The shock announcements regarding the overhaul of employer sponsored visas, in particular, the 457 visa, has left everyone playing catch up, including the Department of Immigration and Border Protection (DIBP) themselves. Information and interim measures have been released slowly through the year, and will continue to trickle through for some time. So here we are again, with the latest updates.
Understanding caveats
Occupations with caveats will have additional requirements that must be met for the position/applicant to be eligible. Caveats affect those will be applying for the Temporary Work (Skilled) 457 the Employer Nomination Scheme (ENS) 186 visas.
Caveats came into effect 1 July 2017. For 457 visa applications lodged on or after 1 July, as well as applications that were lodged before, but were not finalised by 1 July are also affected by the changes. ENS 186 visa applications after only affected if the application was lodged on or after that date. Applications lodged before 1 July 2017 are not affected.
Read: A Detailed Guide to Caveats
There are 3 types of caveats – work experience, regional and occupation specific. Under occupation specific, there are variety of additional requirements, such as minimum nominated base salary, minimum annual turnover, minimum number of employees, and so forth.
Does my occupation have a caveat? “Inapplicability conditions”
First, look for your occupation under the relevant occupation list. If the rightmost column for your occupation has a number in it, there is a caveat attached.
Find: Legislative instrument – 457 occupation list with caveats
Find: Legislative instrument – 186 occupation list with caveats
The rightmost column, or column 4, is labelled to contain “inapplicability conditions”. Inapplicability conditions are the same as caveats. See section 8 in the relevant legislative instrument for what your occupation’s caveats are. Our articles (linked above) also list caveated occupations.
Caveat exceptions
There are no exceptions to the caveats unless an international trade obligation applies (next section). However some caveats are less easy to interpret, such as those applying to chef/cook/restaurant manager or baker/pastrycook positions. The caveats for the baker/pastrycook positions are expanded on further in the article.
Read: Caveats for Chefs, Cooks, and Cafe and Restaurant Managers
Be aware that if your occupation has the 2 years relevant work experience caveat, but more work experience is required under the ANZSCO definition for that occupation, then the higher work experience requirement applies.
Caveats relating to international trade obligations
Where the nominated position involves an intra corporate transfer (ICT) to which an international trade obligation (ITO), that position is exempt from other caveats for that occupation. This includes the following occupations:
- Chief Executive or Managing Director (ANZSCO 111111)
- Corporate General Manager (ANZSCO 111211)
- Corporate Services Manager (ANZSCO 132111)
- Sales and Marketing Manager (ANZSCO 131112)
- Supply and Distribution Manager (ANZSCO 133611)
An intra corporate transferee in this context is referring to an individual who is currently working for an overseas business, who is being transferred to work for the same business or their associated entity in Australia.
ITOs apply to overseas businesses that operate in a World Trade Organisation (WTO) country
Turnover and employee number caveats
Where annual turnover or number of employees caveats apply, slight flexibility is given if all of the following are met:
- An overseas business starting business in Australia
- Business sponsor is unable to meet turnover and/or employee caveats but can meet other caveats that apply for the nominated position such as base salary
- Overseas (parent company) meets turnover/employee caveats
- Sponsor can demonstrate special circumstances
Special circumstances may include:
- Project of particular importance to Australia
- Economic benefit to Australia
- Supports innovation agenda
- Parent company has a long history of successful business operations
- Support from state/territory/government
Caveats for Bakers [351111] and Pastry Cooks [351112]
In the legislative instrument, the condition is that the position cannot be ” involved in mass production in a factory setting”. This has been clarified – the caveat for these occupations excludes positions that are involved in mass or standard production. Eligible baker and pastry cook positions are those that are in specialist production.
As such positions that are based in a franchise or factory, involves full or partial production of food product for distribution or predominantly uses pre prepared food products from other locations does not immediate disqualify the position for the 457 or ENS visa, so long as they can demonstrate that the position is not involved in mass or standard production.
Indicators of mass or standardised production may include:
- Position is based in a franchise or factory
- Products are prepared in large quantities
- Premixed ingredients are used to prepare products
- Significant use of machinery is made to prepare products
- Assembly lines are in place as part of production
- Position involves in repetitive tasks
- A limited range of products is available
- Products are delivered, frozen and/or pre-packaged, with preparation on site being limited to thawing, heating and/or basic cooking
- Minimal or no highly skilled staff – with short training programs for staff to bake standardised products
It may seem contradictory, however there may exist positions in franchise or factory settings that are of specialist production and would require the nominee to prepare and products from scratch, as opposed to following standardised steps to achieve a standard product, which does not meet the skill level required for the occupation. The intention is to weed out lower skilled positions such as Kitchenhands [851311], that are not on the 457 or ENS occupation lists.
Indicators of specialist production may include:
- The position is based in a specialist setting
- How the business is marketed to the public
- Comprehensive range of products is available in retail quantities sold directly to consumers
- Focus on organic, specialty, artisan or high end products
- Baked products are handmade and made from scratch
- Presence of a number of highly skilled and qualified bakery/pastry staff, with specific skill requirements for the position and significant work experience required
- Where a wholesale element exists, products are distributed to leading cafes, restaurants or speciality food stores, as opposed to supermarkets
Because of the many forms a business can take, the indicators listed above are possible supporting evidence as to if the position is specialist or not. When providing evidence, it would be helpful to focus on the required skill level of the nominated position, and show it meets that of the ANZSCO definition for [3511] Bakers and Pastrycooks:
- Checking the cleanliness of equipment and operation of premises before production runs to ensure compliance with occupational health and safety regulations
- Checking the quality of raw materials and weighing ingredients
- Kneading, maturing, cutting, moulding, mixing and shaping dough and pastry goods
- Preparing pastry fillings
- Monitoring oven temperatures and product appearance to determine baking times
- Coordinating the forming, loading, baking, unloading, de-panning and cooling of batches of bread, rolls and pastry products
- Glazing buns and pastries, and decorating cakes with cream and icing
- Operating machines which roll and mould dough and cut biscuits
- Emptying, cleaning and greasing baking trays, tins and other cooking equipment
Caveats for Accountants [221111]
When nominating an accountant position, the caveats require that the position:
- Cannot be a clerical, bookkeeper or accounting clerk position
- Must be in a business that has an annual turnover of at least AUD$1,000,000
- Must be in a business that has more than 5 employees
Whilst the position may involve some ad hoc tasks that are clerical or bookkeeping in nature, these must make up the minority of the role. According to ANZSCO, the accountant position should require a skill and knowledge level consistent to the following:
- Assisting in formulating budgetary and accounting policies
- Preparing financial statements for presentation to boards of directors, management, Shareholders, and governing and statutory bodies
- Conducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation
- Examining operating costs and organisations’ income and expenditure
- Providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements
- Providing financial and taxation advice on business structures, plans and operations
- Preparing taxation returns for individuals and organisations
- Liaising with financial institutions and brokers to establish funds management arrangements
- Introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems
- Maintaining internal control systems
- May appraise cash flow and financial risk of capital investment projects
The position is to be one that requires the nominee to be involved in tasks that are planning and providing accounting systems and services relating to the financial dealings of organisations and individuals, and advising on associated record keeping and compliance requirements.
Caveats for Customer Service Manager [149212]
When nominating a customer service manager position, the caveats require that the position:
- Cannot be based in a front line retail setting *
- Cannot predominantly involve direct client transactional interaction on a regular basis **
- Must have a nominated base salary of at least $65,000
- Must be in a business that has an annual turnover of at least AUD$1,000,000
* Front line retail setting: A location where the sponsoring business sells goods directly to the public – that is, to individual customers. This could include a shop, store, market stall or a counter.
** Direct client transactional interaction: Regular contact with individual clients either in person, online or over the phone to sell or promote products
Whilst the position may require that the nominee is sometimes will be involve in front line settings and other administrative and operational duties,, these must make up the minority of the role. According to ANZSCO, the customer service manager position should require a skill and knowledge level consistent to the following:
- Developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided
- Ensuring operational efficiency within a call centre
- Providing direction and feedback to team members and assisting with recruitment
- Managing, motivating and developing staff providing customer services
- Planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
- Liaising with other organisational units, service agents and customers to identify and respond to customer expectations
- May work in a call centre
As this is a managerial role, it is expected that the sponsoring company is one that has relatively large business operations with more complex client interactions. The customer service manager should in involved in client interaction on a level that will affect long term strategic marketing strategies.
If a company is setting up stores in Australia for the first time and wants a manager who is experience in their brand to lead the store, they should consider nominating the position of Specialist Manager.
Caveats for Marketing Specialist [225113]
When nominating a marketing specialist position, the caveats require that the position:
- Cannot be based in a front line retail setting*
- Cannot predominantly involve direct client transactional interaction on a regular basis**
- Must have a nominated base salary of at least $65,000
- Must be in a business that has an annual turnover of at least AUD$1,000,000
Whilst the position may require that the nominee is sometimes will be involve in front line settings and other administrative and operational duties, these must make up the minority of the role. According to ANZSCO, the customer service manager position should require a skill and knowledge level consistent to the following:
- planning, developing and organising advertising policies and campaigns to support sales objectives
- advising executives and clients on advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services
- coordinating production of advertising campaigns involving specialised activities, such as artwork, copywriting, media scripting, television and film production and media placement, within time and budget constraints
- analysing data regarding consumer patterns and preferences
- interpreting and predicting current and future consumer trends
- researching potential demand and market characteristics for new goods and services and collecting and analysing data and other statistical information
- supporting business growth and development through the preparation and execution of marketing objectives, policies and programs
- commissioning and undertaking market research to identify market opportunities for new and existing goods and services
- advising on all elements of marketing such as product mix, pricing, advertising and sales promotion, selling, and distribution channels
This is a specialist role and the responsibilities involve making strategic contributions to the business’s marketing plans. It is also important to demonstrate that the company’s business operations require such a position.
