; and

(ii) the person is a party to a work agreement;

the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

(d) the location or locations at which the nominated occupation is to be carried out.

 

Terms and Conditions of Employment – Reg 2.72(10)(c)

Here are the other regulatory requirements for the nomination (reg 2.72(10)):

(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

 [NB. Reg 2.72(10)(c) has been amended by to clarify that terms and conditions of employment include enterprise agreements under Fair Work. The new amendment will come into effect on 1st December 2015.]

 

Base Rate of Pay, Guaranteed Annual Earnings & TSMIT – Reg 2.72(10)(cc), (10AA), (10AB), (10A)

(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

[No need for this if the base rate of pay is $250,000 see 10AB below]

(d) ….

(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. [$250,000]

(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.

Here is what the PAM says about this last requirement in 10A:

If the officer is satisfied that the guaranteed earnings are above the TSMIT, the delegate should then consider whether it is reasonable to take account of the additional earnings in the circumstances. This assessment goes to the nature, rather than quantum, of the earnings.

Given the purpose of the TSMIT is to maximise the likelihood that the visa holder can independently provide for themselves in Australia, it may not be reasonable to consider additional earnings to the extent to which those earnings are not directed toward the cost of living expenses.

Conversely, it may be reasonable to take into account additional earnings in circumstances where if the income of the person is greater than it would otherwise be if their remuneration was structured in such a way that the base rate of pay was greater than the TSMIT. This could include, for example, the payment of living away from home allowance (LAFHA) to compensate the nominated person for additional expenses incurred as part of undertaking the employment. If LAFHA is included as part of the guaranteed earnings, officers should consider it only in terms of the gross dollar amount, not its imputed tax benefit.

The following example is illustrative of the point immediately above.

Example

 

ABC Pty Ltd is an approved standard business sponsor and wishes to nominate Kevin for a position in its workplace. ABC Pty Ltd provides a copy of Kevin’s employment contract, which indicates that Kevin’s base salary is AUD 49 900. In addition, Kevin will be paid LAFHA of AUD 6 000. ABC Pty Ltd also provides pay slips for other Australian employees in its workplace who are performing equivalent work to demonstrate that AUD 55 900 is the appropriate and applicable ‘market salary rate’ for that workplace in that location and that they are also receiving the LAFHA of AUD 6 000.

Although Kevin’s base rate of pay is below the TSMIT, his guaranteed earnings of AUD 55 900 (AUD 49 900 + AUD 6 000) are above the TSMIT. As all the other nomination criteria have been met, the processing officer approves the nomination on the basis that it is reasonable to take into account the LAFHA. It is important to again note, however, that officers should consider only the gross amount of LAFHA, not its imputed tax benefit.

 

LAFHA = living away from home allowance

What is missing is what about guaranteed overtime or penalties. One could easily envisage a situation where giving someone a guaranteed extra shift a week would satisfy this criterion

 

Market Salary Rate

The Temporary Skilled Migration Income Threshold (TSMIT) is now $53,900 ((see IMMI 13/028 dated 28 June 2013 with effect from 1 July 2013), up from 51,400[8].  However, the days are long gone when an employer could just pay an employee a few dollars about the TSMIT.

The regulations now require that the market rate be paid either determined by other employees working in the same workplace doing the same work or by standards set by the market.  In the latter a Legislative Instrument (IMMI 09/113 dated 10 September 2009) sets the standards:

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 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 expression applies is 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.

 

Sources like Hayes and Seek.com.au will yield useful comparisons of rates of pay.

Some allowance is always given for experience (or lack thereof), lack of knowledge of the Australian market etc so there is some leeway to pay an overseas worker a little less if justified.

Industrial awards are not regarded as an accurate guide for pay as awards no longer represent the market.  Enterprise agreements however are evidence of the market.

Broadly the PAM states:

In determining the applicable equivalent terms and conditions of employment or the ‘market salary rate’, officers should first consider:

  • Is there an equivalent Australian worker undertaking the same work in the sponsor’s workplace, or is there an industrial instrument with provisions for the nominated position already in operation in the sponsor’s workplace.
  • Is the equivalent Australian worker’s terms and conditions of employment set in a collective agreement (enterprise agreement under the Fair Work Act).
  • Is the equivalent Australian worker’s terms and conditions of employment set directly by another industrial instrument under the Fair Work Act, for example, transitional instrument, modern award.
  • Is the equivalent Australian worker’s terms and conditions of employment underpinned by a safety net contractual entitlement and set in a common law contract (including over-award rate).
  • If there is no equivalent Australian worker undertaking the same work in the sponsor’s workplace and there is no industrial instrument with provisions for the nominated position already in operation in the sponsor’s workplace, has the sponsor provided evidence of an appropriate rate of pay.
  • Is the base rate of pay component of the ‘market salary rate’ (namely the Australian worker’s base rate of pay) above the TSMIT? If not, are the guaranteed earnings of the nominated person equal to or greater than the TSMIT (and is it reasonable to include the claimed earnings other than the base rate of pay).

The onus is on the sponsor to include sufficient information in the nomination application to demonstrate the nominated person will be subject to terms and conditions of employment which are no less favourable than the relevant ‘market salary rate’. Officers are not required to undertake detailed analyses of enterprise agreements or industrial instruments in order to assess the ‘market salary rates’ however officers should ensure that comparisons are made on equal terms in relation to the hours worked. For example, if the market salary rate is based on a 40 hour week, then the nominee’s proposed salary should be for a 40 hour week, if the market salary rate is based on a 35 hour week, then the nominee’s proposed salary should be for a 35 hour week etc.

The nomination application form requires the sponsor to provide reference to and evidence of, how the terms and conditions of employment that will apply to the nominated person are at least as favourable as those that apply to Australian employees at that location, including the name/reference of a relevant industrial instrument.

There is no need to do a market rate assessment if the person earns more than $180,000 per annum – see Reg2.70 (10AB) and the Legislative Instrument IMMI 12/047 dated 12 June 2012 with effect from 1 July 2012.

There is some ability to pay less than the TSMIT provided the total remuneration is above the TSMIT – see Reg2.70 (10A).  The PAM states:

24.9 Base rate of pay below TSMIT but guaranteed earnings are equal to or greater than TSMIT

Regulation 2.72(10A) provides an exception to the requirement prescribed by regulation 2.72(10)(cc). That is, even if the base rate of pay under the ‘market salary rate’ is below the TSMIT, the nomination criteria relating to payment of equivalent terms and conditions of employment may nevertheless still be satisfied if the guaranteed earnings for the nominated person will be equal to or greater than the TSMIT, provided it is reasonable to disregard the fact that the base rate of pay is below the TSMIT.

In determining whether regulation 2.72(10A) should be applied to enable the nomination criteria relating to payment of equivalent terms and conditions of employment to be satisfied where the base rate of pay under the ‘market salary rate’ is below the TSMIT but the guaranteed earnings are equal to or greater than the TSMIT, officers should first consider whether the claimed additional amounts are earnings.

‘Earnings’ is defined in regulation 2.57A as including certain things (regulation 2.57A(1) refers) and excluding certain other things (regulation 2.57A(2)refers):

In relation to regulation 2.57A(1) it is important to note that:

  • regulation 2.57A(1)(b) allows for salary packaging and
  • the value of the non-monetary benefits must be agreed under regulation 2.57A(1)(c) – officers should sight evidence of such agreement.

In relation to regulation 2.57(2) it is important to note that regulation 2.57A(1)(a) excludes contingent payments, such as overtime, bonuses and commissions.

If the officer is satisfied that the guaranteed earnings are above the TSMIT, the officer should then consider whether it is reasonable to take account of the additional earnings in the circumstances. This assessment goes to the nature, rather than quantum, of the earnings.

Given the purpose of the TSMIT is to maximise the likelihood that the visa holder can independently provide for themselves in Australia, it may not be reasonable to consider additional earnings to the extent to which those earnings are not directed toward the cost of living expenses.

Conversely, it may be reasonable to take into account additional earnings where the income of the person is greater than it would otherwise be if their remuneration was structured in such a way that the base rate of pay was greater than the TSMIT. This could include, for example, the payment of living away from home allowance (LAFHA) to compensate the nominated person for additional expenses incurred as part of undertaking the employment. Where LAFHA is included as part of the guaranteed earnings, officers should consider it only in terms of the gross dollar amount rather than its imputed tax benefit.

Certification by Nominator – Reg 2.72(10)(e)

Sponsors are now required to certify that the position is corresponds with the nominated ANZSCO occupation; the position is with the business or an associated entity of the business; and the qualifications and experience of the visa holder is commensurate with the qualifications and experienced specified in the nominated ANZSCO occupation.

(e) … the person has certified as part of the nomination, in writing, that:

(i) the tasks of the position include a significant majority of the tasks of:

(A) the nominated occupation listed in the ANZSCO; or

(B) the nominated occupation specified in an instrument in writing for paragraph (aa); and

(ii)…..

; 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 sub-subparagraph; and

[NB. Reg 2.72(10)(e)(iii) requires the position to be in the sponsor’s business or the business of an associated entity of the sponsor. On-hire or labour-hire arrangements are not permitted under the SBS framework and the sponsor would need to be party to an On-Hire Labour Agreement in order to place a 457 visa holder with an unrelated entity.]

(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 ANZSCO; or

(B) if there is no ANZSCO code for the nominated occupation — for the occupation in the instrument in writing made for paragraph (aa).

 

Genuine Position – Reg 2.72(10)(f)

  • the position associated with the nominated occupation is genuine; and

It is now not uncommon for the Department to issue requests for further information regarding the genuineness of a nominated position.

PAM states:

To avoid doubt, the requirement is not that the position itself must be genuine, rather it is that the position associated with the nominated occupationmust be genuine. For example, a fundraising business may have a genuine position for a person to dress in an animal costume and shake a fundraising tin seeking donations, however that position would not be a genuine position in the occupation of Marketing Specialist (ANZSCO 225113).

 

Indicators that might prompt further enquiry

There are three key situations where the position associated with the nominated occupation may not be genuine:

  • the position has been created to secure a migration outcome for the nominee and / or any of their family members
  • the tasks of the position do not align with the tasks of the nominated occupation as described in the ANZSCO
  • the position is not consistent with the nature of the business.
  • Other indicators that might prompt further enquiry include:
  • the position does not fit broadly within the scope of the activities and scale of the business
  • the sponsor is an overseas business and the sponsor seeks to employ the visa holder with an associated entity in Australia
  • the sponsor is an overseas business that has been approved to establish a branch of the business in Australia and the positions nominated are not such that the nominee would be assisting in establishing the Australian business or be responsible for a substantial part of the operations of the business in Australia.

In assessing whether the position associated with the nominated occupation is genuine, an officer may consider factors such as the skill level of the duties, whether the position existed in the business prior to lodgment of the nomination, and whether the duties of the position are consistent with the nature of the business.

PAM also states that a position is not genuine if it was ‘created to secure a migration outcome’. This has significant implications for self-sponsorship, where is a self-sponsored client manages to obtain SBS approval, they are still likely to encounter issues regarding the genuineness of the position at nomination stage, as outlined below:

 

Position created to secure a migration outcome

Overview

The intent of the 457 program is to enable Australian businesses to temporarily fill short term skill shortages with overseas workers when they cannot find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. The program is not intended to be used for non-citizens to establish a business in Australia and self-sponsor themselves; there are other visa pathways available for such purposes.

[The writer points out that the above policy is a significant departure from the previous approach by the Department. In fact, historically the 457 visa was intended for use by non-citizens to establish a business in Australia under the old Independent Executive provisions.]

Assessing

In assessing whether the position associated with the nominated occupation is genuine, consideration should be given as to whether the position has been created to facilitate the entry to, or stay in Australia, of the nominee or any of their family members.

Six examples of factors that may indicate that the position has been created to facilitate the entry or stay of the nominee as the primary objective of the application are:

  • the nominee is a relative or personal associate of an officer of the sponsoring business
  • the nominee is a director or owner of the sponsoring business
  • the nominee is currently in Australia as the holder of a417 visa
  • the salary level is inconsistent with other workers in the occupation (for example, if the nominated salary is significantly lower than industry standards for the nominated occupation)
  • the business has indicated on the application form that they have received a payment from the nominee for lodging the nomination
  • the nominee has indicated on their visa application form that they have made a payment (or entered into an arrangement to make a payment) to the proposed employer for nominating them.

Officers should check departmental records for details of the sponsorship application and ascertain whether there is a direct or indirect relationship between the nominee and any owner / officer of the sponsoring business. If the business is a company and an ASIC historical extract has not been provided the business should be requested to provide one if necessary to ascertain whether the nominee is an owner or director or shareholder.

The size of the business, length of operation and the number of Australian employees should also be taken into consideration when determining whether the position associated with the nominated occupation is genuine.

Nominations lodged by overseas businesses who have been approved to establish a branch of their business in Australia should be scrutinised to ensure that the nominee is not self-sponsoring and the 457 program is not being used to circumvent the requirements of, or undermine any other visa program such as the Business Innovation and Investment visa.

The above Departmental policy does not mean that all self-sponsorship applications will fail in the first instance. However migration agents will need to provide a strong business case and, as mentioned in an earlier part of this paper, should ideally employ some Australian workers.

It is also pointed out that a nomination refusal of a self-sponsorship application could be appealed to the AAT and strong submissions may be made, particularly if the client has used the time to build and establish the business (including employment of Australian workers).

English Proficiency – Reg 2.72(10)(g)

The Government has closed the loophole, where individuals used to obtain a 457 visa based on the high salary exemption and later a new nomination was submitted to lower the 457 visa holder’s salary to below the exemption.

Now, if a new nomination is lodged for an existing 457 visa holder, then the Department will assess the person’s English language proficiency if the high salary exemption set out in subclause 457.223(6) was relied on for the grant of the 457 visa.

  • if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
  • the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
  • if:
    • the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
    • in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

  • the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
  • unless subparagraph (ii) applies—the holder:
    • has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
    • achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

 

Employment Contract – Reg 2.72(10)(h)

Under Reg 2.72(10)(h), the employment contract between the sponsor and the potential 457 visa holder must be provided to the Department.

As a practice point, the Department is carefully checking to confirm that the employment contract has been countersigned by both the prospective 457 employee and a representative of the sponsor.

  • either:
  • the person will:
    • engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457 (Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
    • give a copy of that contract to the Minister; or
  • the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub‑subparagraph (e)(iii)(B).

 

How long is a nomination valid for?

Reg 2.75 states:

(2) An approval of a nomination ceases on the earliest of:

(a) the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and

(b) 12 months after the day on which the nomination is approved; and

(c) the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Business (Long Stay)) visa; and

(d) if the approval of the nomination is given to a standard business sponsor — 3 months after the day on which the person’s approval as a standard business sponsor ceases; and

(e) if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under subsection 140M(1) of the Act — the day on which the person’s approval as a standard business sponsor is cancelled;

This has some relevance for MRT appeals in the sense that if a nomination expires then one simply re-applies for a nomination.

Barbara DavidsonNomination