The market salary rate requirement has been redefined for the Temporary Skill Shortage (TSS) visa (subclass 482), Employer Nomination Scheme (ENS) visa (subclass 186), Regional Sponsored Migration Scheme (RSMS) visa (subclass 187). Now employers will need to meet the Annual Market Salary Rate (ASMR). Temporary Skilled Migration Income Threshold (TSMIT) requirements still apply. These altered salary requirements came into effect on 18 March 2018 with the introduction of the new 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.
Equivalent Australian worker:
- 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.
Do you know how to correctly evidence your nomination application for salary requirements? This can be particularly tricky if there is no equivalent Australian worker or where the position is niche. It is highly recommended that you consult experienced migration specialists so that your application gets its best chance, especially with how keen an eye the DOHA currently has on employer sponsored visa applications.