The contract and employment requirements for the new Temporary Skill Shortage (TSS) visa (subclass 482) are slightly altered from the previous Temporary Work (Skilled) visa (subclass 457). For those seeking to nominate themselves having started a business, or wish to nominate a partner, what are the rules?
Under the short term and medium term stream, the following applies:
Australian business sponsor
Must engage the nominee as an employee under the sponsoring company or associated entity under a written contract of employment. A copy of the contract that is signed by both the employer and the nominee must be provided.
Overseas business sponsor
Must engage the nominee as a direct employee under a written contract of employment. A copy of the contract that is signed by both the employer and the nominee must be provided.
Sole traders – nominating yourself
A sole trader cannot nominate themselves as a contractual relationship cannot exist because the employer and the employee would be the same individual.
Nominating a partner
Partnerships are governed by partnership legislation enacted by each State/Territory:
- Partnerships operating in South Australia, Northern Territory, Australia Central Territory and Tasmania will not be able to nominate a partner for a TSS 482 visa, because contracts made between partners are considered to be void
- Legislation in Western Australia, New South Wales, Victoria and Queensland permits contracts between partners. As a result, partnerships in these states may be able to nominate a partner, however the Department of Home Affairs (DOHA) will give careful consideration in regards to if the position has been created to secure a positive visa grant for the nominee. If determined that the position is not genuine, the application is unlikely to have a successful outcome
Evidence
- The signed contract should cover the full employment period
- If this contract is in a language other than English, a translation must be provided. The translation does not need to be signed by both parties as long as it is a certified translation of the original contract
- A contract to provide services, including one for which the contractor is required to have an ABN, will not satisfy the requirement
- If the nominee is to be engaged as an employee of an associated entity of the sponsor, and the sponsor is an Australian business, an employment contract between the nominee and the associated entity must be provided
Evidence for intra-company transfers
In the case of an intra-company transfer:
- It must be on the company’s official letterhead
- A statement must be provided confirming that the nominee is engaged under a contract of employment
- It must contain the name of the company the nominee is employed by
- It must contain the name of the sponsoring company in Australia
- It must contain salary details for Australian assignment, including base salary and allowances
- Details on the occupation in Australia must be provided and it should match the definition under ANZCO
- It must contain details on the length of the assignment
- It must have a signature from a company representative and be dated
- It must have the signature of nominee accepting terms and conditions of assignment and date
Evidence for enterprise agreement or industrial award
In the case of an anterprise agreement or industrial award:
- It must be on the company’s official letterhead
- A statement confirming that the nominee is to be engaged as an employee
- A statement confirming that the terms and conditions of employment are specified in an enterprise agreement or industrial award
- It must contain the name of the enterprise agreement or industrial award (and the agreement number/code, if applicable)
- It must contain the ordinary hours of work
- It must contain the classification/level applicable, if salary details are specified in the enterprise agreement or Industrial Award
- It must contain the salary details if these are not specified in the enterprise agreement or industrial award
- It must have a signature from a company representative and be dated
- It must have the signature of nominee accepting the offer of employment and date
Contracts done online
- If the letter to the nominee has been sent via email, electronic signatures are acceptable provided the email is from an verifiable company email address
- If the nominee is accepting the offer via email, an electronic signature is acceptable so long as the acceptance email is a reply to the email containing the offer and the original email is included
- If the nominee accepted the position online, a screenshot needs to be provided
Are you unsure as to how to meet this requirements? Would you like to nominate your partner and relieve any doubt the DOHA has on if the application is for a genuine position? Speak to professional and experienced migration specialists who will help you create a decision ready application which will save you time and money. Book a consultation with us online, call +61 2 8054 2537 or email sydney@australiavisa.com.
