Employer Nomination 186 & 187

NOMINATIONS

Employers should engage the services of our experienced Migration Agent Perth before starting the ENS 186 or RSMS 187 nomination process.

Labour agreements and the nomination categories

Nominations made for positions that are subject to a labour agreement should be made under the Agreement stream of ENS or RSMS. Nominations under the Agreement stream may be considered only if the positions are subject to a labour agreement.

Positions that are subject to a labour agreement cannot be considered under the Temporary Residence Transitions stream of ENS or RSMS.  The 457 visa must have been granted under the standard business sponsor requirements 457 visa and were not subject to a labour agreement.

There may be limited circumstances in which a nomination that was otherwise subject to a labour agreement is made under the Direct Entry stream of ENS or RSMS. This may occur in circumstances where the labour agreement does not provide a pathway to permanent residence, and the visa applicant is able to meet the requirements of the Direct Entry stream in their own right. In these circumstances, the nomination is required to meet all requirements of the Direct Entry stream. Any concessions provided for in the labour agreement do not apply.

If your company is a party or wants to be a party to a labour agreement contact our Migration Agent Perth.

Common criteria

The business of the nominating employer must be actively and lawfully operating in Australia.

For an ENS nomination, the position may be located anywhere in Australia, and the nominating business may be located anywhere in Australia.

A RSMS nomination to be made in regard to a position located in regional Australia.  Regulation and the business operated by the nominator must be located in the same location. This regulation does not relate to where the nominee lives (subject to their being able to travel to the location of the work).  The tasks of the nominated position may be spread across more than one location across Australia.  The nominated position must require the nominee to be physically present in that location to perform the tasks of the nominated position.

Start-up businesses

For the purposes of the regulatory criterion requiring active operation, a start-up business is one that has been in active operation for a period less than 12 months.  A business would be considered to have commenced ‘active operation’ once the ABN and/or ACN comes into effect and the entire infrastructure necessary for the activities of the business is in place and the business has commenced providing services to

Established businesses

A business that has been actively operating for a period of more than 12 months should be able to provide appropriate financial documentation to support their claims of active operation.

The business should be able to submit:

  • either
    • a balance sheet (statement of position) for the most recently concluded fiscal year (with comparative figures for previous fiscal year), and profit and loss statement (statement of performance) for the most recently concluded fiscal year, with comparative figures for the previous fiscal year or
    • business tax returns for the most recently concluded fiscal year

and

  • if the fiscal period to which the financial statements or tax returns submitted relate ended more than 3 months before the nomination was lodged – a business activity statement (BAS) for each complete quarter between the end of the fiscal period and the date the nomination was lodged.

Under the Temporary Residence Transition and Direct Entry streams respectively, require that the visa applicant will be employed on a full-time basis in the nominated position for at least 2 years and that the terms and conditions of employment not preclude extension of the period of employment.

The nominator must provide a copy of the proposed employment contract to enable verification.  The employment contract must include:

  • the name of the nominee
  • the position title and duties
  • if employment is for a specific period – the period of employment
  • the salary and employment conditions, including access to statutory entitlements.

If the employment contract covers a specific period of 2 years, the 2 year period of employment will commence from:

  • the date of visa grant if the nominee is already working in the nominated position or
  • the date of commencement of employment in all other circumstances.

Delegates need to be satisfied that the nominator has sufficient financial capacity to comply with the requirement to provide the nominee with at least 2 years of full-time employment.

Nominations under the Temporary Residence Transition and Direct Entry streams respectively, require the terms and conditions applicable to the position to be no less favourable than the terms and conditions that are provided to or will be provided to an Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location.

The salary offered must be the market salary.  If the nominator employs Australian citizens or permanent residents in the occupation to which the nominated position relates, the salary offered to the Australian employees is the market salary.

If the nominator does not employ Australian citizens or permanent residents in the nominated occupation the market salary rate must be determined with regard to relevant market information:

  • any fair work instrument, State/Territory industrial instrument or transitional instrument that would apply to Australian citizens or Australian permanent residents in the same workplace at the same location.
  • information in relation to statutory minimum entitlements, fair work instruments, State/Territory industrial instruments and transitional instruments that apply to Australian citizens or Australian permanent residents in similar workplaces
  • local knowledge and evidence of appropriate terms and conditions of employment including information from:
    • employer associations and
    • unions
  • broader labour market data including:
    • the ABS Employee Earnings and Hours Survey
    • the Australian Government’s Job Outlook
    • remuneration surveys and
    • job vacancy advertisements.

Temporary Residence Transition stream

Under the Temporary Residence Transition stream, the nominee (identified in the nomination) must have been employed as a main applicant 457 visa holder with the nominating employer for a total of at least 2 years in the 3 year period immediately before the lodging of the nomination. A complete assessment as to whether this requirement is met is undertaken at the nomination stage and is not re-assessed at the visa application   The nominee and any dependent applicants must be provided by the nomination employer at the time of lodgement.

Genuine Need

The nominator has a genuine need to employ the person, as a paid employee, to work in the position under the nominator’s direct control. The nominating employer needs to demonstrate that the nominee performed in the occupation as described in the subclass 457 nomination and that there is a specified genuine need for that same person to remain employed in the nominated position as the holder of a permanent residence visa.

The nominator needs to identify an occupation in relation to the position that is listed in ANZSCO and falls within the same ANZSCO unit group as the occupation that the nominee was approved under carried out while holding the 457.

The nomination needs to identify a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control. This requirement specifies that the position which is the subject of the nomination must need filling by the paid employee who works in the nominated position under the direct control of the nominator.

The nominator must be, or have been, the standard business sponsor who last identified the holder of the 457 visa in an approved 457 nomination.

The 457 visa holder must have been employed in the position in relation to which they hold the 457 visa for a total period of at least 2 years (not including unpaid leave) in the 3 year period immediately before the lodging of the nomination. The position is linked to a particular role with a particular employer in a specified location.

The nominator has met the training requirement

This criteria applies to ENS and RSMS nominations lodged under the Temporary Residence Transition stream.

The nominator must have met the training requirements for the purpose of approval as a standard business sponsor under the 457 programme. They must demonstrate that they have continued to meet the training requirement throughout the validity of their sponsorship.

If the nominator’s standard business sponsorship approval has ceased, they will need to provide evidence they met the training requirements for each year in which they were approved to sponsor a 457 visa holder.

All standard business sponsors are required to demonstrate that over the term of their sponsorship they fulfilled either Training Benchmark A or Training Benchmark B in each year of the sponsorship approval that a 457 visa holder was sponsored by them. Each year of the sponsorship term will begin in the anniversary of the sponsorship approval.

If the sponsorship was approved on the basis of an auditable plan, the commitment identified in the plan must have been fulfilled and the sponsor must have met the training benchmark they committed to, throughout the validity of the sponsorship.

If a nominator cannot demonstrate that they maintained the relevant level of training expenditure throughout the validity of their standard business sponsorship they cannot satisfy the requirements of the Temporary Residence Transition stream. Where the nominator has not satisfied their training benchmarks, delegates may consider whether it is reasonable to disregard this requirement.

A business that has been operating for a period of at least 12 months is required to demonstrate:

  • for training benchmark A, recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business

or

  • for training benchmark B, recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

A business that has been operating for less than 12 months is required to provide an auditable plan to the equivalent of at least 2% or 1 % of the payroll of the business.

Commitment to maintain expenditure

As nominating businesses for the purpose of the ENS programme are not considered ‘sponsors,’ there is no requirement to provide a commitment to maintain the training expenditure for the duration of their nomination period.

Direct Entry stream nominations

Need for a paid employee

The nomination needs to identify a need for the nominator to employ an identified person, as a paid employee to work in the position under the direct control of the nominator. Effective 1 July 2017, the nomination has to specify the nominee in their application.

The nominated position must be under the direct control of the nominator and the nominator must directly operate the business in which the nominated position exists.

  •  For ENS there is a genuine need for the nominator to employ the person identified as a paid employee, to work in the position under the nominator’s direct control.
  • For ENS, the tasks to be performed in the nominated position must correspond to the tasks of an occupation specified in a legislative instrument current at the time the nomination is lodged.
  • For RSMS, there is a genuine need for the nominator to employ the person identified as a paid employee to work in the position under the nominator’s direct control.
  • For RSMS the tasks to be performed in the nominated position must correspond to the tasks of an occupation with an ANZSCO skill level 1 to 3.

There must be a direct employer/employee relationship between the employer and the nominee.

For RSMS any occupation with a skill level within ANZSCO skill levels 1 to 3 may be nominated.

(ENS Direct Entry stream) and (RSMS Direct Entry stream)

  • the nominated occupation is included on the Medium and Long term Strategic Skills List (MLTSSL)or the Short term Skilled Occupation List (STSOL), which lists occupations that can be approved in relation to permanent employer sponsored nominations under the ENS Direct Entry stream;
  • the nominated occupation is included in the legislative instrument in relation to permanent employer sponsored nominations under the RSMS Direct Entry stream.
  • delegates must be satisfied that the tasks of the nominated position effectively align with the tasks for that occupation as outlined in the Australian and New Zealand Standard Classification of Occupations (ANZSCO).

Important:

  • As of 19 April 2017, the legislative instrument referred to above contains two schedules, the MLTSSL, which replaced the former Skilled Occupation List (SOL), and the STSOL which replaced the Consolidated Sponsored Occupation List (CSOL).
  • Some occupations on the list are restricted to certain situations via a caveat
  • The list can change with occupations being removed or added. If the legislative instrument has changed since the application was made, officers should confirm that the nominated occupation is specified in the current legislative instrument. If the nominated occupation is not listed on the current legislative instrument at the time of making the decision, the nomination cannotbe approved.
  • The STSOL and MLTSSL will be updated every six months based on advice from the Department of Employment. Listed caveats will provide additional requirements or exclusions for a number of listed occupations.

Training Benchmarks

New requirements outlining the ‘training benchmarks’ came into effect on 1 July 2017.

Nominators are required to meet the Training benchmark A or Training benchmark B. Given that regulations prescribe different training thresholds based on how long the business has been actively operating, a question arises regarding start-up businesses and the ability to submit an auditable training plan.     Under policy, the applicant should be assessed against the training threshold that applies at the time of decision on the nomination. This is appropriate because the training requirement is a criterion to be satisfied for approval of the nomination, not a criterion for lodging the nomination.

Training benchmark A

Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to a specified type of training fund that operates in the same or a related industry as the business.

Expenditure must be made to one of the following types of funds to meet the requirements for this benchmark:

  • an industry training fund – that is, a statutory authority responsible for providing funding for training of eligible workers in certain industries;
  • a fund managed by a recognised industry bodywho provides training opportunities in their industry and quarantines contributions to the fund for training purposes only; or
  • a recognised scholarship fundoperated by an Australian university or TAFE college only.

Contributions to training funds operated by Registered Training Organisations (RTOs) or private individuals are not acceptable for the purposes of meeting Training Benchmark A, nor are funds that allocate a percentage of the contributions received to commissions or offer refunds for failed immigration applications.

Training benchmark B

To meet training benchmark B, the nominator must provide evidence of having made the following contributions:

Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business, who are Australian citizens or Autralian permanent residents (‘Australian workers’).

Regional Certifying Body

For RSMS nominations, a regional certifying body (RCB) must provide advice as to whether the nomination satisfies certain specific regulatory criteria.  The body providing the advice must be located in the same State/Territory in which the nominated position exists.

Some RCBs have established processes specific to their organisations, for managing requests for assessment in regard to RSMS nominations.

These processes may include the completion of specific paper-based or electronic applications. Nominators intending to lodge RSMS nominations under the Direct Entry stream must comply with specific requirements (if any), imposed by the relevant RCB in regard to making applications/requests for assessment.

In relation to each nomination, the relevant RCB will assess and provide advice as to:

  • whether there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control

and

  • whether or not the position can be filled by an Australian citizen or an Australian permanent resident who is living in the same local area where the nominated position exists

and

  • whether the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that are provided to, or would be provided to, an Australian citizen or Australian permanent resident for performing work in the person’s workplace at the same location.

Under policy, the RCB assessment must have been obtained no more than 3 months before the date the nomination is lodged. If the assessment is dated more than 3 months before the date the nomination is lodged, the delegate may require a fresh RCB assessment to be obtained.

Due to the complexity of these requirements we strongly recommend discussing your application with our Migration Agent Perth on +61 (0)8 9203 5194.