Your Full Guide to the Employer Nomination Scheme (ENS) visa (Subclass 186): Part III

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Your Full Guide to the Employer Nomination Scheme (ENS) visa (Subclass 186): Part III

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We have now covered the two main streams under the Employer Nomination Scheme (ENS) visa (subclass 186) in this three part series. In our last two articles which we have listed below, we have gone into detail on the different requirements that apply to those two streams, how those requirements are assessed, explained the exemptions that may apply and listed helpful articles to help you on your journey to understand the ENS 186 visa. 

  1. Temporary Residence Transition (TRT) stream ENS 186 visa requirements
  2. Direct Entry (DE) stream ENS 186 visa requirements
  3. Requirements for all ENS 186 visa applicants (you are here):
    1. Genuine need requirement
    2. Caveats
    3. Skilling Australians Fund (SAF)
    4. Annual Market Salary Rate (ASMR) 
    5. Adverse information

We shall now talk about all the other requirements associated to the ENS 186 visa that apply regardless of which stream you apply to. 

An introduction to the three streams 

We mentioned having covered the two main streams in previous articles in this series but there are actually three streams through which one might go about applying for the ENS 186 visa, that being the Temporary Residence Transition (TRT) stream, the Direct Entry (DE) stream or the Labour Agreement stream. 

The Labour Agreement stream is available only under very specific circumstances. Labour Agreements are special agreements that businesses may enter into if they exist in a certain location and are covered by a Designated Area Migration Agreement (DAMA). DAMAs allows these businesses to access certain concessions on the TSS 482 visa that are not usually available. As such, the Labour Agreement stream is not as accessible unless you fall under those specific circumstances and we will not be discussing the Labour Agreement stream in this write up.

Read: Labour Agreement TSS 482 Visa: Northern Territory – Visa Applicants

Read: Labour Agreement TSS 482 Visa: Northern Territory – Businesses

Read: South Australia DAMA: Requirements

To learn about the requirements that are specific to applying for a TRT stream ENS 186 visa, visit our last article linked below. Through that article you will also be linked to our in depth guide on the Temporary Skill Shortage (TSS) visa (subclass 482), which you will need to be on for a number of years before becoming eligible for the TRT stream ENS 186 visa.

Read: Your Full Guide to the Employer Nomination Scheme (ENS) visa (Subclass 186): Part I

To learn about the requirements for a DE stream ENS 186 visa, visit our last article linked below. In this article, you will get to understand more about how the Department of Home Affairs assesses your skill, which less so through the TRT stream, is integral to the DE stream ENS 186 visa.

Read: Your Full Guide to the Employer Nomination Scheme (ENS) visa (Subclass 186): Part II

Genuine need requirement

The genuine need requirement is a critical requirement a 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. 

Simply put, the sponsor must have a genuine need to employ the applicant to work in the position that is directly under the sponsor. 

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

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, will be used to assess if this requirement is met.

The DOHA should be able to identify through the information provided, a continued (not temporary) and genuine need for the sponsor to employ the applicant in the nominated position. Factors that could lead to this genuine need 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 employers 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 existence, 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.

TRT stream ENS 186 visa

The genuine need requirement is more closely looked at when the applicant is applying for a TSS 482 visa, however this will continue to be assessed when applying for the TRT stream ENS 186 visa.

DE stream ENS 186 visas

All the above apply. Let us go through an example of how the position needs to make sense and can be demonstrated through considering the factors listed above.

A 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 take a closer look.

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 must show that it has honest intentions as well as the financial capacity to do so. Evidence could 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)

Caveats

You will notice that some occupations are affected by caveats should an applicant be applying for a TSS 482 visa or ENS 186 visa. The caveats are there to ensure that the skills and skill level of the applicant is what is in need in the Australia labour market. Caveats often apply to these occupations because these occupations are generally broad and not very specialised. 

If a caveat affects your nominated occupation, it means that there are additional requirements that are need to be met. Limited situations allow some flexibility in terms of how a caveat is interpreted, and these are discussed below.

Types of caveats:

  • Work experience
  • Regional location
  • Turnover and employee number
  • Occupation Specific

We highly suggest that you use our complete occupation list to check what caveats apply to your occupation. 

Read: The AILS Complete Occupation List Guide

This handy occupation list compilation allows you to see, according to occupation, which visas are available to that occupation, the ANZSCO code, assessing authorities where applicable, caveats that apply and if a skills assessment is required for that occupation if you were to be applying for the Regional Skilled Migration Scheme (RSMS) visa (subclass 187).

Work experience

The position that your employer is nominating you to fill must be one that requires the applicant to have a minimum of 2 years of work experience in the same or similar occupation. Generally this would be satisfied if the job advertisements and descriptions list at least 2 years work experience as a requirement and/or the nominee possesses at least 2 years relevant work experience and there is no evidence that the position does not require at least 2 years of work experience.

Regional location

The position must exist in a regional location. This must be the applicant’s primary work location and not where a parent company may be based.

 

AREAPOSTCODES 
AUSTRALIAN CAPITAL TERRITORYEntire Territory
NEW SOUTH WALES

(Excluding Sydney Newcastle and Wollongong)

2250 to 2251 – (Central Coast)

2256 to 2263 – (Central Coast)

2311 to 2312

2328 to 2411

2415

2420 to 2490

2536 to 2551

2575 to 2594

2618 to 2739

2787 to 2898

NORFOLK ISLANDEntire Territory
NORTHERN TERRITORYEntire Territory
QUEENSLAND

(Excluding the greater Brisbane area and the Gold Coast)

4124 to 4125

4133

4211

4270 to 4272

4275

4280

4285

4287

4307 to 4499

4515

4517 to 4519

4522 to 4899

SOUTH AUSTRALIAEntire State
TASMANIAEntire State
VICTORIA

(Excluding Melbourne metropolitan Area)

3211 to 3334

3340 to 3424

3430 to 3649

3658 to 3749

3753

3756

3758

3762

3764

3778 to 3781

3783

3797

3799

3816 to 3909

3921 to 3925

3945 to 3974

3979

3981 to 3996

WESTERN AUSTRALIAEntire State

 

Turnover and employee number

When an annual turnover or employee number caveat applies to an occupation, the DOHA will consider the following factors:

  • There is an overseas business that is starting a business in Australia
  • The overseas “parent company” would meet the turnover/employee caveats
  • The business sponsor does not meet the turnover and/or employee caveats but meets any other caveats that apply such as salary conditions
  • The sponsor has demonstrated that there are special circumstances such as there being a project of particular importance to Australia, economic benefit to Australia, supports innovation agenda, they have support through state/territory/government, or the parent company has a long history of successful business operations

In such circumstances, the sponsor should write a detailed submission on their reasons for which they should still be considered to meet the caveat requirements

Occupation specific

This is a very long list! Occupation specific caveats are caveats that are, as the name suggests, specific to a particular occupation.

Read: Occupation specific caveats

Exemptions – 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

 Skilling Australian Fund (SAF)

The Skilling Australians Fund (SAF) legislation has been passed and is to come into effect on 12 August 2018. It is a foreign worker levy that is to be imposed on businesses who sponsors and has in their current employ, and overseas worker holding one of the following visas:

  • Temporary Skill Shortage (TSS) visa (subclass 482)
  • Employer Nomination Scheme (ENS) visa (subclass 186)
  • Regional Sponsored Migration Scheme (RSMS) visa (subclass 187)

Holders of the 457 visa who require a new nomination under the TSS 482 visa to change employer or occupation will also be implicated by the fee.

This fee must be paid at the time of nomination. It is a cost that cannot be transferred by the employer to the applicant.

The SAF is a training fund that will be administered by the Department of Education and Training for apprenticeships and traineeships in occupations that are in high demand and currently rely on skilled migration or have future growth potential, including in regional Australia.

 Small business (under AUD $10 million in annual turnover)

TSS: AUD $1,200 per year of the proposed visa period

RSMS/ENS: AUD $3,000 one off payment

 Other businesses (AUD $10 million and above in annual turnover)

TSS: AUD $1,800 per year of the proposed visa period

RSMS/ENS: AUD $5,000 one off payment

 Annual turnover

Annual turnover for Australian businesses is defined as the total ordinary income from the most recent income year ending before nomination day. For businesses outside of Australia, annual turnover is the total income in the most recent financial year (financial year may vary with country). Nomination day is taken to be the day the application is lodged.

 Exception

The only exception is the nomination is made under a labour agreement and the nomination is for the occupation of Minister of Religion or Religious Assistance.

 Refunds

Refunds are available under specific circumstances:

  • The nomination needs to be withdrawn for specific reasons and it is withdrawn before a decision on the application is made. Reasons include:
    • Information in the nomination being incorrect, such as the proposed visa period or is in relation to the businesses annual turnover, which would result in the nomination training contribution charge being incorrect
    • The standard business sponsorship application was withdrawn or refused
    • Information in the nomination relates to the wrong occupation or wrong stream for the Temporary Residence Transition (TRT) stream ENS 186 or RSMS 187 visa
  • The nomination is approved but the applicant is refused a visa on health or character grounds
  • The nomination is approved and the applicant is granted a visa but for reasons outside the employer’s control, the visa holder does not commence work in the position
  • The nomination is approved and the applicant is granted a visa but employment within in under 12 months. This refund is only available for temporary visas and the refund will be partial; less the first year of the levy.

 Underpayment

Underpayments of the nomination training contribution charge (contribution to SAF) must be resolved before another nomination by that employer can be approved.

Annual Market Salary Rate

The Annual Market Salary Rate requirement is there to protect both the applicant as well as Australian permanent residents and citizens. It ensures that the appropriately skilled nominees are paid a fair wage and minimise the undercutting of the local Australian local labour market.

  • ASMR has been determined according to DOHA standards
  • ASMR excluding non-monetary benefits at least meet the TSMIT
  • Nominees annual earnings meet or exceed the ASMR
  • Exemptions apply for roles for which the nominee’s annual earnings are at least AUD$250,000
  • Nominees Annual earnings, excluding non-monetary benefits at least meet the TSMIT

It is important to understand that the DOHA will be comparing what the nominee is proposed to be earning against what an equivalent Australian worker would. As such ASMR and annual earnings are not the same thing.

Equivalent Australian worker:

  • Australian permanent resident or citizen
  • Is employed in the same workplace as the nominee
  • Is employed in the same location as the nominee
  • Is performing equivalent work to the nominee

ASMR refers to the earnings of what an Australian makes, or would make, for performing equivalent work on a full time basis for a year in the same workplace at the same location

Annual earnings refer to the guaranteed earnings that the nominee would make in the nominated position

 ASMR appropriately determined

Where a fair work instrument, state industrial instrument or transitional instrument exists for an equivalent Australian worker, the ASMR is the annual earnings of the Australian worker in that instrument. The name of the agreement or award should be identified along with the salary level/occupation group that applies to the nominated occupation.

Where no fair work instrument, state industrial instrument or transitional instrument exists but there is an equivalent Australian worker, the ASMR must be determined based on relevant employment documents. This includes employment contracts and pay slips for other Australian workers performing equivalent work in the workplace.

Where no fair work instrument, state industrial instrument or transitional instrument exists and there is no equivalent Australian worker, an explanation of how the ASMR has been determined must be provided. It should be supported with the following documental evidence such as:

  • Job Outlook information (www.joboutlook.gov.au)
  • Advertisements from the last six months for equivalent positions in the same location
  • Remuneration surveys completed by a reputable organisation
  • Written advice from registered unions or employer associations.

If the market salary rate determined is a range, the sponsor must explain and provide specific details regarding why the particular AMSR has been selected.

The DOHA will pay closer attention to applications where:

  • The nominee’s annual earnings are AUD$65,000 or less
  • The nominee’s salary package contains significant non-monetary benefits
  • The market salary evidence presented reflects a wide range of salary data and/or inconsistent information

 Monetary benefits for the equivalent Australian worker must must meet or exceed TSMIT

ASMR excluding non-monetary benefits should meet or exceed the TSMIT, which is currently at AUD$53,900.

Non-monetary benefits include items that the sponsor may provide the nominee such as accommodation, clothing, meal, travel allowance and so forth. These cannot be included when calculating the ASMR.

 The nominee’s annual earnings must meet or exceed the ASMR

There are no conditions under which this requirement can be waived. In the event that a nominee’s proposed annual earnings fall under the ASMR, the nomination application will be refused.

 Monetary benefits for the nominee must must meet or exceed TSMIT

It follows that if the ASMR meets or exceeds the TSMIT and the nominee’s annual earnings meet or exceed the ASMR, this condition will be met. Non-monetary benefits cannot be including in the calculation of the nominee’s annual earnings.

 ASMR determination is inconsistent with labour market conditions

Situations that may cause the DOHA concern include but are not limited to:

  • There being no equivalent worker and the advertising provided to demonstrate the AMSR lacks any details regarding the advertised position, appears to be for a significantly different position and/or a position offered on significantly less favourable employment terms and conditions, and/or there are concerns about the job advertisements provided being fabricated
  • The AMSR determined, is significantly lower than what would be expected based on available information from reputable sources (e.g. joboutlook)

This is assessed on a case by case basis and the DOHA will examine the application and circumstances in full to decide if it is reasonable to disregard these potential causes for concern.

 Less favourable employment conditions

It is also important that other employment conditions are no less favourable for the nominee than it would be for an equivalent Australian worker. This is generally taken to be satisfied as all Australian employers are required to comply with all relevant workplace laws. Sponsors are also required in their contracts to guarantee that they are employing the nominee in conditions that are consistent with workplace laws.

However if information is available to the contrary, such as information concerning annual paid leave, salary deductions or other adverse information relating to employment conditions, the DOHA will engage in further investigations.

Adverse information

  • A person has contravened a law of the Commonwealth, State or Territory
  • A person is under investigation, subject to disciplinary action or subject to legal proceedings
  • A person has been a subject of administrative action
  • A person has become insolvent
  • A person has provided bogus documentation or information that is false or misleading in a material particular
  • Other adverse information

Contravened a law of the Commonwealth, State or Territory

This refers to a record of offences or a contravention of a Commonwealth, State or Territory law related to one or more of the matters referred to below:

  • Immigration
  • Discrimination
  • Industrial relations
  • Occupational health and safety
  • People smuggling and related offences
  • Slavery, sexual servitude and deceptive recruiting
  • Child abuse
  • Taxation
  • Terrorism
  • Trafficking in persons and debt bondage

Under investigation, subject to disciplinary action or subject to legal proceedings

If the applicant is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such law, this is would be considered as adverse information, even if they have not been charged. In such a case the DOHA will either send a natural justice letter, inviting the applicant to comment on the adverse information, or will delay processing the visa .

Subject of administrative action

A person has been the subject of administrative action if the Australian Border Force (ABF) has:

  • Barred or cancelled the sponsor due to breaches of their sponsorship obligations in the past,
  • Issued the sponsor with a formal warning for breaching their sponsorship obligations, and/or
  • Issued the sponsors with an infringement notice for breaching sponsorship obligations, or in relation to migration and/or customs offences such as employing illegal workers or individuals in breach of their visa conditions and/or importation offences

It would also include information that the sponsor has:

  • Been issued with an Illegal Worker Warning Notice (IWWN),
  • Failed to comply with their obligations under the Australian Trusted Trader program, or
  • Been issued with an infringement notice by the Fair Work Ombudsman (FWO) for possible contraventions of the Fair Work Act 2009

Bogus documentation or information that is false or misleading

This is covered under PIC 4020 and may result in your being banned from further visa applications for 3 or 10 years.

Read: PIC 4020

Other adverse information

Such information could include but is not limited to:

  • The DOHA has received numerous, similar allegations against the employer in relation to migration fraud, including allegations regarding payment for visa activities which appear to be credible
  • There is adverse information in the public domain, including in the media, that brings into question the person’s suitability as an approved sponsor or nominator
  • The applicant is an employer and there is evidence suggesting that the organisation is in substantial financial difficulty and has outstanding debts that they are unable to pay

Associated with

Any association of the applicant with another person who is discovered to not meet the adverse information criteria will also affect the applicant. Two persons are associated with each other if:

  • They are or were spouses or de facto partners;
  • Are or were members of the same immediate, blended or extended family;
  • They have or had a family-like relationship;
  • They belong or belonged to the same social group, unincorporated association or other body of persons;
  • They have or had common friends or acquaintances;
  • One is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other, or any corporation or other body in which the other is or was involved (including as a director, an officer, employee or member);
  • A third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them;
  • They are or were related bodies corporate ;
  • One is or was able to exercise influence or control over the other; or
  • A third person is or was able to exercise influence or control over both of them

The definition of associated with, as you can see, is rather broad, being that a person or other entity having or being related, linked or connected to each other in some way equates to being associated. This relationship, link or connection may have been a past or current association. It could even include two organisations operating out of the same location.

Reasonable to disregard

As situations are not  always straightforward, the DOHA may choose to disrergard adverse information when it is not serious. What are some examples of when the DOHA may choose to disregard adverse information?

  • The applicant only received a ‘warning’ in relation to their conduct and there is no evidence that they have since been non-compliant
  • The applicant has been barred for a shorter period by the ABF (less than two years) and there is no evidence that they have since been non-compliant since the expiry of the bar
  • The applicant received a more serious penalty for previous action but has:
    • Taken steps to negate the implications of relevant conduct or practices
    • Developed practices and procedures to ensure the relevant conduct is not repeated
  • The applicant has an overall record of ‘good behaviour’ but is being investigated for less serious issues, following receipt of an unsubstantiated allegation
  • The persons to whom the adverse information relates have no influence over the conduct of the applicant’s partnership or association (for example, silent partner)

The DOHA will consider the following factors when deciding if it is reasonable to disregard any adverse information:

  • The nature and seriousness of the adverse information
  • Whether the adverse information was recent or a long time ago
  • How the adverse information arose, including the credibility of the source of the adverse information
  • Whether the allegations have been substantiated or not, such as whether the person is undergoing investigations or has been convicted
  • Whether the applicant has acknowledged the issues with their previous behaviour and can improve
  • Whether the applicant has provided evidence to demonstrate that they have rectified any issues where relevant (such as repaying monies to an underpaid employee) and taken steps to ensure the circumstances that led to the adverse information do not recur
  • Whether the applicant has demonstrated subsequent compliance
  • Whether the conduct of concern is likely to recur
  • Information about relevant findings made by a competent authority on the adverse information
  • Whether there are any compelling circumstances affecting the interests of Australia

Phew! That has been a lot of information. We hope this has been helpful but understand that it may still seem confusing. That is okay, the visa system is a very complicated one! Please reach out to us to help with your visa applications. Australian Immigration Law Services has serviced a great number of successful clients through all types and complications of employer sponsored visas. Contact us today to start your future in Australia. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.