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Workers

  

Temporary Work visa

The Temporary Skill Shortage (Subclass 482) visa enables employers to address labour shortages by bringing in genuinely skilled workers where they cannot source an appropriately skilled Australian.  The Subclass 482 visa replaced the Suclass 457 visa on 18 March 2018.

The Subclass 482 visa has two main Streams:

Short-Term Stream:  2 year visa with capacity for visa renewal onshore once only but no permanent residence pathway (STSOL applies and IELTS 5 overall score with 4.5 in each component [or equivalent test])

Medium-Term Stream:  4 year visa with capacity for visa renewal onshore and permanent residence pathway after 3 years (MLTSSL applies and minimum IELTS 5 in each component [or equivalent test])

There is a third Stream for Labour Agreement sponsors (this stream is available if the employer has entered into a labour agreement with the Department of Home Affairs).  The Labour Agreement stream may be an option but it is a costly and lengthy process, it is not for unskilled labour and the positions must be at the ANZSCO Skill Level 1 (managers), Level 2 (professionals), Level 3 (technicians and trades workers) to Level 4 (community and personal service workers).

Sponsoring a foreign worker in Australia involves 3 Steps:

Step 1:  Sponsorship Application

Step 2:  Nomination Application

Step 3:  Visa Application

  

Sponsorship Application

The business needs to be approved as a Sponsor in order to employ skilled foreign workers by lodging a Sponsorship application.

The following requirements must be met for a business to become a Sponsor:

•   be lawfully operating (whether in or outside Australia)

•   demonstrate commitment to employing local labour

•   not engage in discriminatory recruitment practices

•   not subject to adverse information (about the business or any person associated with business)

•   if lawfully operating business outside Australia the Nominee intends to:

    ‒   establish, or assist in establishing, on behalf of applicant, a business operation in Australia
          with overseas connections or

    ‒   fulfil, or assist in fulfilling, a contractual obligation of the applicant.

  

Nomination Application

Employers nominate the position they wish to be filled by the skilled foreign worker by lodging a Nomination application.

To be approved, an eligible nominated position must meet the following requirements, it must:

•   proposed employee must be nominated in an eligible occupation which is listed in the STSOL     (2 year visa) or the MLTSSL (4 year visa)

•   meet direct employer requirements (be in the business or related business)

•   ensure equivalent terms and conditions of employment (including, be remunerated at the     annual market salary rate (AMSR) which is greater than the Temporary Skilled Migration     Income Threshold (TSMIT) of A$53,900)

•   meet the labour marketing testing requirement (see below), unless exempted (includes,     international trade obligation exemptions)

•   position associated with the nominated occupation must be genuine and full-time

•   meet any occupational caveats

•   not subject to adverse information (about the business or any person associated with business)

•   non-discriminatory workforce test to ensure employers are not actively discriminating against     Australian workers

•   contribution towards the Skilling Australians Fund (SAF) for each nominee and paid for each      year sponsored

  

SAF Training Levy

To enable employers to sponsor skilled foreign workers the SAF training levy is payable from 12 August 2018 at the time of lodgement of the 482 Nomination application.

Contribution towards the SAF training levy for each 482 Nominee and payable by the employer is:

  Visa Subclass

Business Turnover
(under 10 million)

Business Turnover
(10 million or more)

  Subclass 482 visa (paid each year)

A$1,200.00

A$1,800.00

  

The SAF training levy replaced the Training Benchmark requirements for businesses who sponsor applicants for employer sponsored visas.  There are no exemptions for the SAF training levy, except for religious workers nominated under the Labour Agreement (LA) streams. 

All other sponsors, including those who are party to a Labour Agreement, must also pay the SAF training levy.  Refunds will be available for certain circumstances.  The SAF training levy cannot be passed onto or recovered from the 482 Nominee.  I understand that the levy is tax deductible but please consult a Tax Accountant.

  

Labour Market Testing (LMT)

Sponsors must provide evidence of attempts to recruit suitably qualified and experienced Australians, unless an International Trade Obligation (ITOs) applies or alternative evidence (includes, intra-corporate transferee) applies.  If this evidence does not accompany the 482 Nomination application, it will be refused.

In most cases, the nominated position must be advertised in Australia within previous 4 months and the advertisements must be in English and must run for at least 4 weeks (>28 consecutive calendar days) and include the relevant position information.  Please note, the advertisements must have accepted applications or expressions of interest for at least 4 weeks after first published.

  

Redundancies or retrenchments

If an Australian citizen or permanent resident has been retrenched or made redundant by the business, or an associated entity of the business, within the 4 months prior to lodging the Nomination application, the business must also provide information about those redundancies or retrenchments.  The business must have undertaken labour market testing after those redundancies or retrenchments, and must provide information and evidence of that labour market testing with the Nomination application.

  

Visa Application

The skilled foreign worker (Nominee) applies for a Subclass 482 visa.

The Nominee applying for this visa must:

•  be nominated for a position by an approved Sponsor and that nomination has been approved

•  have skills, qualifications, experience and an employment background which match those     required for the approved nominated position (ANZSCO Skill Level)

•  if required complete a skills assessment conducted by Trades Recognition Australia (specified    trade occupations)

•  if required complete a skills assessment (nominated occupation is Program or Project    Administrator (ANZSCO Code 511112) or Specialist Managers nec (ANZSCO Code   139999))

•  position associated with the nominated occupation must be genuine and full-time

•  meet English language proficiency requirements, unless exempted

•  if the nominated occupation is a Medical Practitioner, the applicant’s qualifications must be    recognised by the relevant authority in Australia for the registration of medical practitioners as    entitling the applicant to practise as a medical practitioner

•  satisfy genuine temporary entrant requirement (Short-Term Stream only)

•  demonstrate at least 2 years of work experience relevant to the nominated occupation 

•  if in Australia, hold a substantive visa or  Bridging A visa or Bridging B visa or  Bridging C visa

•  have substantially complied with any conditions that apply or applied to your current/last visa

•  meet health requirements

•  mandatory provision of police clearance certificates

•  hold health insurance or a Medicare card

•  meet the requirements of the stream in which you apply

There is no age requirement for this visa.

Visa applicants are able to include their spouse/de facto partner and their children in their temporary residence visa application or they can apply separately.

It is the most commonly used program for employers wishing to sponsor foreign workers to work in Australia on a temporary basis.

We recommend that both employers and visa applicants engage a competent Australian Registered Migration Agent to assist with the preparation of sponsorship, nomination and Subclass 482 visa applications to ensure that they are carefully prepared and appropriately processed with minimum delay.  We can assist you with your recruitment of skilled foreign workers by expertly managing the application process.  

  

Designated Area Migration Agreement

A pilot Designated Area Migration Agreement (DAMA) project is set to be launched in Darwin and negotiations are underway for a similar scheme in the Pilbara in north-west Western Australia.

It will allow employers outside of the resources sector to employ semi-skilled workers from overseas for jobs in areas like cooking or truck driving.

It is fundamental to the DAMA being approved that all positions undergo labour market testing.  Other requirements include, language, salary and training requirements.

The DAMA replaces the Regional Migration Agreement (RMA). DAMAs will have a broader and more flexible application than RMAs. They are designed to assist areas experiencing skill and labour shortages to supplement their workforce. They also provide states, territories and regions, with an additional workforce planning tool to support economic performance and help them adjust to changing economic conditions. They are not limited to regional areas. 

  

Employing Legal Workers

It is the responsibility of all Australian businesses to employ legal workers.  Legal workers are Australian citizens, Australian permanent residents and people in Australia with a valid visa that allows them to work. This includes New Zealand citizens.

Not everyone is allowed to work.  Some Australian visas do not allow non-citizens to work whilst in Australia. People who no longer hold a valid visa are also not allowed to work in Australia.

All Australian businesses should check that the workers they use are allowed to work (includes both paid and unpaid work) and is regardless of whether workers are sourced directly or via a contractor, labour hire or referral company.

Australian businesses are expected to take reasonable steps, at reasonable times, to ensure they are not employing, referring or contracting illegal workers.  Businesses face penalties if they employ, refer or contract non-citizens who are not allowed to work, or who are restricted from undertaking certain work, in Australia. The fines range from A$3,060 to A$102,000.

The penalties apply to anyone who has allowed or referred an illegal worker to work. The focus is on effectively responding to those few businesses that willfully take part in illegal work, not to penalise businesses which act in good faith.

  

Please call us today if you would like information on checking visa work rights.

  

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