TSS Visa Update February 2018
Applicants are reminded that the Government is introducing the TSS visa in early March 2018 to ensure businesses can access the critical skills they need to grow, where no skilled Australian worker is available. There will be three options available under this new visa program:
- Short-term stream – this is for employers to source genuine temporary overseas skilled workers in occupations included on the Short-term Skilled Occupation List (STSOL)1 for a maximum of two years (or up to four years if an international trade obligation applies)
- Medium-term stream – this is for employers to source highly skilled overseas workers to fill medium-term critical skills in occupations included on the Medium and Long-term Strategic Skills List (MLTSSL)*1 for up to four years, with eligibility to apply for permanent residence after three years
- Labour Agreement stream – this is for employers to source overseas skilled workers in accordance with a labour agreement with the Commonwealth, on the basis of a demonstrated need that cannot be met in the Australian labour market and standard visa programs are not available, with the capacity to negotiate a permanent residence option.
1Employers in regional Australia will have access to a broader range of occupations when the TSS visa is introduced.
At the time of lodging a TSS nomination application, employers will need to select an employment period of up to:
- 1 year or 2 years for the short-term stream (unless an international trade obligation applies); and
- 1 year, 2 years, 3 years or 4 years for the medium-term or labour agreements stream.
Understanding the transition from subclass 457 to TSS
Employers who are already approved standard business sponsors for subclass 457 will be able to sponsor skilled overseas workers under the TSS visa program. It is, however, important to understand transitional arrangements that are expected to be in place for nomination and visa applications so that they can plan accordingly with their clients and not wait until the last minute to lodge applications.
Subject to final approval of transitional arrangements, it is expected that:
- if subclass 457 nomination and visa applications are both lodged prior to TSS implementation, they will be processed under the current framework.
- if a subclass 457 nomination application is lodged without an associated 457 visa application being lodged before the commencement of TSS, it will, however, effectively become ‘redundant’ as subclass 457 nominations cannot be linked to TSS visa applications, even where the nomination has already been approved (subject to the specific scenarios below).
Arrangements will be put in place to ensure that such ‘redundant applications’ can be finalised and/or withdrawn with a refund of the fee provided. To avoid delays or unnecessary additional processing steps, applicants, however, strongly encouraged to:
- lodge complete subclass 457 nomination and visa applications together before the end of February, or
- postpone lodgement until commencement of TSS.
- Secondary visa applicants (of 457 visa holders or pending 457 visa applicants) will be able to lodge a subsequent dependent TSS application and if they meet requirements, will be granted a TSS visa linked to their family’s subclass 457 visa/nomination application. The validity period of the TSS visa will match the expiry date of the subclass 457 primary visa holder.
- Subclass 457 visa holders whose visa is not expiring but wish to change employer after the implementation of TSS, can get their new employer to lodge a TSS nomination application to facilitate this as per current arrangements.
- Subclass 457 visa holders who wish to change occupation or need a new visa (for example: with longer validity), they will, however, need to lodge a new TSS visa application referencing a new TSS nomination application.
Labour Market Testing (LMT) for TSS
Consistent with previous Government announcements, more robust LMT arrangements will be in place for TSS – with occupation exemptions to LMT no longer available. This is to ensure that employers try to find a suitably qualified Australians before they can seek to employ an overseas skilled worker on a TSS visa.
We understand that employers would like as much notice of these new arrangements as possible to ensure that they can amend their business practices where required ‘in advance’. It is not, however, expected that employers will have problems meeting these new requirements given that:
- sponsors are already expected to test the local labour market before utilising the subclass 457 program (except where international trade obligations apply) and
- the requirements will be able to be met by employers who advertise key job details, in English, via a channel that has sufficient coverage (for example: national recruitment website such as jobactive.gov.au, national print media).
Salary and conditions arrangement for TSS
As per current arrangements, sponsors seeking to employ an overseas worker at a salary of under AUD250,000 will need to provide additional information to demonstrate that they are going to pay the market salary rate to ensure that overseas workers are protected and the local labour market is not undercut.
Changes to some salary and conditions provisions are, however, planned to:
- clarify provisions in this complicated area, with feedback received that terms such as ‘base rate of pay’ and ‘guaranteed annual earnings’ are misunderstood
- ensure that salary arrangements more adequately reflect the different payment arrangements in place for different industries
- ensure that overseas workers are protected and that market salary rate information cannot be inflated by unscrupulous employers, and
- ensure that sponsors understand that they must comply with Australian employment laws as well as immigration requirements.