Nomination requirements

The occupation the employee is to work in must, in general, be on the list of approved occupations for 457 visas. A revised 457 occupations list was produced on 11 September 2009.

According new legislation the employer must now certify that the duties of the position match the ASCO definition of the occupation and that the qualifications and experience of the applicant meet the skill level specified in the definition.

A number of "not elsewhere classified" occupations have been eliminated. These are occupations where the tasks and duties are not specified by ASCO, and are considered "catch all" occupations.

An attempt has been made to narrow the "not elsewhere classified" occupations still on the list by including definitions and a list of allowed specialisations. This has also been done for butchers and project/program administrators. Another category targeted for elimination are occupations in the meat industry – an area where employment of 457 visa holders has been of concern to unions for some time.

Farmers and farm overseers have been added to the approved list of 457 occupations.

Another interesting addition is that the legislation has a provision to require employers to seek the support of certain organisations for a nomination to be approved in certain occupations. Presumably, this would include occupations where labour unions had concerns about presence of overseas workers in Australia.

The only way to nominate employees who are not the approved list is to negotiate a "labour agreement" with the Department of Immigration and the Department of Employment and Workplace relations.

This process can take many months and the agreement can be quite restrictive in terms of which occupations can be nominated, salary level and training undertakings. Previously, it was possible for employers operating in regional areas to nominate occupations outside the usual list, but this concession has now been eliminated.

Conclusion

Sponsors should ensure that they review their current arrangements and align them to the new obligations to avoid any breaches and consequential sanctions or penalties.
Employment agreements may need to be reviewed to provide clarity about employer and employee responsibilities that are specific to overseas workers and to minimise the risk of non-compliance with immigration laws.

For migration support, please contact us by e-mail: info1@pacific-center.net or telephone: +61 (7) 49 46 14 78