The Intersection Between ANZSCO and the Nominated Position

 

According to the Australian Bureau of Statistics, the Australian and New Zealand Standard Classification of Occupations (ANZSCO) is a “standardised collection of occupation data that is intended to provide an integrated framework for storing, organising and reporting occupation-related information in both statistical and client-oriented applications”[1].

The Department of Immigration and Border Protection (‘the Department’) utilises ANZSCO for two main purposes:

 

  • “As a means of assessing whether the occupations of applicants for various skilled and temporary business entry visa classes meet Australian requirements; and
  • To inform short and long-term settlement and other planning, survey or reporting process.”[2]

 

Under Australian migration law, reliance on the ANZSCO is legislatively mandated in many circumstances i.e. setting out occupational lists or skill/occupational exemptions. Meanwhile migration practitioners are trained, as part of standard migration practice, to consider occupations, job positions and an applicant’s work history in terms of the ANZSCO.

The Temporary Skilled (Subclass 457) Program is an example of a visa programme that heavily utilises the ANZSCO.

 

Reg 2.72(8A)(a) of the Migration Regulations 1994 (‘the Regulations’) requires all sponsors to specify a “6 digit ANZSCO code” for the nominated occupation in the nomination application:

 

          (8A)  If the nomination is made on or after 1 July 2010—the Minister is satisfied that the person has provided the following information as part of the nomination:

                     (a)  if there is a 6‑digit ANZSCO code for the nominated occupation—the name of the occupation and the corresponding 6‑digit ANZSCO code[3]

 

Furthermore Reg 2.72(8A)(a) requires the nominated occupation and its corresponding 6-digit ANZSCO code to be taken directly from the ANZSCO. This is also reinforced in the nomination upload where the following instructions are provided when one clicks on the  of the ‘Occupation’ entry:

 

This is the name of the nominated occupation as it appears in the ANZSCO Dictionary or the relevant Labour Agreement.[4]  

 

The effect of Reg 2.72(8A)(a) is that a person would not ordinarily input, for example, ‘Doctor’ as the occupation in the nomination. Instead the ANZSCO Dictionary would be referred to and the nominated occupation would most likely derive from one of the occupations contained in Minor Group 253 Medical Practitioners of the ANZSCO i.e. General Practitioner (ANZSCO code: 253111), Paediatrician (ANZSCO code: 253321) etc.

 

It is pointed out that the Job Title/Position does not have to exactly match the nominated ANZSCO occupation and it is preferable for a Job Title to remain consistent with internal business documentation rather than to change a Job Title to mimic an ANZSCO occupation. The ANZSCO also notes that “the titles used in ANZSCO are not an exhaustive list of all titles used by people to describe an occupation (e.g. brickie)”[5].

 

Reg 2.72(10)(e)(i)(A) requires that the tasks of position (that will be undertaken by the prospective 457 employee/nominee) should include a significant majority of tasks in the nominated occupation listed in the ANZSCO:

 

          (10)  If the person is a standard business sponsor—the Minister is satisfied that:

                     (e)  if the nomination is made on or after 1 July 2010—the person has certified as part of the nomination, in writing, that:

                             (i)  the tasks of the position include a significant majority of the tasks of:

                                        (A)  the nominated occupation listed in the ANZSCO; or[6]

 

In the past, migration practitioners have ensured compliance with Reg 2.72(10)(e)(i)(A) by providing position descriptions or completing the nomination application form with content that largely replicated the tasks outlined in the ANZSCO occupation. However, in recent times, the replication of the tasks outlined in the nominated ANZSCO occupation has led to issues in relation to the genuineness of a position pursuant to Reg 2.72(10)(f) and issues with regard to the compliance of sponsorship obligations pursuant to Reg 2.86.

The Procedures Advice Manual (PAM3) provides the following instructions regarding positions where the tasks have been replicated from the ANZSCO occupation:

The position associated with the nominated occupation cannot be assessed as being genuine if the tasks of the position do not align with the tasks of the nominated occupation as described in the ANZSCO.

Although the application form or the nominee’s position description may list many of the tasks described in the ANZSCO for the nominated occupation, a careful assessment should be made as to whether the nominee would actually be performing those tasks when taken in the context of where the position would be based.

Officers should be careful not to confuse the job title or name of the position specified on the job description with the tasks of the actual position, and little weight should be given to a list of tasks that has been directly copied from the ANZSCO dictionary into the application form or job description.[7]

[emphasis added]

 

The writer has observed that the Department tends to engage a slippery slope argument where a finding that the position description or the description of the position in the nomination application form has been contrived to match an ANZSCO occupation leads to a finding that the position is not genuine i.e. Reg 2.72(10)(f) is not satisfied. (The issue of genuineness and the assessment of genuineness will be explored further in a later article.)

The mere fact that a position description has directly copied tasks from the nominated ANZSCO occupation should not consequently lead to a finding that the position is not genuine.

However, from a practice point, the writer suggests using the tasks listed in the ANZSCO occupation as headings or a guide rather than directly incorporating the tasks in the position description. A comparative assessment can be undertaken where each task in a position description is examined to determine if it would generally fall under one or more of the tasks in the nominated ANZSCO occupation.

For example, a position description outlines the following task for a Customer Service Manager:

Meets customer service financial objectives by forecasting requirements; preparing an annual budget; scheduling expenditures; analysing variances; initiating corrective actions.

The above task may arguably fall under the following ANZSCO tasks for Customer Service Manager:

 

  • developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided
  • providing direction and feedback to team members and assisting with recruitment
  • planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
  • liaising with other organisational units, service agents and customers to identify and respond to customer expectations

 

It is worth examining how the ANZSCO Dictionary conceptualises ‘occupation’:

 

“An ‘occupation’ is defined as a set of jobs that require the performance of similar or identical sets of tasks. As it is rare for two actual jobs to have identical sets of tasks, in practical terms, an ‘occupation’ is a set of jobs whose main tasks are characterised by a high degree of similarity.”[8]

[emphasis added]

 

As outlined above, the concept of ‘occupation’ in the ANZSCO is essentially a term used to group together jobs which have similar tasks or characteristics although the exigencies of individual businesses mean that the tasks for a position may vary. In other words, the tasks for a nominated position should be specific to each business and position descriptions should be documents which are individualised and reflective of the requirements of each business/sponsor.

 

In addition, Reg 2.7(10)(e) only requires that the position includes a ‘significant majority of tasks’ in the nominated ANZSCO occupation. In other words, the position description does not need to include all the tasks outlined for the ANZSCO occupation. It is also pointed out that the tasks for an ANZSCO occupation are actually the tasks for the entire Unit Group. In some cases, particularly when more than one occupation is listed in the Unit Group, some of the tasks for an ANZSCO occupation may in fact be irrelevant for that occupation.

 

For example:

 

UNIT GROUP 2712 JUDICIAL AND OTHER LEGAL PROFESSIONALS

Tasks Include:

    • researching statutes and previous court decisions relevant to cases
    • conducting trials and hearings
    • calling and questioning witnesses
    • hearing and evaluating arguments and evidence in civil and criminal summary matters
    • deciding penalties and sentences within statutory limits, such as fines, bonds and detention, awarding damages in civil matters, and issuing court orders
    • exercising arbitral powers if resolution is not achieved or seems improbable through conciliation
    • preparing settlement memoranda and obtaining signatures of parties
    • advising government of legal, constitutional and parliamentary matters and drafting bills and attending committee meetings during consideration of bills
    • preparing advice on matters associated with intellectual property rights
    • advising clients and agents on legal and technical matters


Occupations:

271211 Judge
271212 Magistrate
271213 Tribunal Member
271214 Intellectual Property Lawyer
271299 Judicial and Other Legal Professionals nec[9]

 

The task of “deciding penalties and sentences within statutory limits, such as fines, bonds and detention, awarding damages in civil matters, and issuing court orders” will not be applicable to the ANZSCO occupation of 271214 Intellectual Property Lawyer and one would not fall foul of Reg 2.72(10)(e) if this particular task was not included in the position description for an Intellectual Property Lawyer.

 

The position description should therefore encapsulate the significant majority of tasks in the ANZSCO occupation (where relevant) but also include any additional tasks (outside of the ANZSCO) which the prospective 457 employee will be required to undertake while performing the role. It is particularly important to include in the position description any additional known tasks which the prospective 457 employee will undertake at the nomination stage, to avoid issues if the sponsor is subsequently monitored.

 

Take for example, the case of Zoom Auto Services Pty Ltd 1405700 (Migration) [2015] AATA 3066 (10 July 2015). In Zoom Auto Services, inspectors undertook two site visits in 2013. On both site visits, the inspectors found one of the 457 visa employees, Mr Sekhon, working at the customer service (point-of-sale) area. The inspectors were advised that Mr Sekhon spent about 50% of his time working in the mechanic workshop and about 50% of his time in the customer service area. The inspectors held that there was a breach of the sponsorship obligations set out in Reg 2.86 as Mr Sekhon was performing tasks that were outside his nominated occupation.  The Tribunal Member found:

 

“34. The Tribunal, having regard to these submissions and evidence provided … accepts that Mr Ganda did not sublet the premises to anyone and that Mr Gagandeep Singh Sekhon worked as a motor mechanic, even if under direction of Mr Suliman informally at the start and if some of his day-to-responsibilities included customer management, for the majority of tasks of a ‘Motor Mechanic’ as set out in ANZSCO.”[10]

 

However, if the position description had incorporated the customer management tasks and had been supplied to the Department as part of the nomination application then the above issue may have been avoided. A strong defence against any claim of non-compliance could have been made on the basis that the Department had approved the nomination with full knowledge of the parameters of the position.  In the employment contract drafted by the Lorenzo Boccabella, the following is always added :

 

  • Duties incidental to and ancillary to the above depending on the exigencies of the work requirements
  • Any administrative tasks and customer relations tasks associated with the above duties

 

Further the other point that should be made is that the ANZCO itself recognised that the tasks identified in the occupations are not meant to be prescriptive.

 

Here is what the ANZSCO saysin this regard :

 

INTERPRETING ANZSCO OCCUPATION DEFINITIONS

ANZSCO is primarily a statistical classification designed to aggregate and organise data collected about jobs or individuals. The classification definitions are based on the skill level and specialisation usually necessary to perform the tasks of the specific occupation, or of most occupations in the group. The definitions and skill level statements apply to the occupation and not persons working in the occupation. The allocation of a particular occupation to a particular skill level should be seen as indicative only and should not be used prescriptively.

The definitional material describing each occupation is intended primarily as an aid to interpreting occupation statistics classified to ANZSCO. The descriptions are, therefore, only a guide to the tasks undertaken and skills involved in various occupations and are not a definitive statement of what is required.

Another relevant argument is set out in an old Federal Court decision of Singh & Salindera v MIEA [1993] FCA 451; (1993) 44 FCR 495 (10.9.993). Here an Indian dancer was employed on a full-time basis but the time spent in performance at a theme park was about two or three short performances daily. The Court held nevertheless that the position was for a highly skilled person even though the skill was used for a short part of the day.  Here is the Court’s reasoning:

 

It is not necessary to show that the person will exercise the high skill associated with the formal training and experience during the whole working day. There are many occupations in which a highly skilled person spends a good deal of time doing routine work that a lesser skilled person could carry out equally well; but where it is essential to have a particular form of training in order to meet the exigencies of the job as they occur from time to time, perhaps only for a relatively small portion of the time. If it is necessary for the person to have the requisite skills in order to occupy the position, this is enough to satisfy the regulation. It is not necessary to show that the skills are called upon for a major proportion of the working day.

 

  1. Provided that it is found that the position is one where the necessary skill is required, it does not matter that a particular employee may have proved competent to do other work not requiring the specified high skill and may spend a good deal of his/her time on that work. The regulation is intended to look at the matter from the employer’s point of view. It envisages an employer who has a vacancy for a position requiring the possession of a particular skill. The questions then are whether or not the particular applicant was employed in that position because of his/her high skill; and, if so, whether he/she uses the skill in that position. If the answers to these questions are in the affirmative, it does not matter that the skill is only used during part of the working day.[11]

 

In addition to including any business requisite tasks that fall outside of the ANZSCO, the writer also recommends that position descriptions include a catch-all provision along the lines of: “Duties incidental to and ancillary to the above depending on the exigencies of the work requirements”. The catch-all provision is intended to capture incidental or ancillary duties that may arise from time to time as part of the performance of a position but are not included in a position description.

 

To further illustrate, a legal practitioner may undertake photocopying in the course of their duties. The task of photocopying may not be included in the legal practitioner’s position description. The catch-all provision would therefore cover incidents where the legal practitioner is required to undertake photocopying in the course of performing his/her role.

 

It is however worth noting that, in contrast, the Procedures Advice Manual (PAM3) provides the following policy instruction to Departmental officers regarding Reg 2.72(10)(e):

 

“…further assessment involves comparing the tasks of the nominated position as detailed in the nomination application and duty statement/position description against the tasks for that or similar occupations in the ANZSCO dictionary. Officers should be wary of giving undue weight to the job title provided by the sponsor in the application.

Officers need to be careful they do not over-assess the nominated position based on skilled work that will only rarely or occasionally be performed. This could occur if the functions of the position are of a lower skill level but involve the occasional performance of tasks of a higher skill level; three examples are the occupations of:

  • Retail Assistant with some elements of the functions of Customer Service Manager
  • Farmhand with some elements of the functions of a Farm Manager and
  • Scaffolder with some elements of the functions of a Project and Program Administrator.”[12]

 

As a final practice point, when determining the most appropriate ANZSCO occupation for a position, one must also consider the prospective 457 employee’s qualifications and experience, particularly with regard to Reg 2.72(10)(e)(iv) and subparagraphs 457.223(4)(da) and (e), and whether the ANZSCO occupation is listed on the specified legislative instrument (legislative instrument F2015L01059 IMMI 15/092). There is no utility in finding the perfect ANZSCO occupation to match a nominated position only to discover that the prospective 457 employee does not have the skills, qualifications or employment background for the ANZSCO occupation or the ANZSCO occupation is not listed on the specified legislative instrument.

 

Generally one should avoid using an managerial position if an alternative non-managerial occupation would be suitable. Rather than Sales and Marketing Manager one should consider Marketing Specialist. The ‘manager’ envisages one is supervising staff and supervising and directing an element of segment of the business. The Tribunal has recognised from time that any particular business may be top heavy and this is not a disqualifying factor. See Sebastian 1114404 [2013] MRTA 1623 (10 July 2013) and note this very useful comment:

  • The Tribunal acknowledges that the nominating business is small, and can in many respects be characterised as “top-heavy”. However, the Tribunal does not consider the lack of staff underneath the applicant’s direction and management to undermine the claim that the applicant otherwise performs tasks and duties directly within the definition of Customer Service Manager. In this regard the Tribunal gives weight to the responsibilities in the role articulated by the nominator in his letter reproduced under paragraph 26 above. The Tribunal considers that the duties as described are integral to the nature of the nominator’s business.

[1] Australian Bureau of Statistics, 12220.0 – Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2, Contents – Introduction(2013) <http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/1220.0Chapter22013,%20Version%201.2>

[2] Department of Immigration and Border Protection, PAM3: Div 1.2/reg1.03 – ANZSCO (2016) <https://legend.online.immi.gov.au/Migration/2016/16-02-2016/legend_current_mp/Pages/_document00002/ _level%20100019/level%20200144.aspx#JD_103-ANZSCO>

[3] Migration Regulations 1994 (Cth) reg 2.72(8A)

[4] Department of Immigration and Border Protection, Temporary Work Skilled Visa – Nomination (457) (2016) <http://online.immi.gov.au>

[5] Australian Bureau of Statistics, 12220.0 – Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2, Contents – Introduction – Coding Occupation Information (2013) <http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/1220.0Chapter22013,%20Version%201.2>

[6] Migration Regulations 1994 (Cth) reg 2.72(10)(e)

[7] Department of Immigration and Border Protection, PAM3: Sch2Visa457 Temporary Work (Skilled) – Nominations and visa applications (2016) <https://legend.online.immi.gov.au/Migration/2016/16-02-2016/legend_current_mp/Pages/_document00003/level%20100176.aspx?searchstring=(%22457%22)#Genuineposition>

[8] Australian Bureau of Statistics, 12220.0 – Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2, Contents – Conceptual Basis of ANZSCO (2013) <http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/1220.0Chapter32013,%20Version%201.2>

[9] Australian Bureau of Statistics, 12220.0 – Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2, Contents, Major Group 2 Professionals, Sub-Major Group 27 Legal, Social and Welfare Professionals, Minor Group 271 Legal Professionals, Unit Group 2712 Judicial and Other Legal Professionals (2013) <http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4A75F516516A69FACA257B9500131122?opendocument>

[10] 1405700 (Migration) [2015] AATA 3066 (10 July 2015)

[11] Singh & Salindera v MIEA [1993] FCA 451; (1993) 44 FCR 495

[12] Department of Immigration and Border Protection, PAM3: Sch2Visa457 Temporary Work (Skilled) – Nominations and visa applications (2016) <https://legend.online.immi.gov.au/Migration/2016/16-02-2016/legend_current_mp/Pages/_document00003/level%20100176.aspx?searchstring=(%22457%22)#Genuineposition>

Barbara Davidson