457 Visa replaced by Subclass 482 Temporary Skill Shortage (TSS) Visa

From March 2018, the Australian Government introduced a new work visa in replacement of the 457 visa. (<=== click here to go to the Government site)

The Subclass 482 Temporary Skill Shortage (TSS) visa.  The TSS visa is a temporary visa which permits the holder to live in Australia, while working full-time for the sponsoring employer, in the nominated position.  Applicants for a TSS visa may include dependent family members in their application.

This update provides general information in relation to the three steps to the application process to sponsor a skilled overseas worker for a TSS visa.  The three steps are:  

·    SBS - Standard Business Sponsorship- the business must become approved as a standard business sponsor

·    Nomination- the business must nominate the position to be filled

·    VisaApplication- the skilled overseas worker must apply for a TSS (Subclass 482) visa

Step 1 - Sponsorship

To become a standard business sponsor, a business must demonstrate that it satisfies the sponsorship criteria, including its ability to comply with the sponsorship obligations in relation to the skilled overseas workers it intends to sponsor.  If the business has previously been a standard business sponsor, it must also demonstrate that it has complied with all sponsorship obligations during the previous sponsorship period.  Detailed information about the sponsorship obligations is available on the DHA website. Criteria for business sponsors include: 

·    It is a legally established business.  To satisfy the requirement, the sponsor must provide registration details such as ABN and/or ACN certificates, business name registration, ASIC company extracts and information on directors and shareholders. 

·    It is an actively operating business (even if only for a short period of time).  The sponsor must provide documents such as recent financial reports, tax returns, business activity statements, bank account statements and/or a detailed business plan (if a newly established business). 

·    It has a good record of or a demonstrated commitment to, training and employing Australian citizens and/or permanent residents.  Information must be provided on the number of Australian and foreign employees and payroll expenditure. 

·    It does not engage in discriminatory recruitment practices. 

·    It has not been subject to relevant adverse information.  This includes information that the sponsor has previously contravened a law or is under investigation or subject to a disciplinary action or legal proceedings in relation to such a contravention or that the business is subject to an administrative action. 

A sponsorship approval is valid for 5 years.  During this time, an approved sponsor may nominate as many overseas skilled workers as the business requires to fill certain positions in its organisation.  

Note: Businesses who currently hold a standard business sponsorship in relation to Subclass 457 visa holders will be able to continue to nominate skilled overseas workers for a TSS visa until the existing sponsorship approval expires.  

 

Step 2 - Nomination

Following the SBS application, an employer must nominate a position within their business as one which requires to be filled by an overseas citizen.  As part of this step, there are various requirements to be met.  Examples of the requirements are: 

The Occupation

Only occupations listed on the Medium and Long-term Strategic List (MLTSSL) and the Short-Term Skilled Occupation List (STSOL) are eligible for this visa.  The nominated occupation will determine the stream of the related visa application. Depending on the visa stream, different requirements must be satisfied.  You will find more information on these visa streams below in this Update.

Some of the occupations have inapplicability conditions placed on them which must be satisfied in addition to the other requirements.  The conditions may relate to work experience, minimum salary or the business.  The business must also advise the skills and/or work experience required for the position.  The minimum skill level required for the position (such as a specific degree/qualification and/or relevant work experience) depends on the occupation. 

DHA will review the STSOL and MLTSSL every six months which means that occupations which previously were eligible, may be moved from the MLTSSL to the STSOL or removed entirely.

The Employment

The skilled worker must be employed directly by the sponsor or by an associated entity of the sponsor.  This usually involves responsibility for payment of salaries, PAYG tax instalments and superannuation and the day-to-day supervision of the skilled worker.  If the skilled worker is employed by an associated entity, the sponsor will still retain ultimate responsibility including ensuring that all employment benefits are paid.  The overseas worker must be employed under a written employment contract signed by both the employer and the employee.  The position must be full time.  

Salary Level

The business must provide equivalent employment terms and conditions to what an Australian employee would receive.  This includes that the sponsor (or the associated entity) must pay the overseas worker the annual market salary rate (“AMSR”) which is appropriate for the location and industry of the nominated occupation.  This is to ensure that skilled overseas workers are not used to undercut local employment conditions and wages.  The business must provide information on how the AMSR was determined and demonstrate that the overseas worker will not be paid less than this amount.  Some occupations have a salary based condition placed on them. Exceptions do apply to this rule, for example: the obligation to pay market salary rates does not apply to sponsored persons who are being remunerated above the high income threshold (currently $250,000 per annum).

The Position

The sponsor must demonstrate that the position is genuine and consistent with the nature of the business, that the tasks of the position correspond to the tasks of an eligible occupation and that the position was not specifically created to gain a visa.  The business must provide a brief description of the nature of the business and the position, an organisational chart and evidence that the position has previously existed or, if the position has been newly created, evidence of an increase in business or new contracts secured by the business. 

Labour Market Testing

Labour market testing (LMT) requires a business to demonstrate that it has attempted to recruit an Australian citizen or permanent resident prior to nominating a foreign worker.  

LMT must be undertaken within the previous 6 month prior to lodging a nomination application or 4 months if an Australian employee has been retrenched or made redundant in the nominated position. This entails that a business must advertise the position (outlining the position details, the name of the sponsor and the annual earnings) on at least two suitable national recruitment websites (not including social media websites such as LinkedIn) or printed media in Australia in English for at least 21 days.  The business must demonstrate that there is not suitable qualified and experienced Australian citizen or permanent resident readily available to fill the nominated position.  Evidence to be provided includes copies of the advertisements and receipts for fees paid. 

LMT is not required where it would conflict with Australia’s international trade obligation.  This includes the following circumstances: 

·    The nominated skilled worker is a citizen or national of China, Japan or Thailand, or is a citizen, national or permanent resident of Chile, South Korea, Singapore or New Zealand. 

·    The nominated skilled worker is a current employee of an associated entity of the sponsor that is located in Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, Vietnam, Chile, China, Japan, South Korea or New Zealand. 

·    The nominated skilled worker is a current employee of an associated entity of the sponsor that operates in a country that is a member of the World Trade Organisation (WTO) and the nominated occupation is an “Executive or Senior Manager” occupation and the nominee will be responsible for the entire or a substantial part of your company’s operations in Australia.

·    The sponsor’s business currently operates in a WTO member country and is seeking to establish a business in Australia and the nominated occupation is an “Executive or Senior Manager” occupation. 

·    The nominated skilled worker is a citizen of a WTO member country and has worked for the sponsor in the nominated position in Australia on a full-time basis for the last two years. 

Skilling Australia Fund– Training Levy

It has been proposed that businesses pay a contribution to the Skilling Australians Fund (SAF) at the time of the lodgement of the nomination application.  Please note that this requirement is still subject to legislation being passed by the Australian Senate.  

Businesses with an annual turnover of less than $10 million per year will be required to make an upfront payment of $1,200.00 per nominated visa year.  Businesses with an annual turnover of more than $10 million per year will be required to make an upfront payment of $1,800.00 per nominated visa year. 

There will be no refund of the levy if the visa holder leaves the sponsor before the expiry of the visa.

Collection of Tax File Numbers

It is proposed that DHA may collect TFNs of TSS visa holders for data matching with the Australian Taxation Office to ensure that visa holders are paid at least their nominated salary.  Please note that this also is still subject to legislation being passed by the Australian Parliament.

 

Step 3 - Visa Application

Step three of the process is the visa application itself, at which time the nominees must demonstrate that they meet the requisite skill level for their occupation, as well as health and character requirements.  The two visa streams available under the TSS program are: 

Short-term stream

Short-Term Skilled Occupation List (STSOL)

If the occupation is on the STSOL, the applicant may apply under the short-term stream.  A visa may be granted for up to 2 years(or 4 years, if an international trade obligation applies). At the end of the first 2 years, the visa may be extended only once onshore for a further 2 years period. Subsequent TSS visas may be applied for from overseas.  Please note that the visa holder will notbe eligible for permanent residency. 

Medium-term stream

Medium and Long-term Strategic List (MLTSSL)

If the occupation is on the MLTSSL, the applicant may apply under the medium-term stream.  A visa may be granted for up to 4 years.  The visa may be renewed onshore multiple times.  The visa holder may be eligible for permanent residency after three years of full-time employment with the sponsor.

Skills, Qualifications and Work Experience

The skilled overseas worker must have the skills, qualifications and work experience to match those required for the nominated position.  In addition, all visa applicants are required to have at least 2 years’ full-time work experience (in the previous 5 years) in their nominated occupation.  This means that recent university graduates will not be eligible for a TSS visa. Persons from certain countries may be required to undergo a skills assessment for specific occupations.  

English Language

The visa applicant must provide an English language test satisfying the minimum level of English language proficiency in a test recognised by DHA.  The test must have been completed in the previous 3 years prior to lodgement of the visa application.  Some applicants may be exempt from the language requirements, for example citizens of some English-speaking countries.  

Character and Health

Skilled overseas workers must provide police certificates from each country that they have lived in for 12 months or more during the last 10 years since turning 16 years.  Applicants must provide residence and travel details for the last 10 years.  Depending on the personal circumstances such as country of citizenship and time spent in another country in the last five years, the skilled overseas worker must undergo a health examination by a DHA approved doctor.  

Genuine Temporary Entrant

The skilled overseas worker must be a genuine temporaryentrant.  This will be considered met unless the applicant has a history of holding a number of short term visas.

Family Members

Skilled overseas workers may bring their immediate family members (spouse or de facto partner and dependent children) to Australia. All family members must satisfy the character and health requirement (i.e. provide police certificates and undergo health examinations).  Additional visa application fees will be payable.   Family members are allowed to work and study in Australia. 

Note: Once the TSS visa has been approved, certain conditions apply.

Please note, this information is provided by Schweizer Kobras, as guidance only. It's strongly advised that you seek professional advise and compliance on this topic.