As there are many essential and complicated requirements that must be fulfilled when applying for a Temporary Skill Shortage (TSS) 482 visa (subclass 482). We have split this article into two parts.
- Genuine need requirement
- Contract and employment requirements
- Labour Market Testing (MLT) requirement
- Work experience requirement
- Salary requirement (ASMR)
- Non-discriminatory recruitment practices requirement
- Skilling Australians Fund (SAF)
- No adverse information
The market salary rate requirement has been redefined. Employers will now need to understand and meet Annual Market Salary Rate (ASMR). Temporary Skilled Migration Income Threshold (TSMIT) requirements still apply. TSMIT is the same as it was for the Temporary Work (Skilled) 457 visa, but now applies to the TSS 482 visa.
The regulations surrounding salary requirements are to protect both the nominee as well as Australian permanent residents and citizens. It ensures that the appropriately skilled nominees are paid a fair wage and rejects the undercutting of the local Australian local labour market.
- ASMR has been determined according to Department of Home Affairs (DOHA) standards
- ASMR excluding non-monetary benefits at least meet the TSMIT
- Nominees annual earnings meet or exceed the ASMR
- Exemptions apply for roles for which the nominee’s annual earnings are at least AUD$250,000
- Nominees Annual earnings, excluding non-monetary benefits at least meet the TSMIT
It is important to understand that the DOHA will be comparing what the nominee is proposed to be earning against what an equivalent Australian worker would. As such ASMR and annual earnings are not the same thing. An equivalent Australian worker:
- Is an Australian permanent resident or citizen
- Is employed in the same workplace as the nominee
- Is employed in the same location as the nominee
- Is performing equivalent work to the nominee
ASMR refers to the earnings of what an Australian makes, or would make, for performing equivalent work on a full time basis for a year in the same workplace at the same location
Annual earnings refer to the guaranteed earnings that the nominee would make in the nominated position
ASMR appropriately determined
Where a fair work instrument, state industrial instrument or transitional instrument exists for an equivalent Australian worker, the ASMR is the annual earnings of the Australian worker in that instrument. The name of the agreement or award should be identified along with the salary level/occupation group that applies to the nominated occupation.
Where no fair work instrument, state industrial instrument or transitional instrument exists but there is an equivalent Australian worker, the ASMR must be determined based on relevant employment documents. This includes employment contracts and pay slips for other Australian workers performing equivalent work in the workplace.
Where no fair work instrument, state industrial instrument or transitional instrument exists and there is no equivalent Australian worker, an explanation of how the ASMR has been determined must be provided. It should be supported with the following documental evidence such as:
- Job Outlook information (www.joboutlook.gov.au)
- Advertisements from the last six months for equivalent positions in the same location
- Remuneration surveys completed by a reputable organisation
- Written advice from registered unions or employer associations.
If the market salary rate determined is a range, the sponsor must explain and provide specific details regarding why the particular AMSR has been selected.
The DOHA will pay closer attention to applications where:
- The nominee’s annual earnings are AUD$65,000 or less
- The nominee’s salary package contains significant non-monetary benefits
- The market salary evidence presented reflects a wide range of salary data and/or inconsistent information
Monetary benefits for the equivalent Australian worker must must meet or exceed TSMIT
ASMR excluding non-monetary benefits should meet or exceed the TSMIT, which is currently at AUD$53,900 as of 15 May 2018.
Non-monetary benefits include items that the sponsor may provide the nominee such as accommodation, clothing, meal, travel allowance and so forth. These cannot be included when calculating the ASMR.
The nominee’s annual earnings must meet or exceed the ASMR
There are no conditions under which this requirement can be waived. In the event that a nominee’s proposed annual earnings fall under the ASMR, the nomination application will be refused.
Monetary benefits for the nominee must must meet or exceed TSMIT
It follows that if the ASMR meets or exceeds the TSMIT and the nominee’s annual earnings meet or exceed the ASMR, this condition will be met. Non-monetary benefits cannot be including in the calculation of the nominee’s annual earnings.
ASMR determination is inconsistent with labour market conditions
Situations that may cause the DOHA concern include but are not limited to:
- There being no equivalent worker and the advertising provided to demonstrate the AMSR lacks any details regarding the advertised position, appears to be for a significantly different position and/or a position offered on significantly less favourable employment terms and conditions, and/or there are concerns about the job advertisements provided being fabricated
- The AMSR determined, is significantly lower than what would be expected based on available information from reputable sources (e.g. joboutlook)
This is assessed on a case by case basis and the DOHA will examine the application and circumstances in full to decide if it is reasonable to disregard these potential causes for concern.
Less favourable employment conditions
It is also important that other employment conditions are no less favourable for the nominee than it would be for an equivalent Australian worker. This is generally taken to be satisfied as all Australian employers are required to comply with all relevant workplace laws. Sponsors are also required in their contracts to guarantee that they are employing the nominee in conditions that are consistent with workplace laws.
However if information is available to the contrary, such as information concerning annual paid leave, salary deductions or other adverse information relating to employment conditions, the DOHA will engage in further investigations.
Non-discriminatory recruitment practices requirement
Making a standard business sponsor (SBS) application requires an attestation signed stating that the sponsor have a demonstrated commitment to employing local labour and declare they will not engage in discriminatory recruitment practices.
When applying for a TSS visa, the DOHA must be satisfied that the standard business sponsor has not engaged in discriminatory recruitment practices. This is known as the ‘non-discriminatory workforce test’. Generally the ‘workforce test’ is taken to be satisfied without inquiry, unless there is reason or evidence to doubt this. This may come in the form of an allegation being received or information discovered in the assessment of the application and we discuss possible scenarios in which the DOHA will pursue investigation further in the article.
Certain applications will require the Labour Market Testing (LMT) requirement to be met. Applications that have met this requirement will be taken to not have engaged in discriminatory recruitment practices. However if a large percentage of the sponsor’s workforce is made up of temporary visa holders that did not have to fulfil the LMT requirement, the DOHA may choose to take a closer look.
The non-discriminatory recruitment practices requirement is also imposed as a sponsor obligation; a standard business sponsor must not engage in discriminatory recruitment practices so long as their sponsorship remains valid. Failure to do so may lead to the bar or cancellation of their sponsorship approval.
Discriminatory recruitment practices
The DOHA defines discriminatory recruitment practices to be recruitment practices that directly or indirectly discriminates against a person based on the immigration status or citizenship of the person, other than a practice undertaken to comply with a Commonwealth, State or Territory law. That is, the abuse of the TSS visa program to hire overseas workers without regard to the availability of Australian citizens or permanent residents. Discrimination can be direct or indirect.
Direct discrimination: When a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics. An example is when a sponsor only interviews and hires persons of a certain visa status, and disregards all other applicants despite their having the same qualifications.
Indirect discrimination: When there is an unreasonable rule or policy that is the same for everyone but has an unfair effect on people who share a particular attribute. An example is when a sponsor places advertisements only in Indian newspapers and the advertisement is in an Indian language, rendering it inaccessible to those who do not know the language, despite the job not requiring knowledge of the language.
Further examples of discriminatory recruitment include but are not limited to:
- Only interviewing or hiring people who have a certain citizenship or visa status
- Only advertising a position on a platform that is mostly accessible by persons of a certain citizenship, such as foreign language newspapers or websites used by persons outside Australia
- Not having a competitive recruitment process that affects people of a certain citizenship or visa status
The following are not considered to be discriminatory recruitment practices for the purpose of monitoring this obligation are:
- Intra-company transfers from an overseas related business
- Internal recruitment and promotion within Australia
- Re-nomination of a currently sponsored person.
When the DOHA investigates
The DOHA may choose to inquire further into a sponsor if they have suspicions of discriminatory recruitment practices. This could happen for a number of reasons. Here are some examples:
- An analysis of the staff profile of the sponsoring business shows a high proportion of overseas workers compared to Australian workers.** It does not matter which visa subclass the overseas worker holds.
- Sponsor has a high number of visa holders that are largely from the same nationality, it does not matter which visa subclass the overseas worker holds
- Allegations received by the DOHA that the sponsor is giving preference to workers from a particular citizenship or visa status or engaging in recruitment practices
- Allegations received by the DOHA that the sponsor is terminating workers and hiring or replacing them with workers from a specific country.
** The DOHA will take into consideration what a high percentage of overseas workers could be a reasonable proportion, depending on the context, the size of the business and other factors, such as geographic location. It is also understood that legitimate reasons exist, such as specific job requirements or a business need:
- Particular language requirements that favour a particular country’s citizens
- Skills or experience that favour a group of persons from a particular region or country
- Internal promotions or transfers, including intra-corporation transfers from one country to Australia)
If the above applies to your company it would be helpful if information explaining your business circumstances was provided in the application.
If the DOHA has a reason to investigate, they will look at recruitment practices in the period during which the person was an approved sponsor.
Is it important that the sponsor should keep documents on hand that demonstrate how the sponsored position was recruited and that this process did not discriminate based on citizenship or visa status. If they are unable to, they may fail on another sponsorship obligation, which the “Obligation to provide records and information”. As discussed in our previous article, multiple failures to satisfy obligations will worsen the case for the sponsor and the DOHA may choose to take action by barring or cancellation their sponsorship approval.
Also remember that the DOHA will look at the recruitment practices of each nomination separately, and as such sponsor may be found to have failed to satisfy the obligation numerous times.
This is the evidence you should keep and that you will need should the DOHA decide to investigate:
- Payroll evidence showing employment of a diverse range of employees
- Evidence of Australians working in similar job roles, for the same business or an associated entity
- Recruitment advertisements that demonstrate that jobs were clearly advertised through a platform that is accessible to most residents in Australia, such as being written in English and published on a common platform that many Australians use
- Advertisements published in Australia and not solely outside Australia
- Evidence of a competitive recruitment process
- Clear position selection criteria that correlates with the skills and qualifications relevant to the job. It should not contain information that could discourage applicants based on their nationality, such as language requirements or cultural knowledge that is not required to fulfill the role.
- Evidence that demonstrates a lack of suitably qualified applicants in the local area. Regional areas may suffer this circumstance as it may have a lower skill base and hence a smaller number of suitable candidates who are available for the role
- Other credible evidence demonstrating a legitimate reason for the recruitment outcome
Skilling Australia Fund (SAF)
Meeting Training Benchmarks is no longer a requirement for new Standard Business Sponsorship (SBS) applicants or TSS nomination applications. A contribution to the Skilling Australians Fund (SAF) is required instead and came into effect on 12 August 2018. It is a foreign worker levy that is to be imposed on businesses who sponsors and has in their current employ, an overseas worker holding a TSS 482 visa.
Holders of the 457 visa who require a new nomination under the TSS 482 visa to change employer or occupation will also be implicated by the fee.
This fee must be paid at the time of nomination. It is a cost that cannot be transferred by the employer to the applicant.
The SAF is a training fund that will be administered by the Department of Education and Training for apprenticeships and traineeships in occupations that are in high demand and currently rely on skilled migration or have future growth potential, including in regional Australia.
Small business (under AUD $10 million in annual turnover)
TSS: AUD $1,200 per year of the proposed visa period
RSMS/ENS: AUD $3,000 one off payment
Other businesses (AUD $10 million and above in annual turnover)
TSS: AUD $1,800 per year of the proposed visa period
RSMS/ENS: AUD $5,000 one off payment
A business has an annual turnover of less than AUD $10 million per year and wants to sponsor an applicant for the medium term TSS 482 visa for a period of four years. They will need to make a contribution of AUD $1,200 for each year of the proposed term totalling AUD $4,800.
Annual turnover for Australian businesses is defined as the total ordinary income from the most recent income year ending before nomination day. For businesses outside of Australia, annual turnover is the total income in the most recent financial year (financial year may vary with country). Nomination day is taken to be the day the application is lodged.
The only exception is the nomination is made under a labour agreement and the nomination is for the occupation of Minister of Religion or Religious Assistance.
Refunds are available under specific circumstances:
- The nomination needs to be withdrawn for specific reasons and it is withdrawn before a decision on the application is made. Reasons include:
- Information in the nomination being incorrect, such as the proposed visa period or is in relation to the businesses annual turnover, which would result in the nomination training contribution charge being incorrect
- The standard business sponsorship application was withdrawn or refused
- Information in the nomination relates to the wrong occupation or wrong stream for the Temporary Residence Transition (TRT) stream ENS 186 or RSMS 187 visa
- The nomination is approved but the applicant is refused a visa on health or character grounds
- The nomination is approved and the applicant is granted a visa but for reasons outside the employer’s control, the visa holder does not commence work in the position
- The nomination is approved and the applicant is granted a visa but employment within in under 12 months. This refund is only available for temporary visas and the refund will be partial; less the first year of the levy.
Underpayments of the nomination training contribution charge (contribution to SAF) must be resolved before another nomination by that employer can be approved.
The definition of adverse information has been amended to include any information relevant to a person’s suitability as a sponsor or nominator. The definition also includes a non-exhaustive reference to the provision of bogus documents or false or misleading information. It is a criterion at each stage of the application – SBS application, nomination application and visa application.
The DOHA must be satisfied that there is no adverse information known about the proposed sponsor or nominator, or a person associated with them, unless it is reasonable to disregard any such information. We discuss the definition of associated with later in the article, as well as when it is reasonable to disregard adverse information. Adverse information includes information that:
- A person has contravened a law of the Commonwealth, State or Territory
- A person is under investigation, subject to disciplinary action or subject to legal proceedings
- A person has been a subject of administrative action
- A person has become insolvent
- A person has provided bogus documentation or information that is false or misleading in a material particular
- Other adverse information
Contravened a law of the Commonwealth, State or Territory
This refers to a record of offences or a contravention of a Commonwealth, State or Territory law related to one or more of the matters referred to below:
- Industrial relations
- Occupational health and safety
- People smuggling and related offences
- Slavery, sexual servitude and deceptive recruiting
- Child abuse
- Trafficking in persons and debt bondage
Under investigation, subject to disciplinary action or subject to legal proceedings
If the applicant is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such law, this is would be considered as adverse information, even if they have not been charged. In such a case the DOHA will either send a natural justice letter, inviting the applicant to comment on the adverse information, or will delay processing the visa .
Subject of administrative action
A person has been the subject of administrative action if the Australian Border Force (ABF) has:
- Barred or cancelled the sponsor due to breaches of their sponsorship obligations in the past,
- Issued the sponsor with a formal warning for breaching their sponsorship obligations, and/or
- Issued the sponsors with an infringement notice for breaching sponsorship obligations, or in relation to migration and/or customs offences such as employing illegal workers or individuals in breach of their visa conditions and/or importation offences
It would also include information that the sponsor has:
- Been issued with an Illegal Worker Warning Notice (IWWN),
- Failed to comply with their obligations under the Australian Trusted Trader program, or
- Been issued with an infringement notice by the Fair Work Ombudsman (FWO) for possible contraventions of the Fair Work Act 2009
Bogus documentation or information that is false or misleading
This is covered under PIC 4020 and may result in your being banned from further visa applications for 3 or 10 years.
Read: PIC 4020
Other adverse information
Such information could include but is not limited to:
- The DOHA has received numerous, similar allegations against the employer in relation to migration fraud, including allegations regarding payment for visa activities which appear to be credible
- There is adverse information in the public domain, including in the media, that brings into question the person’s suitability as an approved sponsor or nominator
- The applicant is an employer and there is evidence suggesting that the organisation is in substantial financial difficulty and has outstanding debts that they are unable to pay
Adverse information doesn’t only involve the applicant. Any association of the applicant with another person who is discovered to not meet the adverse information criteria will also affect the applicant. Two persons are associated with each other if:
- They are or were spouses or de facto partners;
- Are or were members of the same immediate, blended or extended family;
- They have or had a family-like relationship;
- They belong or belonged to the same social group, unincorporated association or other body of persons;
- They have or had common friends or acquaintances;
- One is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other, or any corporation or other body in which the other is or was involved (including as a director, an officer, employee or member);
- A third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them;
- They are or were related bodies corporate ;
- One is or was able to exercise influence or control over the other; or
- A third person is or was able to exercise influence or control over both of them
The definition of associated with, as you can see, is rather broad, being that a person or other entity having or being related, linked or connected to each other in some way equates to being associated. This relationship, link or connection may have been a past or current association. It could even include two organisations operating out of the same location.
Reasonable to disregard
As situations are not always cut and dry, the DOHA will provide some leeway in adverse information when it is not serious. What are some examples of when the DOHA may choose to disregard adverse information?
- The applicant only received a ‘warning’ in relation to their conduct and there is no evidence that they have since been non-compliant
- The applicant has been barred for a shorter period by the ABF (less than two years) and there is no evidence that they have since been non-compliant since the expiry of the bar
- The applicant received a more serious penalty for previous action but has:
- Taken steps to negate the implications of relevant conduct or practices
- Developed practices and procedures to ensure the relevant conduct is not repeated
- The applicant has an overall record of ‘good behaviour’ but is being investigated for less serious issues, following receipt of an unsubstantiated allegation
- The persons to whom the adverse information relates have no influence over the conduct of the applicant’s partnership or association (for example, silent partner)
It is impossible to cover every situation and so as a guideline, the DOHA will consider the following factors when deciding if it is reasonable to disregard any adverse information:
- The nature and seriousness of the adverse information
- Whether the adverse information was recent or a long time ago
- How the adverse information arose, including the credibility of the source of the adverse information
- Whether the allegations have been substantiated or not, such as whether the person is undergoing investigations or has been convicted
- Whether the applicant has acknowledged the issues with their previous behaviour and can improve
- Whether the applicant has provided evidence to demonstrate that they have rectified any issues where relevant (such as repayment of monies to an underpaid employee) and taken steps to ensure the circumstances that led to the adverse information do not recur
- Whether the applicant has demonstrated subsequent compliance
- Whether the conduct of concern is likely to recur
- Information about relevant findings made by a competent authority on the adverse information
- Whether there are any compelling circumstances affecting the interests of Australia
Condition 8607 is a mandatory condition and it requires that the holder must work only in their nominated occupation for which they were granted their TSS visa. Condition 8607:
- The visa holder must only work in their nominated occupation for which their TSS visa was granted
- The visa holder must commence work within 90 days of their visa grant or arrival in Australia
- The visa holder must not cease employment for more than 60 consecutive days
- The visa holder must continue to hold any relevant occupational licenses, registrations and memberships
Work in their nominated occupation
In the case of a short-term or medium-term stream TSS with an Australian business sponsor, the visa holder must only work for their sponsor in their nominated occupation, but may work in a position in their sponsor’s business or an associated entity of their sponsor.
In the case of short-term or medium-term stream TSS with an overseas business sponsor, the visa holder must only work for their sponsor’s business in their nominated occupation.
If labour agreement stream TSS, the visa holder must only work for their sponsor in their nominated occupation. On hire arrangements to third parties are permitted so long as salaries are paid to the sponsoring employer.
This means that if the visa holder would like to work in a different occupation from which they were nominated or change employer, they will need to apply for a new TSS visa. If the new TSS has been granted but the visa holder has contractual obligations to fulfil, such as completing their notice period, they will not be in breach of condition 8607.
An exception exists for the nominated occupations General Manager, Chief Executive or Managing Director and all medical occupations. Visa holders that have TSS visas approved in these occupations are not restricted to work only with their sponsor.
Commence employment within 90 days
If the visa holder is in Australia at the time of their TSS visa grant, they are required to commence work with their sponsoring employer in their nominated occupation within 90 days of the grant. If they are outside of Australia, they are required to commence work within 90 days of their arrival in Australia.
It is part of the sponsor’s obligations to notify the DOHA if the visa holder does not commence work at the agreed time.
Cease employment for not more than 60 consecutive days
If the visa holder has ceased working for their sponsoring employer, they have those 60 days to search for a new sponsor or leave Australia.
Situations may occur where the visa holder may request for an extended period of leave during which they will not be remunerated. Examples of reasons for leave without pay (LWOP) may include study, sabbatical leave, recreational or holiday leave with no pay, sick leave without pay or maternity/paternity/carer leave. LWOP that is agreed upon between the visa holder and their sponsoring employer will not result in the breach of Condition 8607. Make sure that any such arrangements are properly documented and have gone through formal channels.
Licence, registration or membership
The visa holder is required to hold any licences, registrations or memberships that are mandatory to their performing in their nominated occupation in the location in which the visa holder’s position is located and must do so:
- Within 90 days of the visa grant, if the visa holder is in Australia at the time of the grant
- Within 90 days of their arrival in Australia, if the visa holder is outside Australia at the time of the visa grant
The visa holder must also:
- Continue to hold the authorisation while their are performing the occupation
- Notify the DOHA in writing as soon as possible if their application for the authorisation has been refused
- Comply with all conditions or requirements that their authorisation is subject to
- Not engage in any work that is inconsistent with their authorisation, including work that may be in breach of the conditions or requirements of their authorisation
- Notify the DOHA in writing as soon as possible if the authorisation ceases to be in force or is revoked or cancelled
In this two part special we have covered the key requirements in making a TSS 482 application. As you can tell it is an intensive and difficult application. There are still many smaller requirements that we have not covered. The TSS application will increase in its complexity when families and alternate work situations come about. We recommend any sponsor or sponsored employee to take the time to understand the TSS 482 visa as well to see what your pathway to permanent residency, if you so wished, would look like. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.