After much deliberation, the Australian Department of Home Affairs (the Department) has introduced a host of legislative instruments which establish in law the changes to the Employer Nomination Scheme (ENS) program. These changes have been discussed by the Department for almost 12 months (see our summary here) and largely reflect the initial proposals.
A breakdown of the implementation of these changes is included below:
Comparison of ENS changes
Area of change |
Prior (ENS) |
Current (ENS) |
Summary |
| (1) Annual Market Salary Rate (Direct Entry and Temporary Residence Transition Stream) | The nominator was required to provide evidence of how the terms and conditions of employment that will apply to the nominee are at least as favourable as those that apply to Australian employees at that location.
|
Previous phrase has been replaced with a defined Annual Market Salary Rate (AMSR). Method for determining the AMSR where an Australian worker is performing equivalent work to be (1) an existing Fair Work Instrument, State industrial instrument or transitional instrument or (2) Where there is no instrument, determined by reference to relevant employment documents of the Australian employee.
Where no Australian worker is performing equivalent work (1) an existing Fair Work Instrument, State industrial instrument or transitional instrument or (2) If no instrument exists, then AMSR must be determined by reference to relevant information including: (a) information published on the Australian Government’s Job Outlook website; (b) job advertisements from a national recruitment website or national print media that are in English and specify the salary arrangements for the advertised position; (c) written advice from registered employer associations and/or unions; (d) remuneration surveys generated across the relevant industry by a reputable organisation or body |
Replacing the general phrase “to provide terms and conditions as favourable to an Australian employee” with a defined “Annual Market Salary Rate” (note change does not apply to nominations lodged prior to 18 March 2018).
|
|
(2) Temporary Skilled Migration Income Threshold (TSMIT) (Direct Entry and Temporary Residence Transition Stream) |
Previously no minimum salary. | Now must apply TSMIT: $53,900 |
A minimum salary of $53,900 (or TSMIT) is now applicable to all ENS nominations. |
| (3) Occupation Lists (Direct Entry and Temporary Residence Transition Stream) | Old occupation lists consisted of STSOL and MLTSSL. | Only one list for Direct Entry (DE) and Temporary Residence Transition Stream (TRTS): MLTSSL. |
All occupations sponsored for ENS applications must now be from a reduced MLTSSL (note transitional provisions apply – see here) |
|
(4) Occupation Lists – Caveats (Direct Entry and Temporary Residence Transition Stream) |
Certain caveated occupations needed to meet base salary requirements (DES only) | Certain caveated occupations now need to meet annual earnings requirements which includes wages and non-monetary benefits (both streams)
|
References to ‘base salary’ in the caveats under the repealed instrument have been changed to ‘annual earnings’. |
|
(5) Definitions in relation to meeting the “training requirement” (Direct Entry) |
See summary.
|
See summary. |
Changes to existing definitions of Australian employees, payroll and recent expenditure as well as an amended plain word definition of Training Benchmarks A and B. Note that while the language of Schedule 1 has been amended, the core requirements have not changed from the previous instrument IMMI 17/074. |
|
(6) Nominator’s financial capacity (TRTS) |
Not required – but could be considered under Departmental policy. | The nominator’s business must have the capacity to employ the nominee for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. |
An assessment as to the nominator’s financial capacity now forms part of the actual legislation. |
|
(7) Genuineness (TRTS) |
Previously not required. | No information must be known to the Department to indicate that the visa applicant is not currently “genuinely performing” the tasks of their nominated occupation, unless reasonable to disregard. |
Introduction of “genuineness” criteria mirroring the TSS visa. |
|
(8) Skills and Employment Exemption (Direct Entry) |
University Tutors (242112) were exempted from skills and employment experience requirements for Direct Entry applications.
|
University Tutors (242112) removed, additionally this occupation is no longer on the MLTSSL.
|
University Tutors (242112) removed from skills and employment experience exemption requirements for Direct Entry. |
|
(9) Age Exemption (Direct Entry) |
Medical Practitioners (ANZSCO 253***) employed for 4 years prior to application holding a 457 (at least 2 years of which must have been in regional Australia) for a nominated position in regional Australia, were exempt from age requirements. | Removed age exemption for medical practitioner (ANZSCO 253***). |
Medical practitioners no longer can satisfy age exemption (note transitional provisions apply – see: https://hannantew.com.au/february-2018-updates-employer-sponsored-permanent-residency/) |
|
(10) Age Exemption (TRTS) |
Age limit of under 50 unless below exemptions applied.
457 holders who met the fair work high income threshold for 4 years could meet age exemption.
Medical practitioner (ANZSCO 253***) who had 4 years work experience on a 457 visa immediately prior
|
Age limit of under 45 unless below exemptions apply.
457 holders who meet high income threshold for 3 years can meet exemption.
Reduced age exemption for medical practitioner (ANZSCO 253***) to 3 years work experience on a 457 or 482 visa during the 3 years prior
Transition: 186 applicants who held 457 visa or had applied for 457 visa as of 18 April 2017 are exempt from the 45 requirement if they are below 50 at time of application. |
Further age exemptions introduced along with transitional arrangements. |
|
(11) Duration employed on 457/TSS visa (TRTS) |
The person has been employed by the sponsor for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application. | The person must be employed in the position for a total period of at least 3 years (not including any periods of unpaid leave) in the period of 4 years immediately before the application. |
Increase in the number of years the visa holder must be working with their sponsor (note transitional provisions apply – see: https://hannantew.com.au/february-2018-updates-employer-sponsored-permanent-residency/). |
Please note that the above is a summary only. Please seek advice for your specific circumstances for a proper assessment.
Analysis
Fortunately the significant changes have established transitional provisions for certain pre-existing 457 visa holders and / or those who had previously lodged ENS nomination applications. This, along with the frequent updates about the proposed changes has given Australian businesses some degree of time to adjust to the changes.
In any case, the changes are tempered by the welcome announcement by the Hon Michaelia Cash in relation to the pilot of the Global Talent Scheme from 1 July 2018. Depending on the contents of the new pilot, this new stream is hoped to ease the pathway to permanent residence through the ENS program for highly skilled global talent. You can read our take on this new category here.
Other considerations
Further changes also took effect with respect of the Temporary Skilled Shortage (TSS) visas. Our summary of these changes is available here.
Next Steps
If you’re a prospective ENS visa applicant or are seeking clarification about these changes, we’d love to put your mind at ease. Contact us by email at [email protected] or phone +61 3 9016 0484 to obtain further guidance.
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