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Immigration Daily News Is 80 percent a "significant majority" when it comes to tasks and duties on a 457 visa?Australian Immigration Daily News
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Is 80 percent a "significant majority" when it comes to tasks and duties on a 457 visa?
It was always my view, that there is no bigger or smaller half, majority means more than 50 % . Obviously I am wrong . The 457 visa legislation requires nominator to certify that the tasks or duties of the nominated occupation will include a "significant majority" of the tasks or duties described in the relevant occupation dictionary or legislative instrument .
The 457 visa compliance unit intends to sanction my client on the basis of visa holder is performing prescribed tasks and duties for approximately 80% of the employment time. That is "not enough " according to the Delegate .
Seeking explanation what this "significant majority " means, while 80 % "is not good enough " I turned to very helpful , as usually "agent's gateway " getting helpful and competent answer .
Now I know what is the definition of the "significant majority " it is for purpose of regulations 2.73(4)(b) and 2.73(4A)(b).
The "significant majority "is what "decision maker will determine" on a case by case basis .
The Delegate has power to sanction business “on case by case “ basis and delegates “determination “ meaning subjective, personal judgement often affected by bias , not on the basis of regulations (or even policy) .
Anyone got a bit more accurate interpretation of legislation in this regards? All comments will be highly appreciated.
See correspondence below :
Good morning Piotr,
There is no specific percentage, the decision maker will determine what a significant majority is on a case by case basis.
Regards,
Tammy.
457 and Sponsor Monitoring Policy Section
Skilled Migration Policy Branch
Migration and Citizenship Division
Department of Immigration and Border Protection
Blog: migrationblog.immi.gov.au
-----Original Message-----
From: Piotr Ferenc [This email address is being protected from spambots. You need JavaScript enabled to view it.
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Sent: Tuesday, 18 November 2014 2:14 PM
To: 457 Policy
Subject: WWW Form Submission
Below is the result of Agents Gateway feedback Form. It was submitted by Piotr Ferenc (This email address is being protected from spambots. You need JavaScript enabled to view it. ) on Tuesday, November 18, 2014 at 14:13:32
---------------------------------------------------------------------------
MARN: 0743766
message:
Under regulations 2.73(4)(b) and 2.73(4A)(b), standard business sponsors must certify that:
â ¢ the qualifications and experience of the nominee are commensurate with the qualifications and experience described in the relevant occupation dictionary or legislative instrument
and
â ¢ the tasks or duties of the nominated occupation will include a significant majority of the tasks or duties described in the relevant occupation dictionary or legislative instrument
and
â ¢ if the sponsor is an 'overseas business':
o the nominated occupation is a position in the business or
o the nominated occupation is an occupation that is exempt from this requirement
and
â ¢ if the sponsor is an Australian business:
o the nominated occupation is a position in the business or
o the nominated occupation is a position in an 'associated entity' of the business or
o the nominated occupation is an occupation that is exempt from this requirement
Under regulations 2.73(4)(c) and 2.73(4A)(c), parties to a labour agreement provide, as part of the nomination, the certification mentioned in 2.72(11)(b) or (c). A party to a labour agreement will meet this requirement if they certify that:
â ¢ the tasks or duties of the position will include a significant majority of the tasks or duties of the nominated occupation listed in the occupation dictionary, or the nominated occupation specified in the labour agreement, and
â ¢ the qualifications and experience of the nominee are commensurate with the qualifications and experience specified for the occupation in the labour agreement.
Could you please clarify what is the percentage of time spend by visa holder performing tasks and duties of a nominated position that satisfies "significant majority of the tasks or duties described in the relevant occupation dictionary or legislative instrument"? Does 60% , 70% or 80 % of the time spent on prescribed activity constitute "significant majority "?
Comments
-
Wednesday, 04 March 2015Hi Miklos,
You appear to be reading the ANZSCO wrong: ANSCO for a Make up artist is:
Designs and applies make up to actors, presenters and other performing artists.
Skill Level: 3
The list of 'Tasks' covers all the trades under the ANZSCO UNIT GROUP - 3995 Performing Arts Technicians:
399511 Broadcast Transmitter Operator
399512 Camera Operator (Film, Television or Video)
399513 Light Technician
399514 Make Up Artist
399515 Musical Instrument Maker or Repairer
399516 Sound Technician
399517 Television Equipment Operator
399599 Performing Arts Technicians nec
NOT just make up artists.
lets not inflame prejudices without knowledge
TM -
Thursday, 05 March 2015
Hi Terry,
Thanks heaps. I was aware of the difference between the occupation, its specific requirement and the "Unit Group Tasks". At the same time, i had an unusual occupation. the majority of the "tasks" actually match the actual occupation.
Have a great day
M -
Wednesday, 26 November 2014
This is an area where I believe the Regulations and Policy are very confusing. Case officers and sometimes Agents, misinterpret the Regulations and Policy as I have has issues with case officers in this regard.
In the example above of Make Up Artist, the listed duties are for the entire unit group which includes a number of very distinct occupations.
The “significant majority” test should be applied only to the specific occupation, which in this case list the duties as “Designs and applies make up to actors, presenters and other performing artists”. The test should not be applied to the entire list of tasks for the whole unit group. -
Wednesday, 26 November 2014
I cecided to follow up on the "helpfull" and "to the pont " answer of policy officer asking further question :
Thank you Tammy ,
Could you please indicate what factors the decision maker takes into consideration under DIBP guideliness. Majority means more than 50 % , expression "significant majority" is meaningless . There is nothing in policy or regulations, indicating how the officers suppose to make their assessment "on a case by case basis". On what grounds decision makes make assessment other their own subjective judgment ?
Kind regards
Piotr Ferenc
MARN 0743766
Patiently waiting for answer reffering to regulations, pam , possibly to common sense....
Will keep you posted Piotr
Immigration blog
I've recently lodged a 457 for a make up artist ( 399514 MAKE UP ARTIST).
The ANZSCO description is as follows:
- operating microwave equipment to transmit video information to transmitter sites and receiving video signals from remote locations
- maintaining and repairing radio and television transmitters and associated equipment
- selecting and attaching equipment to cameras, positioning cameras, and following the action of scenes being photographed while adjusting controls
- positioning equipment, such as spotlights, floodlights and cables, and operating lights during filming, broadcasting and stage performances
- applying and retouching make up during shooting and performance, including special effects make up such as scars and wounds
- designing and making musical instruments and instrument parts using specially selected materials and techniques similar to those used in cabinetmaking, metal pipe making, silversmithing and wood carving, and tuning and repairing musical instruments
- setting up and adjusting equipment such as microphones, and operating sound mixing consoles and associated equipment to regulate volume and sound quality
- selecting and setting up television recording, editing and mixing equipment, and adjusting and monitoring their operation
Wondering how many make up artist actually do 50/60/70/80% of the above... I'll guess NONE...
I understand the need for standards, as well as the need for the CO's discretionary power; what i don't understand is the incompetence and the lack of understanding of the private sector when it comes to decision making
Guess MRT needs revenue as well?!
Miklos