The genuine need requirement is integral to any employer sponsor visa; Temporary Skill Shortage (TSS) visa (subclass 482), Employer Nomination Scheme (ENS) visa (subclass 186) and Regional Sponsored Migration Scheme (RSMS) visa (subclass 187) nomination application. With the TSS and ENS application, the genuine need requirement is demonstrated directly to the Department of Home Affairs (DOHA). With the RSMS application, genuine need needs to be demonstrated to the appropriate Regional Certifying Body (RCB).
Read: Temporary Skill Shortage (TSS) visa (subclass 482)
Read: TSS – Genuine position
Read: Employer Nomination Scheme (ENS) visa (subclass 186)
Read: Regional Sponsored Migration Scheme (RSMS) visa (subclass 187)
The sponsor must have a genuine need to employ the person to work in the position under their direct control.
In a direct employer/employee relationship, the employer:
- Has the right to legally appoint a person to a position
- Pays the employee’s salary and any statutory benefits, such as annual and sick leave, as required for ongoing employment under workplace relations legislation and awards
- Pays payroll tax, compulsory superannuation, fringe benefits tax, and deductions for PAYG tax
- Must have a workers compensation policy that covers the employee
- Has the right to legally dismiss or suspend the employee
- Determines who does the work, as well as when, how and where the work is done (this is commonly referred to as the control test)
- Provides the employee with any tools and training they need to perform the position duties
- Is generally liable for the actions and behaviour of employees in relation to their employment, and
- Has responsibility for workplace health and safety issues. Generally, all State/Territory workplace health and safety legislation requires the employer to:
- Provide and maintain a safe workplace and working environment and
- Provide and maintain safe plant/machinery and
- Provide safe work systems (this relates to procedures and policies relating to work practices) and
- Ensure the safe use, handling, storage and transport of substances and
- Provide information, instruction, training and supervision necessary for the employee to perform their duties safely
Genuine need for a skilled position
The DOHA will want to see that there is truly a vacancy for the nominated position and will consider all the information that has been provided in the online application form and supporting documentation, including that which is in relation to the nature of the business and the employment structure/employment
The information should identify and justify a continued and genuine need for the sponsor to employ the applicant in the nominated position. Possible reasons may include:
- The nature and scope of the business activities such as:
- Increases in business activity
- Plans for future expansion
- Impact on the business if the application was refused
- Current employeers in the nominated occupation having to do overtime
- If the position continues to fit within the regular and ongoing business activities (evidence may include an organisation chart or otherwise)
- The position continues to be needed in regular and ongoing business activities
- The position contributes to maintaining or enhancing the volume and/or quality of business outputs (evidence may include detailed and quantifiable plans for future expansion)
- The position has been in existance, was previously occupied, but has become vacant
- The position is relevant to new proposed business activities
Evidence against the position being one that has a continued and genuine need include and is not limited to:
- The sponsoring business’s industry is not doing well
- The position has changed over time and involves new tasks that no longer correspond to the nominated occupation
- Retrenchment in the previous 12 months of other employees, including Australian workers, in the nominated occupation or similar occupations
- Reduction of hours worked during the previous 12 months for other employees, including Australian workers, in the nominated occupation or similar occupations
- Reduction in pay and conditions within the previous 12 months for other employees, including Australian workers, in the nominated occupation or similar occupations
- Employment of a temporary visa holder on conditions less favourable than those for Australian employee
- Recruitment of temporary visa holders beyond the ordinary scope of the operation of the business.
Direct entry stream ENS/RSMS visas
If the sponsor claims that the position is required due to a need to diversify the business and the position does not appear to currently fit within the regular and ongoing business activity of the employer, the DOHA is likely to investigate.
An example is where a restaurant that has a cook, kitchen hand and part-time wait staff nominating a business development manager.
This may be because the sponsor wishes to start up or purchase a number of restaurants. In this situation, the business has must demonstrate that it has true intentions to do so and has the financial capacity to support such business expansion. Evidence that could be provided to support this include and is not limited to:
- Evidence of appropriate market research
- Business plans detailing proposed expansion and timelines
- Financial budgets covering expenditure and anticipated revenue
- Evidence of availability of funding (such as own funds or bank loans)
Another example would be a business that is currently involved in running a grocery business nominating a hairdresser on the basis that they intend to diversify their business operations. Evidence will need to be provided that show that the sponsor has the capacity and intention to diversify their business activity and may include:
- Business plans including financial budgets covering expenses and anticipated revenue
- Availability of business premises (evidence of lease or purchase of proposed location)
- Evidence of lease or purchase of equipment (such as barber’s chairs)
- Evidence of availability of funding (such as own funds or bank loans)
Are you considering making an employer sponsored visa application? Are you up to date on all the recent changes? We are a professional and highly experienced team of migration specialists. Call us at +61 2 8054 2537 or book a consultation to discuss your specific needs and circumstances on the link in the navigation bar above.
