What is Work Experience
There have been many cases over the years about what is work for the purpose of meeting the requirement that the applicant “has been employed in a skilled occupation“. Often the rejections on this point come from site visits, many of which it turns are poorly carried by persons who are not skilled at investigation.
One example is Mavani 071796339  MRTA 817 (4.9.08). The applicant from India nominated the 40 points occupation of Financial Investment Adviser (ASCO 3213-11). A site drew the adverse inference that he was a data entry operator.
At the MRT the applicant produced evidence he held a Bachelor of Management Studies from Mumbai university and gave a complicated but credible explanation for the site visit evidence. Firstly the evidence was that there were 2 firms with similar names in the same building one run by an uncle the other by a grandfather, it was established that the person spoken to in the site was employed in the other firm and therefore would not have know much about the applicant. The applicant basically produced wads of evidence to prove both his skilled occupation and that he worked in it for 12 months. The evidence included further certificate qualifications. Here is how the MRT found for the applicant:
•31. The issue in this case is whether the visa applicant has been employed in the stated occupation as a Financial Investment Adviser (ASCO 3213-11). On the basis of the visit to the office by the departmental officer, the visa applicant was found to be missing, and an employer indicated that the visa applicant worked there but he was the nephew of the proprietor and furthermore that he was responsible for data entry on files and was not a financial adviser. The Tribunal accepts that the employee who gave this information did not work for the business concerned, but worked for another business in the same premises. The Tribunal accepts that this employee was a low level employee, who was not aware of the activities of the visa applicant in using the computer as a tool for financial analysis and planning and surmised that spending so much time on the computer he was simply making data entries. The Tribunal now has the evidence of clients of the firm that the visa applicant is an active participant, and the explanation by the proprietor as to his role and given his high qualifications accepts that the visa applicant has worked as a financial investment adviser, and for the required period. Allowing for a few months in which the visa applicant may have been in a learning role, the Tribunal accepts that the visa applicant has been involved as a financial investment adviser for the relevant period. While the family association could rightly have given reason for suspicion, there are also cultural issues where families with a financial tradition, do endeavour to keep family members involved in the business, so the Tribunal does not treat the fact that the visa applicant is the nephew of the proprietor as any reason for doubting the visa applicant’s role in the business.
Croney 071908806  MRTA 834 (8.9.08) was different case where it was established that the applicant was a cook but that her recent work experience was in pizza shop hence the delegate found she was employed as a Fast Food Cook (ASCO 9932-11) which was not a skilled occupation rather than as Cook ASCO Code 4513-11 which is a skilled occupation. Nevertheless the MRT reviewed the evidence and found for the applicant:
•22. As it is, the Tribunal considers that the.. visa applicant has submitted comprehensive evidence that she meets the ASCO Code requirements for Cook, particularly given her extensive experience as Chef for various hotels in England. While past experience cannot be taken into account in determining whether between 29 March 2006 and 29 March 2007, the first named visa applicant meets the legislative requirements, the Tribunal contends that the past experience cannot be completely overlooked in terms of demonstrating that her skills are commensurate with the ASCO Code as it is clear that the first named visa applicant is not embellishing claims about her current capacities and those at the time of application in terms of Cook.
•23. The delegate found “from the work reference you have provided, and information regarding the nature of the business sourced from the Internet, that the duties you performed in your position with Perfect Pizza most equate to a Fast Food Cook (ASCO 9932-11)”. The Tribunal concedes that on the basis of the initial reference by the Proprietor of Perfect Pizza, it is not unreasonable that the delegate may have come to the conclusion that the first named visa applicant’s occupation was in the preparation of Fast Food. A second more comprehensive reference has now been submitted which identifies in more detail and particularity the specific duties of the first named visa applicant at Perfect Pizza. This reference letter dated 14 November 2007, clearly shows that the first named visa applicant’s duties were varied, including supervising junior staff and the preparation of other food items apart from pizzas. While the Tribunal appreciates, the delegate’s concern, the Tribunal is satisfied that the duties performed by the first named visa applicant at Perfect Pizza were more in the way of general food preparation consistent with the occupation of Cook. The Tribunal finds, therefore, that the detail set out in this reference letter dated 14 November 2007, shows that the applicant was at Perfect Pizza undertaking the following tasks as required by ASCO Code 4513-11: examines food to ensure quality; regulates temperatures of ovens, grills and other cooking equipment; prepares and cooks food seasons food during cooking; portions food, places it in dishes, adds gravies or sauces, and garnishes; stores food in temperature controlled facilities; may plan menus and estimate food requirements; may prepare food to meet special dietary requirements; may train other kitchen staff and apprentices.
The important thing to note about a person being employed in a skilled occupation is that it is not necessary that the person be doing the skilled tasks for the whole time. An example is an old decision of
Singh & Salindera v MIEA  FCA 451; (1993) 117 ALR 687 (1993) 44 FCR 495 (10.9.993). The reasoning below is not about skilled visas as such but is about whether a position to be filled was ‘a position in respect of a highly skilled occupation’. Here an Indian dancer was employed full time 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.
19. 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.
That reasoning could be used in proving the criterion that the applicant “has been employed in a skilled occupation“. As long as the position calls for the skill to be used on sufficiently regular basis that a skilled person is needed then the person is “employed in a skilled occupation” even though he or she may be doing less skilled work in the job for significant periods of time.