The Department has traditionally used the word ‘caveat’ to refer to a restriction placed on a particular occupation that remains on the list of eligible skilled occupations – with, for example, Cooks, Chefs and Café and Restaurant Managers subject to a ‘fast food’ caveat for a number of years. The word ‘caveat’ has never, however, been specifically referenced in the relevant legislative instrument which uses a note or asterix (*) to indicate that a restriction applied in the case of a particular occupation.
From the new 1 July 2017 instruments listing eligible occupations for the subclass 457 and Employer Nomination Scheme (ENS) presents such caveats are in the form of ‘inapplicability conditions’. Inapplicability conditions serve the same function. To avoid confusion during this significant time of change, departmental guidelines continue to refer to caveats. Caveats’ and ‘inapplicability conditions’ are considered equivalent expressions.
Are there exemptions to caveats?
Exceptions cannot be made to the caveats imposed on occupations. This is because these caveats are included in a legislative instrument – that is, they are not policy only.
For example, where the caveat requires a base salary of $65,000, nomination and/or related visa applications cannot be approved where a lower salary is being offered to the nominee.
Under policy, where a turnover or employee number related caveat applies to a particular occupation, Departmental officers may take into consideration broader circumstances when assessing these caveats, if the following characteristics are met:
- there is an overseas business that is starting up a business in Australia [regardless of whether using Overseas Business Sponsor (OBS) provisions or not];
- the actual business sponsor does not meet the turnover and/or employee caveats in their own right, but does meet any other caveats that apply (e.g. base salary);
- the overseas “parent company” would meet the turnover/employee caveats; and
- the sponsor has demonstrated that there are special circumstances which warrant a flexible approach – e.g. project of particular importance to Australia, economic benefit to Australia, supports innovation agenda, parent company has a long history of successful business operations, support through state/territory/government.