The 482 Australian Work Visa – Part 1

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The 482 Australian Work Visa – Part 1

The Temporary Skill Shortage (TSS) Visa (Subclass 482) replaced the Temporary Work (Skilled) Visa (Subclass 457) effective 18 March 2018. Whilst very similar, the TSS 482 visa has been built to make it tougher for applicants to get into or stay in Australia, particularly for international students who complete their studies here. There are three streams to the TSS 482 visa – short term stream, medium term stream and labour agreement stream.

Temporary Skill Shortage (TSS) 482 visa

Short term TSS visa

  • For occupations the Short Term Skilled Occupation List (STSOL). Occupation must be on the list at the time of lodgement
  • Visa valid for up to two years.
  • Can be renewed onshore once (unless inconsistent with international trade obligations). If not eligible to renew onshore, renewals may be applied for offshore
  • Same English language requirement as the 457 visa
  • Genuine Temporary Entrant criterion must be met
  • No pathway to permanent residency through the ENS transition stream

Medium term TSS visa

  • For occupations on the Medium to Long Term Strategic Skills List (MLTSSL). Occupation must be on the list at the time of lodgement
  • Visa valid for up to four years. Period of one, two, three or four years must be requested in the application
  • No restriction on renewals while in Australia
  • English language requirement of a minimum score of 5 for each component in IELTS (or its equivalent)
  • Pathway to permanent residency after three years with other requirements fulfilled

Read: English proficiency tests

Read: Occupation Lists – The Ultimate Guide

Read: TSS 482 & ENS 186 Visa: Does A Caveat Apply & Is There Any Wiggle Room?

 Labour agreement TSS visa

  • For sourcing of skilled overseas workers in accordance with a labour agreement with the Commonwealth, where there is a demonstrated need in the Australian labour market and other standard visa programs cannot fill the need

 Global Talent Scheme (GTS)

The GTS was launched on 1 July 2018 and will run for 12 months. Where no suitable Australians are available, businesses will be able to sponsor highly skilled overseas workers with niche skills that are not covered by short term and medium term streams of the TSS 482 visa program.

There are two streams under the GTS:

  • Established Business Stream allows for employers who are accredited sponsors to employ highly skilled individuals with cutting edge skills to contribute to innovation in an established businesses and help to better Australian businesses and their employees
  • Start up stream allows for employers to sponsored highly skilled individuals with cutting edge skills to contribute to Australia’s start ups and bring new ideas, jobs, skills and technology to Australia. This is for startups in the technology field or STEM (science, technology, engineering and mathematics) field. The start up must be endorsed by an independent start up advisory panel.

If eligible, the applicant will be granted a four year TSS visa which has the option of permanent residency if eligibility criteria are met.

 

 TSS 482 visa requirements

There are many important and complex requirements that must be fulfilled when applying for a TSS 482 visa. We will split this article into two parts.

  • Genuine need requirement (Part I)
  • Contract and employment requirements (Part I)
  • Labour Market Testing (MLT) requirement (Part I)
  • Work experience requirement (Part I)
  • Salary requirement (ASMR) (Part II)
  • Non-discriminatory recruitment practices requirement (Part II)
  • Skilling Australians Fund (SAF) (Part II)
  • No adverse information (Part II)

We will also cover Condition 8607 in part II, which is important to cover as it talks about the boundaries of a TSS visa holders work situations.

 Genuine need requirement

A very important requirement that must must be satisfied is that a there is genuine need for the sponsor to employ the person to work in the position under their direct control.

In a direct employer/employee relationship, the employer:

  • Has the right to legally appoint a person to a position
  • Pays the employee’s salary and any statutory benefits, such as annual and sick leave, as required for ongoing employment under workplace relations legislation and awards
  • Pays payroll tax, compulsory superannuation, fringe benefits tax, and deductions for PAYG tax
  • Must have a workers compensation policy that covers the employee
  • Has the right to legally dismiss or suspend the employee
  • Determines who does the work, as well as when, how and where the work is done (this is commonly referred to as the control test)
  • Provides the employee with any tools and training they need to perform the position duties
  • Is generally liable for the actions and behaviour of employees in relation to their employment, and
  • Has responsibility for workplace health and safety issues. Generally, all State/Territory workplace health and safety legislation requires the employer to:
    • Provide and maintain a safe workplace and working environment and
    • Provide and maintain safe plant/machinery and
    • Provide safe work systems (this relates to procedures and policies relating to work practices) and
    • Ensure the safe use, handling, storage and transport of substances and
    • Provide information, instruction, training and supervision necessary for the employee to perform their duties safely

Genuine need for a skilled position

The DOHA will want to see that there is truly a vacancy for the nominated position and will consider all the information that has been provided in the online application form and supporting documentation, including that which is in relation to the nature of the business and the employment structure/employment

The information should identify and justify a continued and genuine need for the sponsor to employ the applicant in the nominated position. Possible reasons may include:

  • The nature and scope of the business activities such as:
    • Increases in business activity
    • Plans for future expansion
    • Impact on the business if the application was refused
  • Current employers in the nominated occupation having to do overtime
  • If the position continues to fit within the regular and ongoing business activities (evidence may include an organisation chart or otherwise)
  • The position continues to be needed in regular and ongoing business activities
  • The position contributes to maintaining or enhancing the volume and/or quality of business outputs (evidence may include detailed and quantifiable plans for future expansion)
  • The position has been in existence, was previously occupied, but has become vacant
  • The position is relevant to new proposed business activities

Evidence against the position being one that has a continued and genuine need include and is not limited to:

  • The sponsoring businesses industry is not doing well
  • The position has changed over time and involves new tasks that no longer correspond to the nominated occupation
  • Retrenchment in the previous 12 months of other employees, including Australian workers, in the nominated occupation or similar occupations
  • Reduction of hours worked during the previous 12 months for other employees, including Australian workers, in the nominated occupation or similar occupations
  • Reduction in pay and conditions within the previous 12 months for other employees, including Australian workers, in the nominated occupation or similar occupations
  • Employment of a temporary visa holder on conditions less favourable than those for Australian employee
  • Recruitment of temporary visa holders beyond the ordinary scope of the operation of the business.

Contract and employment requirements

There are certain contract and employment requirements that must be fulfilled and vary depending on the business and employment situation

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 ANZSCO
  • 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 enterprise 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

 Labour Marketing Testing (LMT)

Alongside many other toughened requirements made under the introduction of the TSS 482 visa is the amendment to the Labour Market Testing (LMT) requirement. LMT is to be required for all TSS applications unless international trade obligations apply. There are no exemptions.

No suitably qualified/experienced Australian

The DOHA must be satisfied that ‘a suitably qualified and experienced Australian worker is not available to fill the nominated position’. Generally if no contrary evidence exists, this requirement is considered met so long as the evidence of LMT provided has demonstrated that the advertising had sufficient coverage and was carried out for a reasonable duration.

Advertising:

  • The nominated position has been advertised in Australia
  • The advertisement was in English and included the following information:
    • Position title and/or job description
    • The name of the approved sponsor or the recruitment agency being used
    • Annual earnings for the position, unless the annual earnings exceed the Fair Work High Income Threshold
  • At least two advertisements were published
    • On a national recruitment website (e.g. jobactive.gov.au)
    • On a recruitment website ‘with national reach’; is prominent and/or professional and publishes advertisements for positions all over Australia
    • A general classifieds website or an advertisement only on social media such as Twitter or Instagram is not an acceptable
    • In national print media, such as national newspapers or magazines that are published at least monthly and marketed throughout Australia
    • On national radio, or radio with ‘national reach’; radio programmes that are broadcast or syndicated nationally
    • On the business’s website, only if the sponsor is accredited

If the advertisement is published on a website it is expected that the advertisement would have ‘remained live’ for at least 4 consecutive weeks.

If the advertisement is published in print media or on radio, it is expected that applications or expressions of interest for the advertised position were accepted for at least 4 consecutive weeks.

Fair Work High Income Threshold (FWHIT)

The FWHIT was increased on 1 July 2018 to AUD$142,00 to AUD$145,400. This affects applications that need to meet the LMT requirement where advertising needs to provide annual salaries unless the position exceeds FWHIT.

LMT must have been undertaken for at least four weeks and within four months prior to the lodging of the application.

Alternative evidence of LMT

Alternative evidence can be considered sufficient to demonstrate that ‘a suitably qualified and experienced Australian worker is not available to fill the nominated position’ under the following circumstances

If the nominated position is one where the nominee has an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research, the evidence required is a submission explaining why the individual nominated is the only person, or one of very limited persons, who could undertake the nominated position and no Australian worker is available

If the nominated position is currently held by an existing TSS for which a new nomination has been lodged because:

  • Annual earnings for the nominee have changed, or
  • There is a change in business structure that has resulted in the nominee’s employer lodging a new application to be a standard business sponsor

The evidence that is required is the same LMT evidence provided in the original nomination as well as a statement is required that explains that the visa holder is remaining in the same position.

Required period of LMT

LMT must be completed in the 6 months prior to the lodgement of the nomination application. Applications lodged before 18 June 2018 will need to have completed the LMT requirement in the 12 months before the nomination application is lodged.

If any Australian workers have been made redundant or retrenched from the same or similar occupations in the sponsor’s business or associated entity in the four months prior to lodging the application, LMT must start from the point of the redundancy or retrenchment.

In the latter situation, information on the redundancy or retrenchment should be provided alongside LMT evidence.

Evidence of LMT

Evidence must be provided that shows that the sponsor has attempted to suitably qualified and experienced Australian citizens or permanent residents for the position or for similar positions.

This would include documents related to advertising and should contain the details of fees/other expenses paid or payable for that advertising. For example, details of website or newspaper advertising undertaken, and any invoices showing the fees.

If fees were paid for advertising, the following documents should be provided:

  • A copy of the advertisement
  • Receipt for fees paid

If fees were not paid for advertising, the following documents should be provided:

  • A copy of the advertisement

Evidence of advertising

Evidence of any advertising, whether paid or unpaid, of the position and any similar positions must be provided:

  • If a similar ad was placed in multiple formats and/or platforms, and the details of how widely the position has been advertised is provided in the nomination form, only one copy of the advertisement is required
  • Renewal of TSS nomination applications are expected to meet the LMT requirement again before engaging the TSS holder for a further sponsorship
  • Advertising may have been undertaken by a third party if authorised to do so by the sponsor (for example, an associated entity or a contracted party) – there is no requirement that the sponsor placed the advertisement themselves.

Read: TSS 482 Visa – Renewals

Evidence of fees associated with advertising

Details of the fees and any other expenses paid or payable must be provided:

  • A document containing details of any advertising expenses
  • If no fees are payable it would be beneficial to provide evidence of this

Sponsors could provide additional information regarding their attempts to recruit an Australian worker (citizen or permanent resident)

Examples of additional information could include and is not limited to:

  • Information about the sponsor’s involvement in relevant job and career exhibitions
  • Details of fees and expenses paid or payable for any other types of recruitment activities
  • Details of the results of such recruitment activities including details of any positions filled as a result of these activities
  • Copies or references to research relating to labour market trends or in relation to the nominated occupation, that has been released in the four months prior to the application
  • Expressions of support from Commonwealth, State/Territory government authorities with responsibility for employment matters

When the DOHA investigates

These are situations in which the DOHA may continue to have concerns regarding LMT despite evidence provided. In understanding these you may avoid such mistakes:

  • When advertising undertaken does not appear to have been for the same position as that nominated
  • When the nominee themselves advertised the position
  • If terms and conditions advertised appear to be significantly less favourable than those being offered to the nominee or would be offered to an equivalent Australian worker
  • The date of the employment contract the is before advertising was performed

International trade obligations – Exempt from LMT

Where international trade obligations (ITOs) apply, the nomination may be exempt from LMT.

  • Free Trade Agreements (FTAs)
  • World Trade Organisation (WTO) General Agreement on Trade in Services (GATS)

Find: World Trade Organisation member countries

LMT is exempt in the following situations:

  • The applicant is a citizen/national of the People’s Republic of China, Thailand or Japan, or s citizen/national/permanent resident of Chile, the Republic of Korea, or New Zealand
  • The applicant is a current employee of a company that operates in Chile, New Zealand, the Republic of Korea, Japan, the People’s Republic of China, or any ASEAN nation*, and is being nominated by an associated entity of that business that operates in Australia
  • The applicant is a current employee of a business that is both operating in a WTO member country and an associated entity of the Australian sponsoring business and is being nominated for an Executive or Senior Manager position**, and is to be responsible for the entire or a substantial part of the company’s operations in Australia
  • The applicant is an Executive or Senior Manager** and is nominated by an overseas business sponsor operating in a WTO member country and is to be responsible for the establishment of a new operation of that business in Australia
  • The applicant is a citizen of a WTO member country and is being nominated by an employer for whom the applicant has worked in Australia on a continuous, full time basis, for the two years immediately before the nomination is lodged, AND
    • The applicant is remaining in the same nominated position under the same employer, or the new sponsor is still an associated entity of the original sponsor, OR
    • The applicant is nominated for a different position within the business but has a specialised knowledge at an advanced level of a proprietary nature of the company’s operations

* ASEAN countries include Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam

** Eligible Executive or Senior Manager positions include:

  • Chief Executive or Managing Director [111111]
  • Corporate General Manager [111211]
  • Sales and Marketing Manager [131112]
  • Advertising Manager [131113]
  • Corporate Services Manager [132111]
  • Finance Manager [132211]
  • Human Resource Manager [132311]
  • Supply and Distribution Manager [133611]
  • Chief Information Officer [135111]

 Work experience requirement

The applicant must have at least two years of relevant work experience. Relevant work experience is however, on the side of flexible, and will include experience in the context of the nominated occupation, experience in related roles and flexible working arrangements.

Work experience in related field

Visa applicants are required to have worked in the nominated occupation, or a related field, for at least two years. Performed tasks must have been at the skill level as defined under ANZSCO.

Related field: The same or closely the same or closely related to those of the nominated occupation as outlined in ANZSCO

Skill level: Work experience must have been performed at the appropriate skill level. For example, work experience as a Kitchen Hand cannot be counted towards the work experience requirement for a Chef position

Do note that satisfying this work experience requirement is separate to other work experience requirements that may be outlined in ANZSCO occupation definitions.

Full time work

Work must be Been undertaken on a full-time basis in the last five years. This period does not need to be continuous. Part-time work can also be considered if amalgamates to the equivalent of two years of full-time work.

Full-time as defined by the DOHA for the purposes of the TSS visa is at least 38 hours per week. In the case of the applicant having worked under an industry award or an agreement that was consistent with the National Employment Standards (NES) where applicable, full- time work can be considered between 32 and 45 hours per week. The DOHA recognises that there are a variety of work arrangements in the Australian labour market and case by case assessment may be necessary.

Casual employment is not to be considered to count towards meeting the two year work experience requirement.

Industry specific advice

Masters and/or PhD

Experience gained as part of a Masters and/or PhD may be considered as work experience for relevant occupations, such as medical and research occupations.

School placement

Experience gained whilst studying, through a formal arrangement such as a clinical/industry placement, internship or apprenticeship that is undertaken as part of a CRICOS registered course of study, may be considered as work experience where it is relevant to the occupation**. This includes, but is not limited to:

  • For medical practitioners, experience gained through internships or the final year medical training, including periods of clinical placements
  • The internship component of the Professional Year Program

Experience that has been gained whilst studying, through a formal arrangement such as a clinical/industry placement, internship or apprenticeship that is outside of a CRICOS registered course of study, must be undertaken at the skill level of the relevant occupation to be considered as work experience.

Performing arts

Performance experience gained whilst studying may be considered for applicants with a performing arts occupation. This flexibility is intended to recognise performers that may have exceptional talent and are in demand globally.

Other niche occupations

Industry experience may be considered for niche or generalist occupations where it is relevant and skills are transferable. For example, management consultants or specialist technology positions.

The TSS 482 visa is a very complicated application to engage in and is given a lot of attention by the DOHA during processing do to the amount of fraud that was occurring on the 457 visa. We recommend any sponsor or sponsored employee to book a consultation to speak to our visa specialists, even if to just understand what the contract they are getting themselves into mean. Call +61 2 8054 2537, 0434 890 199 or book online.