Recent Reforms

It's been a long time coming but the Subclass 457 Visa has now been replaced by the Subclass 482 Temporary Skills Shortage Visa. New legislation came into effect on 18th of March 2018. The below post details the major changes and how these may affect you or your business.

 

Subclass 482 - TSS Changes

SBS

  • All sponsorships (including start ups and accredited sponsors) will be approved for 5 years.

If you are a start-up business (less than 12 months operation) and have been putting off the application process, due to a shorter approval period and subsequent re-application process, now there is no need. If your business is having trouble attracting local staff and you have proof to back this up, get in touch to see how we can help you get the process underway.

There are substantial benefits to becoming an accredited sponsor, such as auto-approval of nominations and priority processing. Accredited sponsors can also now provide a letter confirming that the applicant is of good character and that they have not been convicted of any criminal offences, as an alternative to providing police certificates. If you would like to see if your business meets the criteria for accreditation get in touch and we can assess your eligibility.

  • Australian sponsors will be able to auto-renew their SBS.

Auto-renewal for a business who already has an SBS will be a big plus, and implementation of the SAF will potentially make the process less arduous. Companies can also check their sponsorship approval period online. Formerly we were required to contact the Department for this information, if for any reason the SBS approval letter could not be located.

  • Renewal should be done approximately 2 months prior to the expiry date.

If you are unsure when your sponsorship is expiring it is advisable to find this out (or ask us and we can find out for you) so necessary arrangements can be made to lodge the renewal in a timely fashion. New term for SBS approvals will start immediately after current SBS expires. Simply Visas can assist you with the renewal process and will offer discounted rates for a repeat application.

  • New form to be released in ImmiAccount for sponsors to make changes, sponsorship approval period will also be available in ImmiAccount. Sponsors must also now notify if the employee does not start work.

This initiative will make it easier for companies to report changes, it will also make compliance reporting simpler as ImmiAccount will provide a record of all changes notified and the dates.

  • As of 18 March 2018, the requirement that new SBS sponsorship applications meet either Training Benchmark A or B is removed.

Currently awaiting implementation of the SAF. Information recently released from the Department indicates that no training evidence is required for new SBS and TSS nominations from 18 March 2018 until the SAF is implemented.

  • SBS training obligations remain the same for existing sponsors.

Existing sponsors are required to meet the training benchmarks in line with their current agreement. Now would be a good time to review your sponsorship approval and ensure that benchmarks have been met, Simply Visas can assess the business to see exactly where you stand. 

 

NOMINATION

  • The list that is in effect at date of lodgement of nomination is what determines eligibility.

Please click here, for the most recent Combined current list of eligible skilled occupations (27/03/2018). Updated lists are expected to be released again in July 2018.

  • Only available for full-time positions.
  • Regional employers now receive priority processing of TSS nomination and visa applications
  • When introduced, the SAF Levy will be collected by Home Affairs. It will be payable in full at the time the TSS nomination is lodged, in addition to the nomination application fee. For businesses with a turnover of: less than $10M –the SAF contribution will be $1200 per year & for $10M or more –the SAF contribution will be $1800 per year. SAF Contributions are tax deductible.

The bills to implement the SAF are currently before parliament. Until it is introduced sponsors are required to meet their training obligations in line with the ‘old rules’.

  • Must provide period of nomination. ST Path = 1 or 2 years. MT Path = 1, 2, 3 or 4 years.

This allows the Department to determine the SAF payable.

  • Evidence of English language may be requested for TSS Nominations for existing 457 Visa holders.

If you intend to take on a skilled overseas worker within your business, it may be worthwhile checking in advance to ensure that they meet the English language requirements before proceeding to an offer as it is possible the Department my request this information.

  • Employment Contract must comply with the laws of the Commonwealth, State or Territory related to employment, including National Employment Standards if applicable.

For this reason, employers are encouraged to review their standard employment contact and refer to the Fair Work Commission to ensure this requirement can be met, prior to issuing the employment contract to your potential worker.

  • Labour Market Testing will be required for all occupations unless International Trade Agreement applies.

There are now much stricter requirements around what is acceptable to evidence Labour Market Testing. Employer’s are encouraged to contact us in advance to discuss these requirements in detail to ensure the best chance of a successful outcome.

  • Annual Market Salary Rate (AMSR) has now been defined in legislation - “means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location”.
  • The AMSR must not be less than Temporary Skilled Migration Income Threshold (TSMIT), currently set at $53,900 per annum.
  • Department can disagree with the calculation of the AMSR if they have information that the calculation is inconsistent with Australian labour market conditions.

In order to ensure that salary calculations/evidence/terms and conditions of employment, meet the required standards, contact Simply Visas so that we can discuss your individual circumstances.

 

TSS VISA

  • Different VACs for different streams ($1150 ST; $2400 MT).
  • If skills assessment is mandatory, must have commenced process.

It is important to note that this skills assessment process must be initiated, and the applicant must have proof of this to attach to the application.

  • Schedule 3 requirements removed from TSS visa, however applicant must hold substantiative visa or BVA/B/C at time of application.

Schedule 3 criteria needs to be satisfied where it has been more than 28 days since the applicant held a substantiative visa. Removal of this criteria will certainly make things easier for applicant’s who fall in this category as proving exceptional circumstances outside of the applicant’s control requires a detailed submission.

  • Can not lodge onshore if the applicant has held more than one ST visa and they were onshore at time of lodging last application.

If you are an employer it is worthwhile checking the skilled worker’s visa history in advance, this means you will have sufficient time to prepare should they be required to depart Australia.

  • Must have worked in nominated occupation for at least 2 years, in the last 5 years.
  • Higher English requirements for the MT stream (IELTS 5 in each test). ST is average 5 with 4.5 in each test.
  • ST Occupations now have to meet the Genuine Temporary Entrant (GTE) requirements. It will generally be considered met unless the primary visa applicant has: held more than 2 x TSS visas in the ST stream in the last 5 years OR they have been in Australia for 4 years and the decision maker has concerns they are not a GTE.

GTE requirements formerly only applied to student and visitor visas, whether or not these requirements can be met will depend on the individual and their visa history. It could prove difficult for individuals who have spent a significant period of time in Australia prior to submission of the TSS visa.

  • Condition 8607 will apply. This condition is similar to Condition 8107 however it will require TSS visa holders who want to change occupation to lodge a new TSS Nomination & TSS Visa (previously only a new nomination was required for change in occupation, providing evidence of skill level was provided).

Further details on Condition 8607 can be found here.

 

LABOUR AGREEMENTS

  • Term of approval with be 5 years

Formerly, a Labour Agreement was only in place for 3 years. The new legislation dictates that nomination ceilings will be confirmed for the first 3 years. The business will then have to negotiate years 4 & 5 prior to the end of the third year.

  • The VAC will be $2,400 for all visa applications (regardless of the stream)

Unlike with the standard business sponsorship, where there are 2 different VACs depending on the occupation list, the fee is the same for all TSS visas lodged via a Labour Agreement.

  • Labour Marketing Testing information must accompany nomination application

Previously Labour Market Testing was completed at the application stage and no further evidence was required at the time of application.

  • Salary for employees nominated via a Labour Agreement must at least $65,000 per annum excluding superannuation

The Temporary Skilled Migration Income Threshold (TSMIT) no longer applies to TSS applications lodged via a Labour Agreement.

  • Leave Without Pay (LWOP) of more than 60 days is not possible without prior written permission from the Department

Before granting leave to an overseas worker who is sponsored via a Labour Agreement, the employer must contact the Labour Agreement section via email and provide a copy of the signed leave form. The employee must not commence leave until the request has been approved. Employers are therefore encouraged to communicate this to employees in advance to ensure that salary and visa conditions are not breached.

  • RSMS Subclass 187 is no longer available via the Labour Agreements stream – this is due to very low usage

If you are interested in finding out more about Labour Agreements and how this option may be of benefit to your business, we welcome the opportunity to assess your options in detail.

 

TRANSITIONAL ARRANGEMENTS

The following applications lodged BEFORE 18th of March 2018, will be processed under the 'old rules';

  • Standard Business Sponsorship applications
  • Nominations for existing 457 visa holders
  • Nominations for visa applicants (if the related 457 visa application was also lodged prior to 18th of March 2018)
  • 457 Visa applications

If you have a 457 Nomination application that was submitted prior to 18th of March 2018 and it does not have a related visa application. If;

  • it was still undecided as at 18th of March 2018, it will be finalised and the VAC refunded
  • it was approved prior to the 18th of March 2018, it will become redundant (as it cannot be linked to a new TSS visa application) and withdrawal and refund can be requested

The information and opinions expressed above should not be treated as immigration assistance, immigration legal assistance or legal advice. If you require advice specific to your circumstances, please contact us for a free initial consultation. 

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