A particularly tricky requirement to meet for prospective employers looking to nominate a foreign worker under the subclass 482 Temporary Skill Shortage visa program, is the need to demonstrate that the position they are nominating is ‘genuine’.
Called the ‘Genuine Position requirement’, the rationale behind it is to ensure that a position has not been opened in the business to produce a migration outcome, where a business would not have otherwise required someone in this position.
When considering if this criteria is satisfied, the Department will consider, amongst other things:
- The scope and scale of the business;
- Whether the position fits clearly within the ordinary activities of the business;
- If the business has provided evidence that demonstrates that new positions are required;
- If there is evidence relating to a previous occupant employed in the position; and
- If there is evidence that the position has been advertised and filled through a transparent recruitment process.
Examples of when the Department will apply further scrutiny are:
- If the business has retrenched employees in the last 12 months;
- If other Australian workers have experienced a reduction of hours in the last 12 months;
- If other Australian workers have experienced a reduction in pay and conditions in the last 12 months;
- If the business has employed one or more temporary visa holder(s) on conditions less favourable than Australian workers; and
- If the business has recruited one or more temporary visa holders beyond the ordinary scope of the business.
When determining how best to address the Genuine Position requirement, consider what “story” you might be telling about this position:
- Why does your business require someone to undertake this work? Is it because your business is expanding?
- Has someone recently resigned and you have struggled to hire from the local labour market?
- Does your business require someone with highly technical skills that you struggle to find in the local labour market?
For assistance navigating the intricacies of the subclass 482 Temporary Skill Shortage visa program, click here to book a free 10 minute consultation to speak with one of our experienced immigration lawyers.