Actively and Lawfully Operating a Business: 186 Nomination Requirements

For TRT and Direct Entry nominations, the employer must be actively and lawfully operating a business in Australia. All nominators must also have a satisfactory record of complying with workplace laws. Here is how the Department assesses both.

Lawful operation: the registrations

Entity	What officers check
Sole trader	ABN, and business name registration if one is used
Partnership	ABN, any trust deed for a partner trading through a trust, and business name
Company	ABN (a trustee company may not have its own), ACN or ARBN, and business name
Incorporated association	ABN and certificate of incorporation
Trust	The trustee nominates. A trust itself cannot nominate because it is not a legal person

Business names trip up many nominations. A business name must be registered to the nominating entity. Trading under an unregistered name, or one owned by another entity, means the lawful operation requirement is not met and the nomination cannot be approved. Read more about business structures in ENS nominations.

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Active operation: the evidence

A shelf company fails the test. The business must have its registrations in place, the infrastructure set up and be providing goods or services. Large established businesses need little evidence, but businesses trading for less than 12 months, and small businesses new to the Department, need extensive and recent documents, such as:

• profit and loss statements, balance sheets, tax returns and BAS;
• bank statements showing business transactions;
• leases, premises photos, contracts with customers and advertising;
• payroll records and payments to staff or contractors.

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The TRT shortcut

For TRT nominations, this requirement is generally met if the employer holds an active standard business sponsorship and its ABN is still registered. Officers only look further if there are concerns. An overseas business sponsor cannot use the TRT stream because it is not operating a business in Australia. It would need an Australian entity to become a sponsor and nominate the worker first.

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Compliance with workplace laws

Every nominator must have a satisfactory record of complying with Commonwealth, state and territory workplace laws. This is treated as met unless the Department has contrary information, for example from the Fair Work Ombudsman or its own sponsor monitoring findings, such as underpayment of sponsored workers. As a general guide, problems 3 or more years ago may be accepted if the employer has fixed its practices since.

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What you should do now

• Check registrations: confirm the ABN, ACN and every business name you trade under are registered to the nominating entity.
• Trusts: make sure the trustee is the nominator, and lodge a new nomination if the trustee changes.
• Gather recent financials: new or small businesses should provide recent BAS, bank statements and contracts.
• Past compliance issues: be ready to show what has changed since any workplace law problem.