Subclass 457 Visa Programme Update – March 2017

Ethos Migration has received correspondence from the Department of Immigration & Border Protection regarding a range of matters surrounding the subclass 457 visa programme which consists of:

• Retail Manager occupations and the Subclass 457 visa programme
• The ceasing of the Fast Food Industry Labour Agreement
• Skills Assessments and processes
• Nomination Refusals
• Global allocation model for processing and associated processing times

Store Manager/Retail Manager positions

The Department has made it clear that the subclass 457 visa programme is not appropriate to be used for sponsoring Store Manager positions. The roles and responsibilities of a store manager align with the occupation of Retail Manager (General) which is not included in the Consolidated Sponsored Occupation List.

The Department asks that employers do not use the 457 programme to sponsor such positions as it is likely it will be refused.

It has been noted however, that in some circumstances the Department may provide a more laissez-faire approach in circumstances that involve a business setting up a series of outlets in Australia for the first time and intends on employing experienced international store managers to assist in the establishment of the flagship store in Australia due to the nature of this work being beyond the standard roles and responsibilities associated with a store manager.

The Department will require a very strong business case from the applicant to facilitate this process and also has the option to apply for a Company Specific Labour Agreement (LA) if a business has a genuine need to fill certain Retail Manager or associated positions with overseas workers.

If your business is requiring Retail Managers or Store Manager’s for this purpose, it is strongly you recommended you contact Ethos Migration for further advice.

Skills Assessments

The Department has the power to request skills assessments for any applicant’s 457 visa application if they are not satisfied the applicant has the appropriate experience and/or qualifications required to undertake the role. Further clarity on this issue has been provided as some occupations require ‘mandatory’ skills assessments.

Applicants nominated in the role of ‘Program or Project Administrators (ANZSCO 511112) or Specialist Managers NEC (ANZSCO 139999) have now the following exemptions to being required to undertake a formal skills assessment when nominated for their positions:

• If they are applying for a repeat 457 visa application and have completed a VETASSESS skills assessment for their previous visa for the same occupation OR;
• If the applicant has been nominated as a intra-company transfer and employed in a similar occupation for the same company overseas

Officers may also utilise their discretion not to require a Skills Assessment from a visa applicant if the applicant has significant formal qualifications and/or extensive work experience and a salary level of $180,000 or more, or the sponsor is accredited. This will only apply to occupation’s that have their occupation listed as VETASSESS being the formal skills assessment authority.

Standard Business Sponsorship’s, Overseas Standard Business Sponsorship’s, Accredited Sponsor’s and Labour Agreements

The amount of time for sponsorship approval’s vary based on the type of sponsorship that is being applied for. Below is a breakdown of the different sponsorships available and the period of sponsorship approvals.

Startup Australian Businesses operating for less than 12 months – 18 months

Standard Business Sponsors – 5 years

Accredited Sponsors – 6 years

Labour Agreement (LA) – The period of the approval as agreed

Overseas Businesses seeking to establish a business in Australia – 18 months

Overseas business who have contractual obligations in Australia – 5 years

Salary, and hours required by Subclass 457 visa holders

The Department has emphasised that the subclass 457 programme has been established to address genuine skill shortages in the Australian labour market where appropriately skilled Australians cannot be sourced. As such, part time work arrangements will only be approved in limited circumstances.

The limited circumstances are:

• All other 457 nomination requirements are met such as market salary rates and the Temporary Skilled Migration Income Threshold (TSMIT) or
• The nominated earnings of the applicant are $250,000 or above

It is also reminded that part time work arrangements are unable to be approved for nominations associated with a labour agreement as the agreements make it mandatory for the work arrangements to be on a full time basis.

Labour Agreements

On the 2 March 2017 a decision was made by the Minister for Immigration and Border Protection to cease the Fast Food Industry Labour Agreement (FFILA) that was available to businesses in this industry.

As a result, applications under the FFILA will no longer be accepted by the Department.

Businesses will still have the option to apply for company specific labour agreements however a strong business case with exceptional circumstances must exist. When putting forward these agreements, employers are reminded that a genuine skills shortage for an occupation must exist with the terms and conditions of the occupation considered on a case by case basis.

Generally, company specific Labour Agreements must specify:

• A skills shortage in the context of a particular business/position and why the ongoing recruitment activities from the local labour market has failed in that particular location and;
• The company has reduced its reliance on overseas workers

When requesting a labour agreement from the Department, it is important to note that the business must demonstrate that it has made genuine efforts to recruit Australians and as such, the onus is on the employer to put forward a strong business case demonstrating their is a genuine labour market need that the labour agreement will address.

Sponsorship Obligations

The Department has advised that there has been a spike in the number of sponsorship breaches committed by sponsors in the 2015-2016 period. It is advised that sponsor’s continue to meet their sponsorship obligations to avoid sanctions and civil penalty proceedings against them.

The most common obligation that is not being met by sponsors is the ‘commitment to training’ obligation which requires business sponsors to meet either Training Benchmark A or Training Benchmark B while sponsoring overseas workers.

For more information on any of the changes in the subclass 457 visa programme, sponsors, applicants and visa holders are encouraged to contact Ethos Migration on 1300 083 843 or via email at info@ethosmigration.com.au