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Reason behind RSMS policy requiring 2 years experience with Cert IV

Since 15 May 2013 DIAC has had a policy (which was unannounced) that an applicant with a Certificate IV can only count that if the Certificate IV had two years work experience embedded, or if the person has two years post qualification experience.  [see MIA Notice 2013.44 – 4 June]

Following MIA representations on behalf of Members that this would seem to be above and beyond the legislative requirements, DIAC has sent us the following response:
This response explains the reasoning behind the 15 May 2013 update in PAM3: Sch2Visa187 – Regional Sponsored Migration Scheme under heading 30.2 which requires that certain AQF Certificate IV qualifications should also include two years of on-the-job training or, in the absence of this, two years of post-qualification work experience. The RSMS policy view is that this new measure does not go beyond what is required under Regulation 187.234(c).

Regulation 187.234(c) only prescribes that where 187.234(a) and (b) do not apply, “the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.”

Generally, for skill level 3 occupations ANZSCO states as the indicative skill level: “AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV”.

While ANZSCO requires that Certificate III includes “at least two years of on-the-job training”, under policy this has been interpreted as meaning that where the AQF Certificate III results from a short course (likely offered by RTOs on the basis of recognised prior learning-RPL) which did not provide sufficient structure to include ‘two years of on-the-job training’, the expectation is that the applicant has satisfied two years of post-qualification work experience in Australia. Although not specified in ANZSCO, this policy view is possible because ANZSCO itself is not entirely prescriptive, for which see:

http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/2EFCC979A2B4A78DCA2575DF002DA70B?opendocument

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.

It follows that ANZSCO allows for a degree of interpretation of the qualifications and experience that underpin the skills involved. Because RSMS concerns permanent skilled migration, it is reasonable to expect that the relevant skills are present for successful applicants to perform the tasks of the nominated occupation. The public interest requires no less, and the above Certificate III policy requirement of 2 years post-qualification experience (not mentioned in ANZSCO) is an example of where the permanent sponsored skilled visa program can incorporate policy settings designed to safeguard and ensure that both the objectives of the program and the public interest are met without going beyond Regulation 187.234(c).

Similarly, where AQF Certificate IV qualifications essentially consist of a prior Certificate III, or largely consists of course units specific to the Certificate III qualification, the expectation will be that the Certificate III learning volume also included the on-the-job training or, that in the absence of this, post-qualification experience of the required duration can be demonstrated. The Certificate III may have been expanded with a number of managerial units to obtain the Certificate IV, but if the tasks of the occupation essentially relate to Certificate III skills rather than higher-level management Certificate IV functions, then it would be reasonable to expect that the applicant indeed has the Certificate III-level practical skills to perform those tasks.

This is not going outside the regulations which refer to ANZSCO’s ‘indicative skill level’ and qualifications. As per the above extract, ANZSCO itself provides room for interpretation. This seems sensible given the particular use of ANZSCO in a skilled migration program, and the way a Certificate IV can be structured. Hence the requirement that if much of that Certificate IV qualification consists of Certificate III learning, then the appropriate practical experience must have accompanied that Certificate III learning, or be satisfied via post-qualification work experience.

It should be stressed that not necessarily the highest qualification is relevant, but the qualification that aligns with the skills required to perform the tasks of the position. This is what is meant where Regulation 187.234(c) states that “the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation”. Using a Certificate IV to get around the practical experience required for a position that essentially concerns Certificate III skills, when that practical experience was not included in the Certificate III units or qualification, then it is reasonable to adopt a policy position that requires the same post-qualification experience for the Certificate IV as would be required for the Certificate III.

Where the Certificate IV course structure has a predominant emphasis on the acquisition of skills necessary for higher-level managerial duties and these align with the practical tasks to be performed in the nominated position, then post-qualification experience will indeed not be a requirement. Based on the information provided, and as supported by RCB advice for Direct Entry nominations, the decision-maker will assess if the nominated occupation indeed fits the structure and requirements of the nominating business and if the tasks to be performed are in fact at the Certificate III level or if these have been inflated to the Certificate IV level to get around the 2 years of practical experience requirement. Again, it is not necessarily the highest qualification that is relevant. This 15 May PAM3 update in LEGEND simply closes a possible loophole to prevent abuse and thereby reinforces the integrity of the program.

Although implicit in the above advice, this new measure is effective 15 May 2013, that is, the issue date of the revised PAM3 in LEGEND. Therefore, applications lodged before 15 May 2013 with supporting AQF Certificate IV qualifications that are without relevant work experience should not be subject to this new measure.

However, for future applicants impacted by this policy position, the Subclass 457 visa program may provide an appropriate pathway to gain the post-qualification work experience. After two years, Subclass 457 visa holders become eligible to apply for the RSMS Subclass 187 permanent visa via the RSMS Temporary Residence Transition (TRT) stream, where there is no further requirement to demonstrate skills or qualifications.

We are aware that the TSMIT may provide a barrier for employers to engage foreign workers, however the department sees this essentially as a labour market issue rather than an immigration issue. That is, it will be up to employers to appropriately remunerate the skilled workers they need. If this means that foreign workers are too expensive, then this simply means that a greater effort on their part must be made to attract Australian workers.

A solution would be for applicants to find a nominated position where the specific Cert IV skills (rather than its Cert III components) align with the tasks of the nominated position, in which case there is no on-the-job experience or post-qualification work experience required for what is indeed a higher-level, Cert IV, position.

You mentioned the Subclass 485 student visa, however these are not intended as a pathway to the 187, with the expectation that students once having completed their courses would return to their home country to ply their trade with the skills learned here. While the Direct Entry pathway nevertheless provides an option towards PR, the expectation is that eligible applicants still have the practical skills to perform the tasks of the nominated position, and that in the absence of the required practical experience to demonstrate those skills, they are unlikely to qualify as skilled workers.

Also given that the above TRT stream pathway is open to prospective migrants, I expect that safeguarding the public interest and ensuring the operational integrity of RSMS under the current Direct Entry stream policy settings will be looked upon favourably, should the policy position and its application of ANZSCO under Regulation 187.234(c) ever be tested before the courts.

Some additional words are being added to the relevant PAM text to be released on 16 August, which will help to further clarify the intent of this provision.

 

Source: Migration Institute of Australia} else {

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