In the 457 visa process there are three important steps, the business gains approval, the nomination is approved and then the applicant(s) are approved.
Today we will examine one of the key requirements of the 457 visa system, having the nomination approved for a particular occupation. We often find this is one of the first steps to consider. One of the first questions we ask potential applicants "what job are you going to be doing in this business?". We cover this first for there is no point discussing whether the business can get approval or not if the occupation is not sorted first.
In reality we find that most lawfully operating businesses in Australia gain a high chance of being approved by DIAC. The size and number of staff is not a defining factor in this process and even businesses with two staff can gain approval. Usually the main concern is what is the occupation the business wants to gain approval for and does the potential 457 applicant have the necessary education or work experience background to suit that occupation. We will focus on the education and work experience component of the applicant in our following edition next week.
Which Occupation to Choose?
Firstly the occupation being forward to DIAC for nomination approval cannot be invented just to suit the applicant. You would be surprised how many times we get asked, "My boss is happy to nominate any job so I can get the visa". Well that is nice of them but businesses have to nominate a position that is genuine, one where the applicant is obviously going to work in. an overall assessment of "genuineness" is something DIAC does in every 457 application. For example they will consider if there is a genuine need that occupation or has that occupation just been created for the applicant? We have covered this type of issue in Volume 231.
However quite often the potential applicant does not really know the exact title of the job they are being offered, they know the duties but titles can vary depending upon the business. When the title is not clear then you must consult the ANZSCO data base. Having a general idea of the profession the occupation the corresponding ANZSCO code can be narrowed down to one or two obvious choices.
In the nomination process the choice of occupations is restricted to the CSOL (Consolidated Skilled Occupation List). The CSOL contains many occupations on its Schedule 1 and Schedule 2 but certainly not all. For example Registered Nurse is on the list but sadly Nursing Aid is not. The content of the CSOL will change from time to time so you need to be sure you are choosing an occupation from the most recent list.
How much will you be paid?
Once an occupation is identified, the next question which normally follows is, "how much are you going to be paid for this job?"
This is where it becomes complicated due to DIAC's insistence on their unique Temporary Skilled Migration Income Threshold (TSMIT) and Market Salary Rate (MSR) rules. Often we find the TSMIT and the MSR are the major hurdles for young graduates to overcome in order to gain their 457 visa.
The introduction of the TSMIT was to ensure 457 visa holders are paid no less than the minimum threshold allowed which is currently set at $51,400. This figure normally increases at the beginning of each financial year. This amount can often be a little high for fresh graduates with little or no work experience.
Unfortunately one of the weaknesses of this scheme is that there is no mechanism whereby businesses which operate in rural areas can pay a sponsored employee less than the TSMIT.
What is the Market Salary Rate?
That is often a difficult question to answer and takes some research to explain to potential applicants. There are more variables in assessing the MSR than just a minimum income threshold. DIAC does a very poor job in trying to explain this clearly and here is an example of what we mean; To give you an example of what we mean, this following information is from DIAC's Procedural Advice Manual (PAM) on this subject;
"unless the annual earnings of the nominee are equal to or greater than the amount set out in the legislative instrument, the position in which the nominated occupation will be performed will provide terms and conditions of employment to 457 visa holders that are 'no less favourable' than the terms and conditions that are provided, or would be provided, to Australian citizens or permanent residents for performing equivalent work in the standard business sponsor's workplace at the same location (that is, will pay the market salary rate)".
When we first read this we had to laugh as in "you must be joking, who rights this stuff?" If any of our readers can interpret this on first glace then you must have obtained 10 on your IELTS Academic reading section.
In normal English this means that it is not enough to just meet the minimum wage, the 457 visa holder must receive a fair Market Rate Salary equal to local Australian workers doing the same job.
To start on this search for the MSR for your occupation, you can ask your employer whether your terms and conditions of employment are covered by an industrial instrument such as a modern award or enterprise agreement. If it is not, you need to check whether your award rate is higher than TSMIT.
If they don't use an industrial instrument, you need to first consult this Australian Government web site, Job Outlook. Take the following steps as a guide;
Find your occupation;
Click on the average weekly earnings;
Multiply this figure by 52 and there is your MSR starting point for this occupation.
What if the MSR is below the TSMIT?
If you find the annual salary is below the current TSMIT of $51,400 per annum then you have a problem. You will have to find other evidence to convince DIAC that the Job Outlook guide is not accurate and that in your occupation Australian workers or getting a higher salary.
To explain this here is an example;
Jim has an employer who wants to sponsor him as a Cook. He has been offered a salary of $55K. However on checking Job Outlook the average weekly earnings indicate an annual salary of $35,984. What can Jim do?
Are there other Cooks who are doing the same or similar work as Jim's at his work place? If so what are their salaries? If Jim can show there is at least one Australian Permanent Resident or Citizen being paid $55K, then this can be used an acceptable MSR.
If there is no other staff on the same salary then it is possible to obtain actual job advertisements in the same city or even proof that another cook at another business is getting paid $55K. This may be a little difficult but we have used employment contracts, particularly in franchise businesses to demonstrate the MSR.
A similar scenario applies to a Job Outlook figure which is unrealistically high. You would need to provide evidence of other Australian workers being paid above the TSMIT but less than the Job Outlook figure.
If you find the salary you are being paid/offered is above the TSMIT and above the Job Outlook figure, then you are fine, there is no need to look further.