Category: Standard business sponsorship

Can an Overseas Company Sponsor Employees to Work in Australia?

Posted by Rebecca Berkovic on February 28, 2024

We have arranged for overseas companies to sponsor employees to work in Australia on numerous occasions through the Temporary Skill Shortage (TSS)(subclass 482) visa program, even if the company does not yet have operations in Australia.

An overseas company is able to sponsor employees to work in Australia in the following circumstances:

Where the employee will establish, or assist in establishing, on the sponsor’s behalf a business operation in Australia with overseas connections; or
Where the employee is required to fulfil contractual obligations for the business in Australia.

Enabling global and offshore businesses to sponsor overseas employees has provided clients with a huge benefit in establishing their business in Australia or meeting contractual obligations by sending staff to Australia who are highly skilled and already familiar with the business.

For advice regarding Australian visas and sponsoring skilled overseas workers, please do not hesitate to contact us at info@hartmanimmigration.com.au for Australian immigration assistance.

Disclaimer:

The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.

Proposed Bill to Entitle Workers in Australia to the ‘Right to Disconnect’

Posted by Rebecca Berkovic on February 8, 2024

For our clients sponsoring overseas employees to work in Australia, it is relevant to note that the Australian Federal Government announced that it will introduce laws giving workers the ‘right to disconnect’ under the Fair Work Amendment (Right to Disconnect) Bill 2023.

Specifically, the laws will provide workers with the right to ignore engaging in ‘work activities’ outside of work hours without facing a penalty, unless the reason for the contact is an emergency or genuine welfare matter or the employee is in receipt of an availability allowance for the period during which the contact is made. Under the legislation, work activities which employees can ignore outside regular work hours include monitoring, reading or responding to emails, telephone calls or any other kind of communication from an employer.

It has also been announced that potential fines will apply to employers penalising workers for exercising the right to reasonably disconnect.

The new law is similar to the French labour law which commenced in 2017 attempting to preserve a ‘right to disconnect’ for employees.

If it passes, the ‘right to disconnect’ bill will apply to overseas workers as well as Australian employees.

Disclaimer:

Australian Temporary Skill Shortage (TSS) (Subclass 482) Visa Set to be Replaced by the ‘Skills in Demand’ Visa

Posted by Rebecca Berkovic on January 9, 2024

As we welcome in the new year, it is expected that further Australian visa changes will be introduced by the Federal Government in 2024 in the wake of the December 2023 Migration Review. A major change proposed by the Australian Government is to replace the current Temporary Skill Shortage (TSS)(subclass 482) work visa with the ‘Skills in Demand’ visa.

Summary of the Skills in Demand Visa

The Skills in Demand visa is a proposed four-year temporary Australian work visa with three different visa streams targeting various skill levels and industries. The new visa is intended to offer pathways for all visa holders to apply for Australian permanent residency.

The Minister for Immigration, Clare O’Neil, stated in the Migration Review that the Skills in Demand visa is intended to include the following three visa streams:

Specialist Skills Pathway: This is for highly skilled workers with a $135,000 minimum salary.
Core Skills Pathway: This will have an updated occupation list and a $70,000 minimum salary threshold.
Essential Skills Pathway: This steam will target lower-paid workers.

Intended Increased Worker Mobility

As part of the Australian Government’s plan for increased overseas worker mobility and ability to change employers, the new provisions are set to include recognition of time spent with approved employers towards permanent residency as opposed to restarting the clock for Temporary Residence Transition when temporary visa holders change employers.

The Government has also announced that Skills in Demand visa holders will be entitled to a 180-day period to find a new employer whilst retaining the ability to work.

We will keep you updated with new developments regarding the introduction of the Skills in Demand visa and will advise if and when it replaces the TSS subclass 482 visa program.

Disclaimer:

Changes to Labour Market Testing for Subclass 482 and 494 Nominations

Posted by Rebecca Berkovic on December 29, 2023

The Australian Department of Home Affairs (DHA) published legislation on 11 December 2023 that implements several changes to the Labour Market Testing requirements under the Temporary Skill Shortage (TSS) subclass 482 and Skilled Employer Sponsored Regional (Provisional) (SESR) subclass 494 visa programs, effective immediately.

The published legislation assists sponsors by reducing the number of advertisements employers must post from three to two and eliminates the requirement for the advertisement to be posted on the Australian Government’s Workforce Australia website. These eased requirements apply to all applications filed on or after December 11, 2023, and those filed before December 11 but not yet decided.

In addition, the legislation confirms that “back-to-back” advertisements, where, for example, an advertisement is run for 21 days and then a duplicate advertisement is run for 12 days, are not acceptable. While advertisements can run in parallel and at the same time, employers must ensure that each advertisement runs for at least four consecutive weeks to meet the requirement.

Disclaimer:

Subclass 482 and 494 Visa Sponsorship and Upcoming Fixed Term Contract Changes under the Fair Work Act 2009 (Cth)

Posted by Rebecca Berkovic on November 22, 2023

From 6 December 2023, as part of the Secure Jobs, Better Pay amendments to the Fair Work Act 2009 (Cth), employers will no longer be able to employ a worker on a fixed term contract in the following situations:

Where the employment term is for two or more years (including extensions); or
Where the employment contract may be extended more than once, whether or not the total term, is for two or more years.

It is noted that the prohibition of fixed term contracts in the above situations will apply to new fixed term contracts from 6 December 2023. The new provisions will also require review of any fixed term contracts in place prior to 6 December 2023.

It is important that sponsors of overseas employees under the Temporary Skill Shortage (TSS)(subclass 482) visa program and Skilled Employer Sponsored Regional (SESR) (Provisional) (subclass 494) visa program are aware when drafting employment contracts, which may be for the fixed period of the visa or a fixed term.

The relevant limited exception to the prohibition of fixed term contracts of “special skills” may be applicable in the case of subclass 482 and 494 visa candidates.

However, we recommend that sponsors for the subclass 482 and 494 visa programs obtain advice from an employment lawyer on the matter of fixed term contracts to ensure that the 6 December 2023 the Fair Work Act 2009 (Cth) requirements are met.

For advice regarding Australian visas and sponsoring skilled overseas workers, please do not hesitate to contact us at info@hartmanimmigration.com.au for Australian immigration assistance.

Disclaimer:

Introduction of Employer Sponsored Permanent Residency Pathway for TSS subclass 482 Visa Holders on the Short Term Occupation List

Posted by Rebecca Berkovic on November 7, 2023

The Australian Federal Government has announced that on 25 November 2023 changes to the Employer Nomination Scheme (ENS)(subclass 186) visa program will be introduced, with the reforms having the effect of broadening the permanent residency program and enabling Temporary Skill Shortage (TSS)(subclass 482) visa holders to apply for employer sponsored permanent residency earlier. A pathway to permanent residency will be introduced to allow those with occupations on the Short Term Occupation List to be eligible to apply for an ENS subclass 186 visa.

What are the reforms being implemented on 25 November 2023?

The significant reforms intended to be implemented by the Australian Department of Home Affairs (DHA) include the following:

All Temporary Skill Shortage (TSS)(subclass 482) visa holders will be eligible to apply for permanent residency through the ENS (subclass 186) visa program- Temporary Residence Transition stream, provided they meet the requirements of this visa.
As with the current ENS subclass 186 visa requirements, TSS subclass 482 visa holders will need to continue to work in the occupation nominated as was allocated for their TSS subclass 482 visa.
TSS subclass 482 visa holders will be eligible to apply for employer sponsored permanent residency through the ENS subclass 186 visa program after two years. This has been reduced from the current three year requirement.
The current limit on TSS subclass 482 visa holders with occupations on the Short Term Occupation List that can be made onshore in Australia will be removed.

How will the reforms benefit employers?

For companies sponsoring skilled overseas workers through the TSS subclass 482 visa program, currently the process of selecting the ‘nominated occupation’ for a candidate can be difficult if the employer requires a long-term arrangement and the candidate’s occupation is on the Short-Term Occupation List.

The proposed 25 November 2023 reforms will open up a pathway for permanent residency through the ENS subclass 186 visa program to all TSS subclass 482 visa holders, including visa holders with an occupation on the Short Term Occupation List. This will enable employers to have the option of retaining their skilled overseas staff on a long-term basis, regardless of their occupation.

For advice regarding sponsoring overseas workers, please do not hesitate to contact us at info@hartmanimmigration.com.au for Australian immigration assistance.

Disclaimer:

Understanding Australian Temporary Skill Shortage (Subclass 482) Visa Sponsorship Obligations for Employers

Posted by Rebecca Berkovic on September 11, 2023

Australia’s Temporary Skill Shortage (TSS) (subclass 482) visa is a vital instrument for Australian employers to address labour shortages by hiring skilled overseas workers. To ensure the integrity of the program and protect the rights of both employers and employees, the Australian Government has implemented various sponsorship obligations for employers. In this article, we provide an overview of the key sponsorship obligations that employers must fulfill when sponsoring an overseas worker on a TSS (subclass 482) visa.

Standard Business Sponsorship:

Before an employer can sponsor a foreign worker under the TSS visa program, they must obtain Standard Business Sponsorship (SBS) status. To achieve this, employers must meet several criteria, including demonstrating a commitment to training Australian workers and compliance with Australian workplace laws.

Labour Market Testing (LMT):

Employers must conduct labour market testing in most cases to demonstrate that there are no suitable Australian workers available to fill the position before sponsoring a foreign worker. LMT typically involves advertising the job vacancy locally, and employers must provide evidence of their efforts.

Market Salary Rate:

Employers must pay their sponsored foreign workers at least the market salary rate for the occupation. This ensures that foreign workers are not undercutting Australian wages and working conditions. The market salary rate is determined based on various factors, including location, industry, and experience.

Skilling Australians Fund (SAF) Levy:

Employers are required to pay a Skilling Australians Fund (SAF) levy for each foreign worker they sponsor under the TSS visa program. This levy is used to fund training and skill development initiatives for Australian workers. The amount of the levy varies depending on the size and turnover of the sponsoring business.

Notification Obligations:

Employers must inform the Australian Department of Home Affairs (DHA) of any significant changes in their business, such as changes in ownership, financial difficulties, or if their sponsored worker ceases employment. Timely notification is crucial to ensure ongoing compliance.

Maintain Records:

Employers are required to keep detailed records of their employment and sponsorship activities for up to five years. These records must be readily available for inspection by relevant government authorities.

Cooperation with Inspections and Audits:

Employers must cooperate with any inspections or audits conducted by government authorities, including the Fair Work Ombudsman and the DHA. Non-compliance can lead to sanctions and penalties.

Provide Adequate Working Conditions:

Employers must ensure that sponsored foreign workers receive the same working conditions as Australian employees, including access to entitlements such as leave, superannuation, and occupational health and safety protections.

Conclusion:

The Temporary Skill Shortage (subclass 482) visa is a valuable tool for Australian employers facing skill shortages. However, to maintain the integrity of the program and protect the rights of both foreign workers and Australian employees, employers must adhere to a range of sponsorship obligations. Compliance with these obligations is essential to avoid penalties, sanctions, and potential loss of sponsorship status. By understanding and fulfilling these obligations, employers can benefit from a skilled workforce while contributing to the Australian labour market and economy.

Disclaimer:

Transferring Employers for TSS Subclass 482 Visa Holders

Posted by Rebecca Berkovic on August 24, 2023

Holders of Temporary Skill Shortage (TSS) (subclass 482) visas are subject to the condition 8607 work restriction. Condition 8607 means that a TSS subclass 482 visa holder can generally only work for their sponsoring employer (or associated entities in certain situations). In accordance with condition 8607, TSS subclass 482 visa holders must also work in the occupation which is specified in the nomination provided to the Australian Department of Home Affairs (DHA).

If your business is interested in sponsoring a candidate who already holds a TSS subclass 482 visa, or you are a TSS subclass 482 visa holder transferring employers in Australia, it is possible to arrange this.

The process is as follows:

If the TSS subclass 482 visa holder will remain in the same occupation:

If the candidate will be remaining in the same position as they were for their previous sponsoring employer and therefore will continue to have the same ‘nominated occupation’ then the process involves two stages:

Your business as the new employer must either be registered as a standard business sponsor or apply to become a sponsor.
A nomination application must be lodged to select the candidate and it must the candidate must be nominated in the same occupation.

It is important to note that the candidate cannot commence work for your business until the new nomination has been approved by the DHA.

If the TSS subclass 482 visa holder will be changing positions/nominated occupations:

If the candidate will be changing roles and will have a different ‘nominated occupation’ in your business, then the following three stages will apply:

The new employer must either be registered as a standard business sponsor or apply to become a sponsor.
A new nomination application must be lodged with a different ‘nominated occupation’ selected.
The candidate will require a new visa application associated with the new nomination and the candidate will need to prove they have the skills and work experience to meet the requirements of the new occupation.

It is important to note that if the candidate has already resigned from their previous employer and sponsor, under condition 8607 they only have 60 days from termination of their employment to find a new employer and lodge a new nomination.

For advice regarding Australian visas and sponsoring skilled overseas workers, please do not hesitate to contact us at info@hartmanimmigration.com.au for Australian immigration assistance.

Disclaimer:

Labour Market Testing Exemption Extended to UK Citizens and Permanent Residents

Posted by Rebecca Berkovic on August 16, 2023

The Australian Government has now implemented the extension of the labour market testing exemption in relation to the Temporary Skill Shortage (TSS)(subclass 482) visa program to UK citizens and permanent residents applying to work in Australia.

The inclusion of the UK in the list of countries exempt from labour market testing (including China, Japan, Malaysia, Mexico, Thailand, Vietnam, Canada, Chile, South Korea, New Zealand and Singapore), comes in the wake of the recently signed Australia-United Kingdom Free Trade Agreement which came into effect on 31 May 2023.

Businesses interested in employing UK citizens and permanent residents will no longer need to complete labour market testing of the local Australian labour market before applying for TSS subclass 482 nominations in Australia. This will enable employers sponsoring UK citizens and permanent residents to benefit from a more efficient and less time-consuming application process.

For advice regarding Australian visas and sponsoring skilled overseas workers, please do not hesitate to contact us at info@hartmanimmigration.com.au for Australian immigration assistance.

Disclaimer:

Ensuring Immigration Compliance when Hiring Overseas Workers

Posted by Rebecca Berkovic on August 9, 2023

In order to retain and attract the workforce that best assists your business to grow and develop, it is important to have the option to sponsor and hire overseas employees to work in Australia. In doing so, in order to protect the business and care for employees, it is crucial that organisations are aware of the changing Australian visa landscape and visa conditions of employees.

During the COVID-19 period, as the Australian Government focused on economic relief for Australian businesses, employers were given increased flexibility to hire overseas workers, including unlimited work hours for Student visa holders and entitlement of Working Holiday makers to have increased time with one employer.

It is important for Australian businesses hiring overseas workers to be aware that the Federal Government is now rolling back the flexible visa arrangements introduced during the pandemic. Changes to the temporary flexible measures include the following:

Student (subclass 500) visa holders have returned to being given a work limitation of 48 hours per fortnight whilst their course is in session, unless continuing to work in aged care where full-time hours are permitted until 31 December 2023.
Working Holiday makers have returned to generally being limited to working a maximum of 6 months with any particular employer, unless a limited exception applies.
Employers and labour hire companies will now be held liable for any facilitated breaches of the above and other visa conditions.

On 31 July 2023, the Australian Federal Government passed the Migration Amendment (Strengthening Employer Compliance) Bill 2023 (the Bill) which amends the Migration Act 1958 with the purpose of strengthening employer compliance measures and protecting temporary migrant workers from exploitation.

Main components of the Bill:

Creating a criminal offence where a person coerces, or exerts undue influence or undue pressure on a non-citizen to accept or agree to a work arrangement that would involve a breach of a work-related condition.
Creating a criminal offence where a person coerces, or exerts undue influence or pressure on a non-citizen to accept a work arrangement to avoid an adverse immigration status, or that would result in the non-citizen being unable to satisfy a work-related visa requirement.
Establishing a framework where the Minister can declare certain employers to be ‘prohibited employers’ for a specified period of time. Rather than just barring or cancelling the employer’s business sponsorship license, the prohibition applies to the employment of any temporary visa holder.
Mandating the use of the VEVO system for employers to determine whether a non-citizen is lawful and has the necessary permission to work.
Increasing civil and monetary penalties for individuals and business sponsors.

How can employers ensure compliance?

In order for businesses to ensure that they are protected from breaches of the Migration Amendment (Strengthening Employer Compliance) Bill 2023, steps that employers can take include:

Ensuring that the visa status of each overseas worker is known and recorded by the business.
Conducting a VEVO check for all overseas workers.
Ensuring that systems are in place so that the business is updated with any visa changes for overseas workers employed by the business.

For advice regarding immigration compliance and employing overseas workers, please do not hesitate to contact us at info@hartmanimmigration.com.au for Australian immigration assistance.