One of the key policy changes implemented along with the new Temporary Skill Shortage (subclass 482) (TSS) visa is a new, stricter Labour Market Testing (LMT) requirement. In this article, we set out the key requirements and the now very limited exemptions to LMT.

Exemptions

Previous exemptions based on occupation or skill level no longer apply. The only exemption available is where LMT would conflict with Australia’s international trade obligations as set out below:

• The nominee is a citizen/national of China, Japan or Thailand, or is a citizen/national/permanent resident of Chile, South Korea, New Zealand or Singapore;
• The nominee is a current employee of a business that is an associated entity that is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile, China,​ Japan, South Korea or New Zealand;
• The nominee is a current employee of an associated entity who operates in a country that is a member of the World Trade Organisation (WTO), where the nominated occupation is an Executive or Senior Manager occupations for the purposes of international trade obligations and the nominee will be responsible for the entire or a substantial part of the company’s operations in Australia;
• The Sponsor’s business operates in a WTO member country or territory and is seeking to establish a business in Australia, where the nominated occupation is an Executive or Senior Manager occupations for the purposes of international trade obligations; or
• The nominee is a citizen of a WTO member country or territory and has worked for the Sponsor in the nominated position in Australia on a full-time basis for the last two years.

Period in which LMT Must Occur

LMT must occur during a specific timeframe:

• For nominations lodged before 18 June 2018 – during the 12 month period prior to lodging the nomination; and
• For nominations lodged after 18 June 2018 – within the 6 month period prior to lodging the nomination.

However, if the sponsor or an associated entity has made any Australian worker redundant or retrenched them from positions in the nominated occupation within four months of lodging a nomination occupation, they must perform LMT since the date the redundancy/retrenchment occurred. Further information about these events will also need to be supplied to the Department of Home Affairs (Department).

Substantive requirements – no suitably qualified/experienced Australian

There are substantive requirements in terms of the how and what of LMT. Essentially, the Department must be satisfied that a suitably qualified/experienced Australian worker was not available to fill the position.

The Department has advised that it would generally be satisfied of this if the LMT meets all of the following:

• the nominated position has been advertised in Australia;
• the advertisement was in Englishand included the following information:
  • the title, or a description, of the position;
  • the name of the sponsor or the name of the recruitment agency being used by the sponsor; and
  • the annual earnings for the position (unless the annual earnings will be greater than the Fair Work High Income Threshold)
• at least two advertisements were published:
  • on a national recruitment website (for example gov.au). A general classifieds website is not an acceptable method;
  • in national print media;
  • on national radio; or
  • if the sponsor is accredited– on the businesses’ website.

With the LMT provisions now applying to all occupations at all skills levels (unless an international trade obligation applies), businesses who rely on overseas skills must ensure that their HR departments are aware of these requirements and have a recruitment policy in place which reflects the new requirements.

For advice regarding skilled visas, please do not hesitate to contact us at info@hartmanlawyers.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.

Certain sponsors will be eligible to apply for “accredited status.” Accredited sponsors receive priority processing for all TSS nominations and visa applications – usually these applications are processed in less than five days.

Also, applicants who are sponsored by an accredited sponsor are not required to obtain police certificates from countries other than Australia if they provide a written reference from their accredited sponsor confirming that they are of good character and have not been convicted of any criminal offences.

Set out below are the categories of sponsors who are eligible for accreditation.

Criteria for becoming an Accredited Sponsor

• Category 1 Commonwealth, state and territory government agencies:
  • Must have Australian workers comprising at least 75% of their workforce in Australia.
• Category 2 “Australian Trusted Traders” must:
  • Have Australian workers comprising at least 75% of their workforce in Australia;
  • Engage all TSS/457 visa holders as employees under a written contract of employment that includes at least the minimum employment entitlements as required under the National Employment Standards (NES) (if applicable); and
  • Have all Australian employees paid in accordance with an Enterprise Agreement or an internal salary table that reflects the current market salary rates for all occupations in their business.
• Category 3 Low volume usage and high percentage of Australian workers must:
  • Have Australian workers comprise at least 85% of their workforce in Australia;
  • Are not a sole trader or a partnership (some exceptions apply);
  • Have an annual turnover of at least AUD4M for the last two years (some exceptions apply);
  • Have been a standard business sponsor for at least one year (some exceptions apply);
  • Have nominations approved for at least one primary TSS or subclass 457 visa holder in the last year (some exceptions apply);
  • Have a nomination non-approval rate of less than 3% for the last year;
  • Have no adverse monitoring outcomes;
  • Have all Australian employees paid in accordance with an Enterprise Agreement or an internal salary table that reflects the current market salary rates; and
  • Engage all TSS /457 visa holders as employees under a written contract that meets NES (if applicable).
• Category 4 High volume usage and medium percentage of Australian workers (at least 75%) must:
  • Have Australian workers comprise at least 75% of their workforce in Australia;
  • Are not a sole trader or a partnership (some exceptions apply);
  • Have an annual turnover of at least AUD4M for the last two years;
  • Have been a standard business sponsor for at least two years;
  • Have nominations approved for at least 10 TSS 457 visa holders in the last two years;
  • Have a nomination non-approval rate of less than 3% for the last two years;
  • Have no adverse monitoring outcomes;
  • Have all Australian employees paid in accordance with an Enterprise Agreement or an internal salary table that reflects the current market salary rates; and
  • Engage all TSS and/or subclass 457 visa holders as employees under a written contract that meets NES (if applicable).

 More information about becoming an Australian Trusted Trader can be found here.

How to apply

Businesses can apply for accredited status when they apply to become a standard business sponsor or when renewing an existing sponsorship.

If the business does not meet the requirements for accredited status, the application for standard business sponsorship will still proceed and be assessed in the usual way.

For advice regarding becoming an accredited sponsor, please do not hesitate to contact us at info@hartmanlawyers.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.

This month marks a substantial change for Australian temporary skilled work visas as the well-known and much used subclass 457 visa has now been replaced by the new Subclass 482 Temporary Skills Shortage (TSS) visa. With the TSS visa, the Australian Government has sought to split the skilled visa program into two very distinct pathways– one pathway being based on what the Government sees as “short term” skills, the other, based on medium term to long term skills which retains a pathway to permanent residency for the visa holder and more closely resembles the old 457 visa.

Essentially, the Australian Government has now made created a new type of skilled worker in Australia – someone with required skills who can stay and work for up to two years (with the potential to renew for a further two years), but whose skills are not considered critical enough by the Government to justify eligibility for permanent migration. For businesses who are unable to secure local labour for positions which fall into this new “short term” category, it remains to be seen whether they will experience difficulties filling those skill gaps now that the short term visa does not carry the promise of permanent residency in Australia.

The new regulations came into effect on 18 March 2018 and contain numerous details – this article focuses on the main requirements of the TSS visa as well as significant changes from the previous skilled temporary work visa program.

Visa Stream

Visa applicants will still need to be nominated by a sponsoring employer. The TSS visa has three streams:

Short term: Sponsors must nominate an occupation from the Short-Term Skilled Occupations List (STSOL). Visa holders in this stream can only be employed for two years and can be renewed onshore only once (or up to four years if this would be inconsistent with an international trade obligation). After this, the applicant must be offshore to apply for another short term TSS visa. Additionally, visa applicants must satisfy a genuine temporary entrant (GTE) criteria, which will involve an assessment of circumstances, immigration history, previous compliance with visa conditions and any other relevant matter.

Medium term: Sponsors must nominate an occupation from the Medium and Long-term Strategic Skills List (MLTSSL). In this stream, a higher level of English proficiency is now required (unless an exception applies), such as a 5.0 in each test component of the IELTS.

Labour agreement: Employers can nominate an overseas worker pursuant to a labour agreement with the Commonwealth, where there is a need that cannot be met locally and the visa programs are not available.

KEY DIFFERENCE: The Medium Term Stream is similar to the old 457 visa, however, visa holders must now be employed for three years, not two, before being eligible to apply for permanent residency and must meet more stringent English language criteria. The Short Term stream is markedly different to the 457 visa, being just a two year visa with no permanent residence pathway. Visa applicants for this stream also have the added hurdle of establishing the GTE criteria, which may be increasingly difficult to establish if the applicant is re-applying for a further TSS short term visa.

Labour Market Testing

Labour Market Testing (LMT) is mandatory unless international trade obligations apply. Nomination applications lodged on or after 18 March 2018 LMT must have occurred in the 12 month period immediately before the nomination is lodged. For nomination applications lodged on or after 18 June 2018, LMT must have occurred during the 6 months immediately before the nomination is lodged.

KEY DIFFERENCE: Previously, there were numerous exemptions to the LMT requirement, including professional and managerial level occupations.

Work Experience

TSS visa applicants are required to have worked in the nominated occupation, or a related field, for at least two years. Policy guidance is yet to be released however it is expected that this requirement will be applied with some flexibly, for example, employment gained as part of the research components of a Masters and/or PhD may be considered as work experience for relevant occupations, such as medical and research occupations.

KEY DIFFERENCE: Previously, professional and managerial positions generally required a bachelor degree or higher OR 5 years relevant work experience.

Annual Market Salary Rate

The previous market salary rate requirements have been reformulated around the concept of annual market salary rate (AMSR). It means that an employer who is sponsoring a worker must pay that person at least the same as an Australian citizen or permanent resident earns, or would earn, for performing equivalent work on a full-time basis in the same workplace in the same location. The AMSR must equal or exceed the temporary skilled migration income threshold (TSMIT) which remains at $53,900.

KEY DIFFERENCE: This provision is intended to achieve the same outcome as the previous “market salary rate” which applied to the 457 visa, with an extended definition of AMSR now having been provided.

Training Requirements

The Department of Home Affairs (the Department) previously flagged that Training Benchmark A and Training Benchmark B would be replaced by mandatory contributions by Sponsors to a “Skilling Australians Fund”. However, this change has not been implemented and Training Benchmark A and Training Benchmark B still apply. The Government has introduced a new legislative instrument which defines the term “employee” by reference to the Fair Work Act 2009.

KEY DIFFERENCE: No significant changes from the previous requirements as yet.

Condition 8607

Condition 8607 includes the same provisions as condition 8107 (the visa holder can only work for the nominating employer), and adds a provision that requires the visa holder to work only in the occupation in relation to which the Subclass 482 visa was granted.

KEY DIFFERENCE: a TSS visa holder must obtain a new nomination to change occupations.

The New Landscape of Temporary Employer Sponsored Visas

In this time of significant legislative and policy change to temporary employer sponsored visas, it is important for employers and visa applicants to obtain professional and up to date advice regarding TSS sponsorship, nomination and visa applications and determine the most appropriate Australian immigration strategy for each individual case.

The visa processing environment is also changing rapidly and obtaining the correct advice on visa selection is crucial to the successful outcome of a visa application.

For advice regarding Australian work visas, please do not hesitate to contact us at info@hartmanlawyers.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.

This month the subclass 457 visa is scheduled to be replaced by the new Temporary Skills Shortage (TSS) visa. Accordingly, it is an opportune time to provide an update on what the TSS visa will look like – both or for businesses and overseas workers.

Nominating an Occupation

The Short-term Skilled Occupations List (STSOL) and the Medium and Long-term Strategic Skills List (MLTSSL) have already been introduced. In terms of how these lists will apply to the TSS Visa, the STSOL will allow the visa holder to work for up to two years only, whereas the occupations on the MLTSSL will allow the visa holder to work for up to four years with an option to apply for permanent residency after three years.

Work Experience

TSS visa applicants will be required to have worked in the nominated occupation, or a related field, for at least two years. However, it is expected that the “work experience” requirement will be considered flexibly and in line with industry practice. For example, the research components of a Masters and/or PhD may be able to be counted as work experience for relevant occupations, such as medical and research occupations

Labour Market Testing

Labour Market Testing (LMT) will mandatory unless international trade obligations apply. There will be specific requirements around where advertising must occur, how long the position must be advertised for and that the advertisement must be in English. However, the Government has indicated that there will be some flexibility in relation to nominations for an existing visa holder and for talent-based position (e.g. sports-people, top-talent chefs, eminent academics and researchers).

Training

Sponsors will no longer need to meet Training Benchmark A or Training Benchmark B. Instead, employers will be required to pay a set contribution to the Skilling Australians Fund.

Renewing a TSS Visa

Applicants for a TSS visa can either be inside or outside Australia. However if the application is for a short-term stream visa (ie the occupation is on the STSOL), the primary visa applicant must be offshore if all of the below apply:

• they have held more than one ST stream TSS visa;
• they were in Australia when the application for their most recent TSS visa was made; and
• this requirement would not be inconsistent with any international trade obligation.

Holders of two ST stream TSS visas in a row (where the second application was made in Australia) can apply for a further visa TSS ST stream visa offshore. However, in this situation the Department of Home Affairs has indicated that their immigration history may be relevant in terms of whether they are considered to have met the Genuine Temporary Entrant requirement for this visa stream.

Transitional arrangements

In our previous article we explained how pipeline applications would be processed once the TSS visa is implemented. Set out below is an explanation of how existing sponsors and visa holders will be affected after the changeover.

Scenario	What happens after TSS comes into effect
Employer who is an existing 457 sponsor	·         The employer can nominate overseas workers under the new TSS visa program, including existing subclass 457 visa holders for whom a new TSS nomination is required to facilitate a change of employer or occupation ·         Australian businesses can lodge a new renewal form prior to the expiry of their sponsorship
Holder of a subclass 457 visa nomination	·         They must lodge a new TSS nomination before they lodge their TSS visa application ·         They can request the nomination be withdrawn and the fee refunded, if they were not able to lodge a related subclass 457 visa application before the implementation of the TSS visa
Holder of a subclass 457 visa	·         Must ask a new employer to lodge a TSS nomination application if they want to change employer ·         Must ask their current employer to lodge a TSS nomination application to change occupation ·         Must lodge a TSS subsequent entry visa application for members of the family unit ·         Must lodge a new TSS visa application prior to the expiry of their subclass 457 visa ·         the minimum period the visa holder is required to have been employed in their nominated occupation as the holder of a subclass 457 or TSS visa to apply for permanent residence under the TRT stream will remain at two years. NB: Time spent on a 457 visa does not count for the purpose of onshore renewal of a TSS visa (see above).

 

Given the changes announced last year are now imminent, business and visa holders alike should familiarise themselves with the new temporary skilled visa program and understand what the new requirements will look like.

For advice regarding skilled visas, please do not hesitate to contact us at info@hartmanlawyers.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.