Sunday the 13th of July 2014
Volume 322

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 TODAY we start a series of articles to discuss of what it actually means in the eye's of the DIBP, to be "employed".  


Meaning of Employment Part 1    headset-woman.jpg


One would imagine that the term "employed" is pretty straight forward in what it means. Not so.


The term is used in a number of regulations pertaining to visa applications in Australia and depending upon the application it has various legal and policy requirements.


What we cover today only is in relation to the Migration Regulations regarding Schedule 6D. This schedule governs the award of points for certain GSM visas such as the 189, 190 and 489 subclass. For the points system, "Employed" is defined in regulation 2.26AC(6) to mean 'engaged in an occupation for remuneration for at least 20 hours weekly'.


So why can't you be employed for just 15 hours a week? Well of course you can in the real world, but of course you must always keep in mind the DIBP doesn't always operate in our world, they exist in a parallel universe and pop in and out to visit us like the cast of Fringe.


What is Remuneration?


In some parts of this world you may paid in bananas for your weeks effort but under DIBP policy, remuneration is meant to cover not only perhaps food to keep you happy but a more substantial financial benefit. Their policy explains;


"For 'remuneration' the policy intention is that applicants have been engaged in the occupation on a paid basis, generally at the award or market rate. Mere emotional or psychological satisfaction or the acquisition of useful, but unpaid, professional experience is not considered 'remuneration' for General Skilled Migration purposes. A person receiving minimal living allowances or scholarships designed to cover expenses would not generally be considered to be remunerated. This is because no financial benefit is derived."


There are many cases where people go on leave from their work such as maternity, paternity or study but the policy describes that only leave on full pay can be counted as time during which an applicant was "employed". It would not be sufficient that your employer back home to be keeping your seat warm while your studying or interning in Australia. You would need to demonstrate that the cash is still rolling in.


20 hours a week?


Firstly one needs to come to terms with the fact that 20 hours per week, means just as it sounds, 20 hours per week.  


It does not mean 19 hours one week then 21 hours the next and this equals 20 hours on average per week. The word "average" is not in regulations and a DIBP case officers life only revolve around definitions.


If you need for example, to prove 12 months of Australian work experience for 5 points under Schedule 6D then you would need to demonstrate 52 weeks of pay where you worked at least 20 hours per week for each week. 


 The DIBP policy example on this states "Applicants who have been working in Australia 17 hours a week on a student visa while classes are in session cannot make up the extra 3 hours a week by working longer hours during holiday periods." No rocket science here.


In a rare example of the DIBP's limited compassionate ability the policy also makes the following statement


"Case officers should be fair and reasonable when applying this rule in relation to applicants employed on a casual basis who, because of illness or other compelling and compassionate reasons, may have fallen short of the 20 hour benchmark for one or more weeks over the relevant period."


Hmm, fair and reasonable eh? I think that policy was written by some fresh graduate who entered the public service with great ambitions and aspirations of making a the world a better place. No doubt they are no longer "employed" at the DIBP.


If one of your payslips indicates 19.5 hours for the week, then it would safest not to count that week towards the total needed. I don't think the case officer will be interested to hear that your pet rabbit became ill while you were at work and you needed to leave early so that put you under 20 hours.


If you receive pay-slips fortnightly, then be prepared to answer your case officers questions as to indicate how may hours you worked for each of those two weeks. Same goes if you get paid monthly. Your employers time sheets may be handy to justify your claim.


Remember at the end of the day it your responsibility to prove your case to the DIBP, not for them to make assumptions.


Skilled Employment


A question often asked is; can I use the part time work I did during my Bachelor Degree?


Basic rule number 1. You are not qualified for the skilled level to claim your employment experience unless you have first met the minimum education or work experience requirement.  


In the Migration Regulations the ANZSCO dictionary is used as the authoritive source on the issue of being qualified or not. Please follow the link, then search for your occupation and see what the minimum education level is required.


Once you meet that minimum, then you are regarded as qualified and your paid work experience time can be counted. However for some occupations it may not even be as simple as that due to the existence of the DIBP authorized skill assessment body.


Skill Assessments


Many, many years ago, the DIBP used to judge if an applicant was skilled in their occupation. Well you can imagine what a fine mess was made of that. Now we have skill assessment bodies, which on the whole keep the mess down to a minimum. The problem with skill assessment bodies are that they cannot be challenged and sometimes I wonder if the they are part of the Fringe team or not.


For example, some authorized skill assessment bodies require work experience after the completion of your degree such as VETASSESS and the ACS before you are so called "skilled".  


 In some cases the professional skill assessment body where you obtained your mandatory skill assessment for the visa application (for these type of visas) can give you a written assessment of your skilled employment claim. Although not technically necessary under the regulations, such a written assessment can great enhance your ability to claim points for "employment".   

We find many case officers actually demand that such an assessment be carried for it saves them from the occupational hazard of thinking while they work.




Basic Rule No 2. Do not simply cut and paste the ANZSCO description onto your employment reference letter and expect the DIBP to believe you.


Such an approach in trying to gain your residency would be the act of a mad hare waving a red flag to a bull. You'd probably be badgered to death by the DIBP or end up as a lame duck in a kangaroo court. You get the idea.


Over the years some of our clients have given us nice cut and paste jobs from the ANZSCO and we simply hand it back to them to start again. Often the role of Migration Agents is to protect clients from themselves.




Basic Rule No. 3.  Titles mean nothing.   


Use the ANZSCO definition for your occupation as a guide only. Your experience description should be in your own words is a summary of what you actually do. Don't make out that you're the "Sales Executive" when you spend your day at the shop counter or the "Accountant" because you balance the till at the end of the day. The DIBP conduct regular site visits all over the world to verify work experience claims and you will feel pretty stupid when they roll in looking for the HR Manager of a 7 Eleven store.


More of that in Part 2. Stay tuned.



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