Special Employer Update | Subclass 186 Nominations – Genuine Position and Advertising Requirement

 

 

On 4 September 2020, the Department of Home Affairs released advice that it is the Australian Government’s expectation that positions will be advertised on the government’s Jobactive website before seeking to nominate an overseas worker for an Employer Nomination Scheme Subclass 186 visa.

 

Updated Policy

The Department have now released updated policy advice, to clarify the evidence that an employer is required to provide to satisfy the following criteria for a Subclass 186 visa,

“there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator” (Reg 5.19(k)).”

This criteria applies to Subclass 186 visa nominations and  applications through the Temporary Transition and Direct Entry Streams.

 

Genuine Need – Background and Required Evidence

The Department’s updated policy advice for Subclass 186 nomination and visa applications contains the following statement:

“The COVID-19 pandemic has severely disrupted Australia’s labour market and many Australian workers have been stood down or have had their employment terminated. As a result, the Government is committed to ensuring that Australian workers are prioritised for job opportunities. When determining whether there is a genuine need for an overseas worker, decision makers are expected to pay more attention to relevant factors in the COVID-19 environment.”

 

The Department’s policy instructs case officers, when assessing ‘genuine need’ to:

• establish that there indeed exists a genuine need for the nominated position, and ,
• verify claims made in the applicants previous Subclass 457/ 482 nomination pertaining to genuine need where concerns about their validity exist.

 

When making their assessment, the case officer has been instructed to consider the information and documents lodged in support of the Subclass 186 visa application, including those that relate to the nature of the employer’s business and structure.

 

The Department’s policy advises they will consider the following factors:

• whether the employer has sought to find an Australian worker for the position, such as through advertising the vacancy on the Government’s Jobactive website or through other national advertisements;
•  whether the information provided with the application identifies and substantiates a genuine need for the nominator to employ the applicant, taking into account:
  •  the nature and scope of the business activities of the employer including:
    • the likely impact on the business if the nomination was refused; and
    • any information that the relevant industry is in decline; and
  •  whether the position:
    • continues to fit within the regular and ongoing business activity of the employer, as demonstrated by the organisation chart or other evidence provided;
    • has altered over time;
    • continues to be genuinely needed in the regular, ongoing business activity of the employer;
    • contributes to maintaining or enhancing the volume and/or quality of business outputs; and,
    • is relevant to the proposed business activity.

 

If the case officer has doubts..

If the assessing case officer has any doubts that there is a genuine need for the applicant to be employed in the position, then they can request additional documents and information.

If the business has actioned any of the following in the last 12 months, then the case officer will require significantly more information as to why there is a genuine need to nominate the expatriate employee for a permanent visa:

• retrenched employees;
• reduced the hours of employees;
• reduced the pay and conditions ;
• employment of a temporary visa holder on conditions less favourable than those for Australian employees; or,
• recruitment of temporary visa holders beyond the ordinary scope of the operation of the business.

 

Additional Considerations: Direct Entry Stream

While the above requirements apply to both Subclass 186 visa applications through the Temporary Transition Stream and Direct Entry Stream, case officers have been instructed to require a greater level of evidence to satisfy the ‘genuine need’ criteria for Direct Entry Stream applications. Policy advises that case officers should take into consideration the following when making their final decision for these applications:

• any demonstrated increases in business activity for the nominating employer;
• any demonstrated plans for future expansion for the nominating employer;
• overtime being undertaken by employees in the business to fill the vacant position;
• the position has existed and been previously occupied but has become vacant through attrition;
• evidence the position can only be filled by a foreign worker; and,
• is currently occupied by a temporary resident.

 

AHWC Advice

We would recommend that, until further policy is announced, an employer provides the following additional documents and evidence in support of Subclass 186 visa applications:

• Evidence of advertising for the nominating position. (Please note that the Labour Market Testing criteria for the Subclass 482 visa program does not apply for Subclass 186 visas and there is no requirement for the advert to be posted for the 28 days consecutively across, three different platforms);
• An organisation chart or document evidencing the business structure; and,
• A genuine need submission that addresses the requirements outlined in the Department’s updated policy. We can assist with drafting this submission on an employer’s behalf.