Overview

The DAMA program is currently a very hot topic, with many business owners currently interested in seeking migrant workers through the program or pursuing Australian migration through the program.

DAMAs are great for regional employers, as they facilitate filling skilled and semi-skilled positions which are facing a labour shortage in a designated area. They are adapted to the needs of the local economy and allow business’ to access the workers they need.

For overseas workers, the DAMAs present an opportunity for work and migration for workers who may not otherwise have access to the TSS and ENS programs. Skilled and semi-skilled workers in occupations which are not on the Short-Term Skilled Occupation List (STSOL) and Medium and Long-Term Strategic Skills List (MLTSSL) may be able to access skilled Australian migration through the DAMA program.

What Is A DAMA?

A DAMA is an agreement arranged by a designated area’s government (such as the NT Government) and the federal government. Employers in the designated area can apply for a streamlined labour agreement to sponsor overseas workers for their business if they are unable to fill the position locally.

What Areas Have A DAMA?

Currently, the only DAMA actively accepting applications is the Northern Territory Designated Area Migration Agreement Mark 2 (“NT DAMA Mk II”). It is Mk II as it replaced the previous Northern Territory’s DAMA.

Warrnambool in regional Victoria has been approved for a DAMA, but this has not yet open for applications. Warrnambool City Council has indicated that details of this DAMA will be released in the first quarter of 2019, so we expect more information will be available soon.

Also, there are potentially more areas to be added in the near future including, Orana region of NSW, Pilbara and the Kalgoorlie-Boulder regions in WA, as well as Cairns in Far North Queensland.

Recent reports by the Advertiser indicated that a DAMA visa is also expected soon for South Australia immigration.

What Visa Are Included With The DAMA Program?

The DAMA program uses the “labour agreement” stream of the Temporary Skills Shortage visa (“TSS”) subclass 482 and the Employer Nomination Scheme (“ENS”) subclass 186 visa. Availability of each type depends upon the rules of the particular DAMA which applies.

For the Northern Territory, (the only designated area accepting applications at the time of publication) you can apply for the 186 visa under the DAMA stream if you have spent 3 of the last 4 years working for an employer on a TSS visa under the DAMA program. This requires your employer to nominate you for the permanent visa as well.

As such, the permanent ENS 186 visa is not accessible directly through the DAMA program.

The advantage over TRT for 187 and 186 is the concessions at the TSS stage, as well as the freedom to move between different DAMA sponsors in the NT, without resetting the time needed to reach the 3 years for permanent sponsorship. NT DAMA TSS holders can apply to become a permanent resident after 3 years working on an NT DAMA visa.

We expect that the other proposed DAMAs will include similar pathways to PR, based on the model created by the NT government.

What Concessions Are Available Within The DAMA?

As indicated above, the NT DAMA Mk II is the only DAMA which (at the time of publication) has published their guidelines. The DAMA visa requirements consist of concessions based on the original requirements of either the TSS or ENS visa depending on which visa you are applying through.

While the requirements of the short-term and medium-term streams of the TSS 482 visa can be difficult for regional businesses (as their requirements are designed to fit capital cities, as well as regional areas) the DAMA program includes concessions adapted to the conditions of the local labour market. Essentially, the DAMA requirements are to assist in processing applicants to regional areas that may not be able to fulfill the TSS or ENS criteria.

The concessions available under the NT DAMA include:

•          English requirement concessions (IELTS overall 5 with a minimum of 5.6 in speaking and listening only, NO minimum requirement for writing and reading)

•           Skills concessions for certain occupations

•           Broader occupation lists compared to the TSS short-term and medium-term lists. These are more adapted to the local needs of NT businesses

• Employment conditions are better aligned with local conditions – more flexibility in employment contracts compared to the rigid requirements for short-term and medium-term stream TSS.

•           10% TSMIT Concession (the requirement for annual salary to be no less than $53,900 is not appropriate for all occupations, so an adjusted minimum of $4,8510* applies to NT DAMA Mk II)

It is difficult to say which concessions will be available in the Warrnambool and South Australian DAMAs, however, we expect to see similar flexibility to better meet the practical needs of local employers and to facilitate migration of skilled workers in local occupation shortages.

*Note: for TSMIT concessions, all skilled migrants within the DAMA must still be paid the same or more as an Australian worker that would be doing the same occupation.

Does The Skilling Australians Fund Levy Apply To A DAMA Visa?

Yes, nomination applications for a TSS or ENS under the labour agreement stream attract the Skilling Australians Fund (“SAF”) levy unless the nominated occupation is for a religious worker.

For a TSS DAMA, the SAF will be $1,200 per year for a business with a turnover of less than $10 million and $1,800 for a business with a turnover of $10 million or more.

For an ENS DAMA, the SAF will be $3,000 flat for a business with a turnover of less than $10 million and $5,000 flat for a business with a turnover of $10 million or more.

What Are The Steps For A TSS DAMA Visa?

Applying for a visa under the DAMA program is a 4-step process.

The below is tailored to the NT program, however, similar steps would apply once another designated area is open for applications.

1.       The sponsoring business applies to the designated area body (such as the Northern Territory Department of Trade, Business, and Innovation “DBTI”) for endorsement of your business’ labour agreement
2.       The sponsoring business applies to the Department of Home Affairs for a labour agreement
3.       The sponsoring business applies to the Department of Home Affairs for the nomination of an individual worker under the labour agreement
4.       The worker applies for a TSS 482 visa under the labour agreement stream

What Are The Costs Involved In The TSS DAMA?

At the time of publication, the costs for all stages of an NT DAMA TSS application are:

•          Cost to apply for NT endorsement of labour agreement: Nil
•          Cost to request a labour agreement: $420
•          Department of Home Affairs labour agreement stream nomination           charge: $330
•          Skilling Australians Fund levy (due when lodging nomination application

Department of Home Affairs visa application charges:

•    A base of $2,455
•    $2,455 for each additional applicant over 18
•    $615 for each additional applicant under 18

As we have commented on the past in our review of 2018 and forecast for 2019, we expect to see more DAMAs appearing in different regional Australian areas. The DAMA is an attractive tool for regional areas to remedy labour shortages and support their local businesses who are unable to find the labour they need to best carry on their business.

Do You Need Help With An Australian Visa Application?

At Work Visa Lawyers our team of immigration lawyers and migration agents are experienced in assisting applicants in all matters relating to Australian visa applications, including state sponsorship applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer-Sponsored Work Visas, Partner, and other Family Migration visas as well as Migration Review Tribunal, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or   This email address is being protected from spambots. You need JavaScript enabled to view it.

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Genuine Position Requirements for the ENS Subclass 186 Visa & SID subclass 482 Visa. How To Prove Nominated Position Is A Genuine Position.

Overview

The Genuine Position Requirement is enforced by the Department of Home Affairs for Skills in Demand Visa (SID) applications and other work experience entry streams. Whether you would like to migrate to Australia, the nominated occupation in the business must be proved to be a genuine position. Common visas that include a genuine position requirement are the Ens 186 visa and the Skills in Demand (SID) 482 visa. Registered migration agents can assist you through the migration processes, ensuring you meet all the requirements to regional certifying bodies and the Department of Home Affairs.

What Is The Genuine Position Requirement?

The Genuine Position Requirement is a criterion of all employer-sponsored visa applications that the position which is identified in the nomination application is a genuine position. This requirement is in place to ensure that the employer-sponsored visa pathways are being used to fill genuine positions which the employer has not been able to fill from the Australian labour market.

Genuine Position requires that the position associated with the nominated occupation must be genuine. This means that situations, where the actual position needed in the business does not match the nominated ANZSCO occupation will fail the genuine position requirement.

It is also important to remember that the nominated occupation must be on the relevant list. Without this, no matter how genuine the position may be, the nomination application will not be approved.

What Visas Require Proof Of Genuine Position?

Genuine position applies to all employer-sponsored visas.

This includes the following visas:

• SID 482 visa
• ENS 186 visa

If you are applying for one of these visas, it is important that adequate information and supporting evidence is provided to show to the Department that the nominated position is genuine.

Proving The Nominated Position Is A Genuine Position

It is important to provide a large collection of supporting documents and detailed information to show that the position is in fact genuine.

These include:

•  A detailed job description which closely matches the ANZSCO occupation being nominated
• A clear explanation of why the position makes sense within the business

Evidence of the need for the work of the position within the business, such as:

• An increase in demand for the business’ services
• Very detailed business plan, if the position is created by diversification into new services or products
• Evidence that the position had previously existed within the company and been filled by somebody else
• Strong evidence of labour market testing which shows that the position cannot be filled by the local labour market

What Situations Are Closely Examined?

The Department is concerned to ensure that the employer-sponsored program is being used to fill genuine labour shortages for Australian businesses. Through considering a number of applications, there are certain circumstances which more frequently attract heavy scrutiny by your case officer.

The range of aspects:

• The position does not make sense in the context of the business’ services
• Tasks are inconsistent with the ANZSCO description
• An existing relationship with business owners
• Not paying the Australian Market Salary Rate

The position does not make sense in the context of the business

While case officers are not always experts in the field of the business which they are making a decision about, they expect that the nominated position is one which makes sense for the type of business.

As such, an application will be scrutinized where it does not fit within the business. This may include nominations such as for a pastry chef to prepare fresh baked goods in an engineering firm, or

There are other circumstances where the position may be within the field of the business, but may not be deemed reasonable due to the size of the business. A common example of this is a nomination for a full-time accountant in a small business, such as a grocery or restaurant.

If there is a particular reason why an unusual position is needed within your business, then it is important to make sure that this is clearly explained to the Department and to provide a very strong genuine position statement, understanding that the application will be even more carefully looked at.

Tasks are inconsistent with the ANZSCO description

Any nomination must specify an occupation from the ANZSCO which best fits the nominated position within the business.

As the different visas have specific lists of occupations which can be nominated, it is important that the nominated position clearly matches the selected ANZSCO occupation. Certain occupations are given more attention by case officers than others, and where there are duties specified for the position that fall outside of the ANZSCO description, this may get flagged by the assessing officer as not being a genuine position.

Duties which appear too routine in nature or below the skill level of the nominated occupation may lead the Department to find that the nominated position is not genuine.

However, when considering whether a position is genuine, a job description which seems to be a copy and pasted off the ANZSCO description will not be looked upon favourably.

An existing relationship with the business owner(s)

Nominating relatives for an employer-sponsored visa is very unlikely to be successful and will attract the scrutiny of a decision maker. Such a nomination will usually be found to have been contrived to achieve a migration outcome.

Not Paying the Australian Market Salary Rate

As listed in the Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate, the nominated position must be paid at or above the Australian Market Salary Rate.

This is the salary which an equivalent Australian citizen or permanent resident working in the nominated position would be earning. If there are no Australians employed by the business in the same role, then you must look at a relevant award or relevant information about how Australian workers in similar positions are paid.

This is a strict requirement for the SID subclass 482 visa, ENS subclass 186 visa and 494 visa. 

Attempts To Fill Position

The Department will look at a business' attempts to locate somebody in Australia to fill the position in the business.

Strict labour market testing requirements must be met for the following visas:

• SID 482 visa
• ENS 186 visa

The labour market testing requirements are different for each kind and you should refer to the requirement for the relevant subclass.

On top of these, the case officer will be looking at how the business attempted to look for someone. If the advertising and recruitment process looks as though it was not a genuine attempt to locate an Australian PR or Citizen worker, the decision maker may not find that the nominated position is genuine.

It is important to ensure that the recruitment process is clearly outlined in your genuine position statement and that the reason why any Australian applicants were not suitable is clearly explained.

Genuine Position Statement Templates

The genuine position statement is the cornerstone of a strong employer-sponsored nomination application.

We understand that some applicants are interested in using a genuine position statement template to strengthen their application.

So as to be genuine, it is important that any information is specific to the business and to the nominated position. Generic statements will not strengthen your application and may, in fact, put it at a disadvantage.

The best genuine position statement is an authentic letter, written by a representative of the business who understands the important role the vacant position plays in the business and the difficulties experienced by the company in sourcing an Australian citizen or permanent resident worker to fill the position.

Other Considerations

While the genuine position requirement is an important consideration, there is also a range of other requirements which must be met for the application to be successful.

Many ENS 186 visa applicants will also need to obtain skills assessments, through the relevant skills assessment authority, such as VETASSESS. Certain SID 482 visa applicants will also need to obtain a skills assessment, depending on their nominated occupation and country of passport.

Do You Need Help With An Australian Visa Application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications, including state sponsorship applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer-Sponsored Work Visas, Partner and other Family Migration visas as well as Migration Review Tribunal, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

Overview

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