Most temporary visas in Australia are granted subject to employment limitations. When it comes to the Subclass 482 – Temporary Skill Shortage (TSS), condition 8607 is mandatory:

The holder must work only in the occupation (the nominated occupation) nominated by the nomination identified in the application for the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder.

This condition is only attached to the primary visa holder and family members are granted visas with full work rights. Given the many inquiries we receive, we address some frequently asked questions to provide helpful insights:

Secondary employment whilst on a TSS
A TSS visa holder must have a genuine intention to perform the nominated occupation in Australia and this includes not undertaking additional work or activity that is inconsistent with the nominated occupation. As a result, unless exempted, a primary TSS visa holder may not undertake secondary employment unless this work is:

1. undertaken for the sponsor;
2. in the nominated occupation;
3. consistent with the position they were approved to fill; and
4. incidental to their principal employment.

Some examples where a person will be in breach of their TSS visa:

1. A software developer working with another company who is not their sponsor in the evenings and weekends developing an app
2. A chef driving with Uber
3. A person sponsored as a Restaurant Manager doing secondary employment with a modeling agency

Unpaid work
Under policy, voluntary unpaid work is not considered to be a breach of the visa provided it does not affect the ability of the TSS visa holder to work in the nominated position on a full-time basis. In view of the sponsorship obligations that apply to the sponsor, however, the visa holder is expected to get the agreement of their sponsor.

Changing occupations within the same organisation & remaining with the same sponsor
If a primary TSS visa holder wishes to engage in work in a different occupation, their sponsor must first lodge a new nomination and have this approved, and the visa holder must lodge a new visa application identifying this nomination and have it granted.

As a reminder sponsors are to contact us when the duties of a  sponsored worker change through our MobilityDesk or by email. If the occupation remains the same, we will simply do a notification to Home Affairs. However if the occupation changes, the process above will need to be followed and we will advise accordingly.

A change of occupation may also effect permanent residency under the Employer Nomination Scheme Subclass 186 visa when seeking to apply under the 2 year transitional pathway.

Working for an associated entity of an Australian business sponsor allowed
A primary TSS visa holder sponsored by an Australian business sponsor is able to work for an associated entity of their sponsor without breaching  the employment condition.

A primary TSS visa holders cannot work for an unassociated entity as this is considered by the Department to be ‘on-hire’. If a TSS visa holder needs to work for an unassociated entity then the sponsor will need to negotiate an On-hire Labour Agreement to permit this.

Must not cease employment for more than 60 consecutive days
The period during which a TSS visa holder ceases employment must not exceed 60 consecutive days. The purpose of this is to give a TSS visa holder, who ceases employment with their current sponsor time in which to find a new approved sponsor, without concern that their visa may be cancelled. Under the Migration Strategy, this is proposed to increase to 180 days.

Part time work
The TSS visa program is designed to fill genuine skill shortages in the Australian labour market where appropriately skilled Australians cannot be sourced.

As a result, it is a TSS nomination requirement that the visa holder is employed in a full-time position and under policy, such full-time employment arrangements would generally be expected to continue for the entire period of the TSS visa.

If a TSS visa holder commences part-time work arrangements, under policy, they may not be considered to be in breach of their visa on this basis alone. However sponsors must ensure that they are able to continue to meet their sponsorship obligations where part-time arrangements are put in place for an individual primary visa holder.

This period of part time employment may also affect eligibility for permanent residency under the Employer Nomination Scheme Subclass 186 visa when seeking to apply under the 2 year transitional pathway.

Sponsorship obligations also require that TSS visa holders continue to receive their approved annual earnings and employment conditions no less favourable than what is or would be provided to an equivalent Australian worker in the same occupation at the same location. Under policy, this is considered satisfied where periods of part-time work occur in connection with graduated return from maternity leave, sick leave or a work-based injury, or significant personal reasons, and the following criteria are met:

1. the visa holder’s pro-rata hourly rate, commensurate with the approved salary does not decrease.
2. the visa holder’s role and duties remain consistent with the approved position.
3. the visa holder is not sponsored under a Work (Labour) Agreement which was approved with a full-time work condition only.
4. if the visa holder’s is sponsored under a labour agreement, the agreement is limited to full time work.
5. the arrangement is mutually agreed between the sponsor and primary sponsored person.

Should you have a sponsored worker moving to part time work, please contact our office for further advice.

Leave Without Pay
TSS visa holders on unpaid leave (LWOP) (e.g. recreational or holiday leave without pay; sick leave without pay; maternity and/or paternity leave and/or parental/carer/personal leave), are not considered to be in breach of their visa condition solely on the basis of this unpaid leave. This is because these visa holders may be considered to continue to be in the employ of the sponsor (although not working or receiving a salary).

Under policy, this period should not, however, generally exceed 3 months unless:

1. the sponsor is obliged to provide the leave under Australian workplace laws (e.g. paternity or maternity leave); or
2. exceptional circumstances apply.

This is because extended LWOP would not be consistent with:

1. full-time position requirements at nomination stage and ongoing market salary rate requirements;
2. requirements that TSS primary visa holders cannot cease work for their approved employer for more than 60 consecutive days; and
3. how LWOP provisions operate in the context of sponsorship obligations, see: Sponsorship compliance framework: Sponsorship obligations.

For any LWOP it is expected that:

1. the arrangement is mutually agreed upon by the sponsor and sponsored person; and
2. there is a formal application for leave without pay that has been formally approved by the employer (including leave applications that are processed and approved electronically).

It is also important to note LWOP will affect eligibility for permanent residence under the Employer Nomination Scheme Subclass 186 visa when seeking to apply under the 2 year transitional pathway.

Unauthorised absences from work
A TSS visa holder who is absent without leave (AWOL) from, or who abandons, their employment, may be regarded as having ceased employment if the employer has attempted to give notice that employment will cease, or has ceased, on a particular date, and that date has passed.

Periods spent outside of Australia
As TSS visas enable multiple entries to Australia, visa holders who spend periods outside Australia are not considered to have ceased employment solely because they are or have been absent from Australia. If a visa holder spends significant periods outside Australia, it may be an issue as there may be no continued need for the TSS visa.

Provided the visa holder has not ceased employment and there are reasonable grounds for the visa holder to be regularly absent from Australia, the visa holder will not be considered to be in breach. Under policy, legitimate circumstances in which a TSS visa holder is regularly absent from Australia include:

1. fly in/fly out arrangements are common in some industries and can be a legitimate reason why a visa holder is regularly absent from Australia; or
2. the TSS visa holder may be responsible for managing work on a project outside Australia and, although the position is based in Australia with an Australian company, performing the duties of the position may involve being regularly absent from Australia.

‘Exempt occupations’
There are a very limited number of occupations where the visa holder’s position is not required to be in the business of the sponsor or an associated entity of the sponsor. This enables the TSS visa holder to be engaged as an independent contractor by the sponsor or an associated entity of the sponsor and may work for multiple employers, either simultaneously or consecutively.

These can include Chief Executive or Managing Director, Corporate General Manager and medical practitioners. This is primarily to accommodate the flexible employment arrangements typically associated with medical practitioners, and general managers of companies who might sit on more than one corporate board.

As you navigate the complexities of TSS Visa and the employment restriction, remember that we are here to support you every step of the way. If ever in doubt or if you need further clarification, don’t hesitate to reach out. Our team is ready to assist you and ensure a smooth journey for both you and your employees.

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As part of its Migration Strategy, the Federal Government is proposing to replace the current TSS visa with a new ‘Skills in Demand’ visa with three targeted pathways:

1. A new Specialist Skills Pathway for any occupation except trades workers, machinery operators and drivers, and labourers earning at least $135,000 (the Specialist Skills Threshold) and no less than Australian workers in the same occupation.

2. A Core Skills Pathway whereby occupations will need to be on the ‘Core Skills Occupation List’ (CSOL) which relates to occupations identified by Jobs and Skills Australia as being in shortage or where Australia has committed to providing access to our labour market in relation to that occupation through international trade agreements. Under this pathway, the salary will need to be above the Temporary Skilled Migration Income Threshold (TSMIT) currently set at $70,000 but due to increase on 1 July 2024.

3. An Essential Skills Pathway which will become a more regulated pathway for lower paid workers with essential skills—in consultation with state and territory governments, unions.

There is no start date for the proposed changes.

As part of the consultation process, Jobs and Skills Australia (JSA) has now released a draft Core Skills Occupations List (CSOL (second pathway listed above) for discussion. The CSOL will determine which skills are given priority for visas under the temporary skilled migration program.  JSA has divided skills into three categories:

1. Confident On List: Skilled occupations the JSA Migration Model is confident should be on the CSOL.
2. Targeted for consultation: Skilled occupations the JSA Migration Model suggests should be targeted for stakeholder feedback.
3. Confident Off List: Skilled occupations the JSA Migration Model suggests should not be on the CSOL.

A copy of the Draft Core Skills Occupations List (CSOL) for Consultation | Jobs and Skills Australia is available for review and the JSA is inviting stakeholders to provide feedback on these occupations by Friday, 10 May 2024 5.00pm AEST. This can be provided through their online Survey with the ability to upload a separate submission.

There are a number of occupations in the IT, hospitality, financial services and entertainment industry that are on the Confident Off List that could adversely impact clients where salaries are below $135,000 pa.

We will be contacting all potentially impacted clients to discuss the implications and we can also assist with submissions for clients wanting to provide feedback to JSA.

We will continue to monitor this closely and will send further alerts as more information becomes available.

As always you should contact your Ajuria team for more information and assistance.

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From 6 December 2023, there are new rules that apply to fixed-term employment contracts in Australia. You can find more detail about this on the Fair Work Ombudsman website

Importantly, the new rules:

1. Limit the maximum length of a fixed-term employment contract to two years.
2. Limit the maximum number of consecutive fixed-term employments to two (four years).

There are some exceptions to this.

As we are not employment lawyers, we cannot advise clients about the changes or how they might impact your employment arrangements, however, the changes would create a potential immigration issue if your business is seeking to sponsor an employee on a TSS visa for more than two years and intends to use a fixed-term contract.

If you use fixed-term employment contracts for TSS visa holders please contact us.

If you would like more information about the impact of the changes on your business, you should contact your employment lawyer or we can provide you a referral.

As always please contact us if you require more information.

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In a complete reversal of previous advice, the Department of Immigration yesterday confirmed to us that Working Holiday Makers would again be able to assume permission to work for the same employer for more than 6 months if their work will be:

• in different locations and work in any one location does not exceed 6 months
• in plant and animal cultivation anywhere in Australia
• in certain industries, including aged care and disability services, fishing and pearling, tree farming and felling, construction and mining, in northern Australia only (see website for a definition of Northern  Australia)
• in natural disaster recovery
• in critical sectors, including agriculture, food processing, health, aged and disability care and childcare, anywhere in Australia
• in the critical sector of tourism and hospitality anywhere in Australia

This remarkable turn-around comes after the immigration industry and employers raised serious concerns about the impacts of the previous policy shift which stated that written permission would need be sought in all cases after 1 January 2024 (see our Alert of 8 December 2023)

Individuals who have lodged requests for permission can continue in their employment until they receive a response. Individuals who have not yet made such a request will not need to do so provided they fall within the circumstances listed above.

This is great news for Christmas for many industries and shows that Government will listen when policies do not make sense for employers, employees and the economy. However as this will be all reviewed in 2024 as part of the Government’s  Migration Strategy we expect the government is looking to tighten up the program and this policy relaxation may be short lived.

As always you should contact your Ajuria team for more information and assistance.

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The post Australia’s Migration Strategy – What Are The Proposed Changes? first appeared on Ajuria Lawyers – Leaders in Immigration.

There is a lot of discussion on the greatly anticipated Government’s release of its ‘Migration Strategy’. The Hon Clare O’Neil MP, Minister for Home Affairs and the Hon Andrew Giles MP, Minister for Immigration, Citizenship and Multicultural Affairs today released the report with most of the changes have been foreshadowed throughout the year and will not be implemented before the end of 2024.

Most of the announcements are preliminary with little detail and subject to ongoing consultation and consideration. However the direction of the Government is now somewhat clearer:

1. Create different rules for different types of employees sponsored by employers on temporary visas.
2. Increase the ability of employees to move between employers and to determine their own permanent residence pathways.
3. Sanction employers who are found to be doing the wrong thing.
4. Restrict the use of Working Holiday Visas, Student visas and Graduate Visas to become de facto work visas and so control the impact of temporary visa holders on the workforce.
5. Strengthen the geo-political ties in the Indo-Pacific region.

The following table summarises the main announcements made today:

We will provide more updates as the strategy outcomes are developed and released by government.  The strategy is complex involving many layers and no doubt further information will be provided  when the Federal Treasurer releases its Mid-Year Economic and Fiscal Outlook on Wednesday. In the meantime join our webinar for a comprehensive analysis and Q & A session.

The post Australia’s Migration Strategy released today first appeared on Ajuria Lawyers – Leaders in Immigration.

Some welcomed news today, with a change announced to the Labour Market Testing (LMT) requirements for Temporary Skill Shortage subclass 482 (TSS) visa and Skilled Employer Sponsored Regional subclass 494 visa.

From 8 December 2023, there is no longer a requirement for employers to advertise on the government website Workforce Australia to meet the LMT requirements.

Where an exemption/alternative evidence does not apply to meet the LMT requirements, employers are required to:

1. Advertise the nominated position on two platforms:

• on a prominent or professional recruitment website with national reach that publishes advertisements for positions throughout Australia
• if the sponsor is an accredited sponsor, on the business’ website.
• in national print media (that is, newspapers or magazines with national reach that are published at least monthly and marketed throughout Australia) or on national radio with national reach

2. Advertise the nominated position for at least four weeks in the four months immediately prior to lodgement of a TSS nomination application.

The Department have also clarified they will not accept evidence of non-consecutive advertising. A job advertisement must run over a continuing period of time, rather than separate non-consecutive periods. Overlapping job advertisements will be accepted, but not back-to-back advertisements.

For example, an advertisement is posted on a recruitment platform from 1 November 2023 to 20 November 2023 (20 days). A duplicate advertisement is run on the same platform from 19 November to 4 December 2023 (14 days). This example would comply with LMT requirements as the overlapping advertisements have been posted for a continuing period of at least four weeks. The day which overlaps may only be counted once. If the second advertisement was posted on 21 November, the department would not accept that the ad has run continuously for 28 days.

The Migration Strategy will be announced today which is expected to reveal a number of other changes to the TSS program.

As always please check with your Ajuria advisor if you have any questions.

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As a reminder, the current concessions for Working Holiday Makers (WHM) that allow them to work for one employer (with the same end user or Australian Business Number) for more than six months will end on 1 January 2024. See our alert of 14 June 2023.

This means that from that 1 January 2024, WHMs will only be able to work for one employer for up to six months unless they receive written permission from the Department to extend this time. Significantly, this will end the previous flexibility in policy to automatically extend this period where the WHM remains with the same employer but at a different location.  This is a major departure from previous policy that has been in place since September 2016. Businesses need to be vigilant they do not continue the practice of moving locations in order to extend work rights beyond the 6 months.

Examples:

• The WHM started with the employer on 1 March 2023, but has continued to remain with the employer under the COVID concessions.  The employee will need to cease work on 1 January 2024 unless they have received permission in writing to extend the employment with the employer.
• The WHM started with the employer on 1 August 2023. The employee will need to cease work on 1 February 2024 unless they have received permission in writing to extend the employment with the employer.
• The WHM arrived in Australia in June 2023 and started with the employer on 1 July 2023 and is currently awaiting the outcome of a TSS visa. The employee will need to cease work on 1 January 2024 unless they have received permission in writing to extend the employment with the employer.

The changes mean that all employers must review their current WHM population and either seek written extensions before 1 January 2024 or apply for another visa such as a TSS visa (in which case the current WHM visa validity period will determine if a written extension is required).

Under the Department’s current policy, an extension of time may be granted if:

• The employee has made an application for a work visa that will allow them to work for the same employer.
• There are exceptional circumstances such as:
  • the visa holder’s work is critical to a project that takes longer than expected (for example, a lawyer working on an extended trial); or
  • the visa holder is doing disaster recovery work after a major disaster (for example, helping to rebuild after a flood); or
  • the workplace has been affected by a major disaster and the visa holder was physically unable to go to work (for example, returning to a farm to help with the harvest following flooding).

However, the Department has advised us that this policy is being redrafted and may not remain the same. We will therefore need to await the new policy before being able to say with any certainty whether or not a particular application for extension will succeed.

The Department has also advised us that the Government is expected to release its Migration Strategy this year which may include the following reforms to the WHM program:

• restoring cultural exchange as the primary focus;
• not tying access to subsequent visas to the performance of work; and
• limiting the WHM program to a single 12-month visa.

We are not able to say with any certainty what these changes will be, however it does seem that the WHM will become less flexible as a tool for employers to manage temporary, seasonal or transient positions.

As always you should contact your Ajuria team for more information and assistance.

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