Using the ANZSCO, friend or Foe? A question of balance

Using the ANZSCO, friend or Foe? A question of balance
By Lorenzo Boccabella, BA, LLB, a specialist in migration law (25 January 2021)

The linking up of an occupation to the employer’s job offer can come a cropper through a bad application of the ANZSCO task list. Doing a ‘copy & paste’ from the ANZSCO would probably lead to visa AND nomination refusal. But straying too far away from the ANZSCO list of tasks and Immigration may say the tasks don’t match what is in the ANZSCO!. The ANZSCO causes similar problems with skill assessing authorities.

Reg 2.73, part of the nomination process for the subclass 482 visa says:

“Additional requirements in relation to Short-term stream and Medium-term stream

(14) the [nominating employer] must certify as part of the nomination, in writing:

(a) that the tasks of the position include a significant majority of the tasks specified for the occupation in:

(i) ANZSCO;

(b) that the qualifications and experience of the nominee are commensurate with the qualifications and experience specified for the occupation in:

(i) ANZSCO;

The word ‘significant’ does not sit well in all of this. The Macquarie Dictionary defines ‘significant’ as:

1. important; of consequence.

The use of the word ‘majority’ means that not all tasks set out in the ANZSCO must be in the nominated position. Some use can be made of the ANZSCO itself. At the start of the ANZSCO, a list of general propositions are laid out (these are worth reading in full). Here are some extracts:

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.

CONCEPT OF OCCUPATION

The categories at the most detailed level of the ANZSCO structure are called 'occupations'. 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.

INTERPRETING ANZSCO OCCUPATION DEFINITIONS

Note that the ANZSCO states that it is a ‘guide’ only and that the ANZSCO should not be used “prescriptively”.

So for example let’s look at a neutral occupation like a ‘horse trainer’ (361112) where the ANZSCO states:

“361112 HORSE TRAINER

Prepares horses for riding, breeding, racing, work, show or competitions. Registration or licensing may be required.”

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Under the general heading of UNIT GROUP 3611 ANIMAL ATTENDANTS AND TRAINERS the tasks set out are:

“Tasks Include:

1. teaching animals to obey verbal and non-verbal commands and addressing behavioural problems

1. training animals to accept riders and pull vehicles

2. training animals to perform in competitions

3. bathing, cutting, combing, blow-drying and styling pets' coats, clipping their nails and cleaning their ears

4. inspecting, preparing, cleaning, disinfecting and maintaining comfortable animal cages and enclosures

5. transporting food, filling water troughs and feeding animals according to their individual needs

6. maintaining animal health records, treating minor injuries and reporting serious conditions to Veterinarians

7. exercising and playing with animals, answering visitor questions, and transferring animals between enclosures by leading or carrying them

8. dusting and spraying insecticides on animals and immersing them in insecticide baths, to control insect pests”

Clearly some care is required to ‘certify as part of the nomination, in writing:

(a) that the tasks of the position include a significant majority of the tasks specified for the occupation”

Usually a ‘horse trainer’ would not ‘prepares horses’ for all aspects of “riding, breeding, racing, work, show or competitions”. Clearly the actual job would limit which of these activities are to be excluded.

Activities involving ‘training’ horses is essential to this task. A horse trainer may not do tasks 4, 5, 6 and 9 although he or she may do a truncated version of some of those things. What tasks are done must be related to the actual job in question. There should NOT be a ‘cut and paste’ but a description of the tasks as relevant to the actual job and in this process, one would weave in what the employer does and even weaving in the geographic location which may be relevant (like managing excessive heat in a horse if the occupation is located in subtropical or tropical area). Even pick something not in the ANZSCO, like managing the swimming regime of a horse where that is part of the job.

One should also not be squeamish about weaving in the above extracts of general guidance from the ANZSCO itself, in any submissions to a delegate or the tribunal.

The aim is to make the ANZSCO a ‘friend’. One needs to balance the specific tasks set out in the ANZSCO with the exact nature of the job to be undertaken. One should never be afraid to leave out tasks set out in the ANZSCO which are not relevant to the particular job as long as the employer is able to certify as part of the nomination… that the tasks of the position include a significant majority of the tasks specified for the occupation in [the] ANZSCO!

Look at the Federal Court’s decision in Mora to see how the courts treat the ANZSCO.

Divya AggarwalJanuary 25, 2021