From 24 November 2012 this visa will change name to Temporary Work (Skilled) (subclass 457) visa.
See: Temporary Work (Skilled) visa (subclass 457)
Temporary Work (Skilled) - Standard Business Sponsorship (Subclass 457)
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This information tells you the requirements you must meet to nominate a skilled worker for a position in your business under the subclass 457 visa program.
Nomination is the process of identifying an eligible occupation in a business to be filled by a skilled overseas worker. The nomination process is required for both standard business sponsors and parties to a labour agreement.
The purpose of the nomination process is to identify all of the following:
- the occupation relevant to the position to be filled
- the skills and experience required for the position
- the market salary rate for the position and the salary rate to be paid to the prospective overseas employee
- the name of the prospective overseas employee
- the location where the employee will be working.
If you are not familiar with the subclass 457 visa process, please read the following information pages to understand the nomination process. Lodging an incomplete or incorrect nomination application could lead to substantial delays.
If you are familiar with the eligibility requirements and employer obligations for the subclass 457 visa, you can go directly to Applying for this visa.
To lodge a nomination for a subclass 457 visa, you must be an approved business sponsor or have lodged a sponsorship application. You can lodge a sponsorship application at the same time as a nomination and visa application.
For a nomination to be approved, you must meet the following requirements:
- the worker: name the person who will work in the nominated occupation and where they will work in Australia
- nominate an eligible occupation
- meet direct employer requirements
- provide employment terms and conditions that meet certain requirements.
The worker you are nominating can be one of the following:
- a holder of a subclass 457 visa
- an applicant for a subclass 457 visa
- a proposed applicant for a subclass 457 visa.
If you are an approved standard business sponsor, the occupation you are nominating must be eligible for the subclass 457 visa program.
The list of eligible occupations is available on the Consolidated Sponsored Occupations List ( 76KB PDF file). This list includes a number (an ANZSCO Code) and an Occupation Title.
A description of the qualifications and experience required for each of the eligible occupations is on the website of the Australian Bureau of Statistics (ABS) 1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1.
This opens a search page to help you find an occupation. It will help you identify the tasks your nominee would be expected to perform in the position you are nominating them for and the qualifications and amount of work experience they would be required to have.
For example a Chef (ANZSCO code 351311) will have either a relevant associate degree, advanced diploma, or diploma (or equivalent) or at least three years relevant experience. Tasks may include planning menus, preparing and cooking food and possible selection and training of staff.
Sponsors who want to employ subclass 457 visa holders in an occupation which is not on the Consolidated Sponsored Occupations List ( 76KB PDF file) must do so under a labour agreement.
For a business in Australia
If you are an approved standard business sponsor who operates a business in Australia, the worker you nominate must work directly for your business or for an associated entity of your business. In either case, you retain ultimate responsibility for the worker you have sponsored, and you must comply with the required sponsorship obligations.
If you fail to comply with any applicable sponsorship obligations it may result in sanctions, barring or cancellation from the subclass 457 visa program.
Some occupations are exempt from this requirement. They are listed in Exemption from the requirement to work directly for the sponsor – Legislative Instrument IMMI 10/030.
For a business outside Australia
If you do not operate a business in Australia, the worker you nominate must work directly for your business only. The primary sponsored person is not permitted to work for a business in Australia even if it is an associated entity of your business.
Employers who propose to supply the services of subclass 457 visa holders to unrelated businesses cannot do so under standard business sponsorship. They can only do this through a labour agreement.
For standard business sponsors, the obligation to ensure equivalent terms and conditions of employment will mean that you must pay your workers the market salary rate. This requirement is designed to protect skilled overseas workers from exploitation. It is also designed to ensure that skilled overseas workers are not used to 'undercut' local employment conditions and wages.
If you are a party to an approved labour agreement, you must pay your overseas workers in accordance with the terms of the labour agreement.
The way you can demonstrate the market salary rate depends on whether:
- there is an Australian performing equivalent work in the workplace
- there is no Australian performing equivalent work in the workplace.
There is an Australian performing equivalent work in the workplace
You can demonstrate the market salary rate by referring to the terms and conditions that apply to an Australian worker, as follows:
- If the terms and conditions of the Australian performing equivalent work are directly set by an industrial instrument (such as a modern award or enterprise agreement) then this may be used to demonstrate the market salary rate. If you are referring to an award to demonstrate the market salary rate you must provide evidence that Australians performing equivalent work are being paid the award rate.
- If the Australian worker is not covered by an industrial instrument because they are employed under a common law contract, then the terms and conditions in the common law contract may be used to demonstrate the market salary rate.
There is no Australian performing equivalent work in the workplace
You can demonstrate the market salary rate by referring to an industrial instrument (such as a modern award or enterprise agreement) that directly sets the terms and conditions of Australians performing equivalent work.
Applicable industry awards may be used to demonstrate the market salary rate where the awards directly set the terms and conditions of Australians performing equivalent work.
If there is no equivalent worker or relevant industrial instrument, you must demonstrate the market salary rate. Some relevant evidence may include, but is not limited to:
- data from reputable remuneration surveys
- published earnings data (for example data from the Australian Bureau of Statistics)
- evidence of what employees performing equivalent work are paid in similar workplaces in that location.
You must satisfy the department that the proposed terms and conditions of employment are appropriate for that location and industry.
Exemption from demonstrating market salary rates
A standard business sponsor is not required to demonstrate payment of market salary rate if the proposed annual earnings of the worker is at least AUD180 000 (the exemption rate).
The Temporary Skilled Migration Income Threshold
The Temporary Skilled Migration Income Threshold (TSMIT) ensures that your workers will have enough money to be self reliant while they are in Australia.
You must demonstrate that the market salary rate for the position you are seeking to fill is greater than the TSMIT. If the market salary rate for the position you wish to fill does not exceed the TSMIT, you will not be able to access the subclass 457 visa program.
If the market salary rate for the position you want to fill is below the TSMIT, you cannot pay the overseas worker the TSMIT or more simply to access the program. The TSMIT does not determine the salary you should pay your worker from outside Australia.
Should subclass 457 visa holders be paid the TSMIT?
The TSMIT has no bearing on what the subclass 457 visa holder should be paid in the workplace and should not be considered as the applicable market salary rate if you do not currently employ an equivalent Australian citizen or permanent resident. It is the market salary rate for the nominated occupation, not the nominated worker's proposed salary, which is compared to the TSMIT. Therefore, it is not possible for a 457 sponsor to inflate a nominated worker's proposed salary in order to meet the TSMIT requirement.
Example: If the market salary rate for an occupation is AUD39 500 – that is, the market salary rate amount that is paid to an equivalent Australian in the sponsor's workplace – then the nomination is likely to be refused, as the market salary rate is below the TSMIT. Even if the sponsor decided to offer the nominated worker a salary of AUD51 400, then the nomination would still be refused, as it is the market salary rate that the department compares to TSMIT, not the actual salary proposed.
The department may take into account the existence of adverse information whenever it is making particular decisions about sponsors. The adverse information test is applied whenever you or a skilled worker lodges any application in relation to a subclass 457 visa.
No adverse information for sponsors provides more information.
A nomination is valid until the earliest of the following:
- the day the department receives notification in writing of the withdrawal of the nomination by the sponsor
- 12 months after the day the nomination is approved
- the day the applicant, or the proposed applicant, for the nominated occupation, is granted a subclass 457 visa
- if the approval of the nomination is given to a standard business sponsor – three months after the day their approval as a standard business sponsor ceases
- if the approval of the nomination is given to a standard business sponsor, and their approval as a standard business sponsor is cancelled – the day the approval as a standard business sponsor is cancelled
- if the approval of the nomination is given to a party to a labour agreement – the day the labour agreement ceases.