Temporary Skill Shortage Visa

On 18 March 2018, the new Temporary Skills Shortage (Subclass 482) visa (TSS) replaced the Subclass 457 visa program. The Subclass 482 visa program enables Australian and overseas businesses to sponsor skilled overseas workers to fill prescribed positions on a temporary basis for up to four years.

The Subclass 482 Visa Program has strict criteria dealing with:

Age
Employment history
Salary
English language
Eligible occupations
Labour market testing
Character criteria.

The restrictions aim to protect Australian jobs and to only allow access to overseas skilled workers with critical skills, if skilled Australian workers are not available and to increase the quality and economic contribution of skilled migrants.

Subclass 482 TSS Visa

The TSS has three streams:

A Short-term stream for occupations on the Short-term Skilled Occupation List (STSOL) for a maximum of up to two years (or up to four years if an international trade obligation applies)
Medium-term stream – for occupations on the Medium and Longterm Strategic Skills List (MLTSSL) for up to 4 years
Labour Agreement Stream – in accordance with a Labour Agreement, where there is a demonstrated need that cannot be met in the Australian labour market under the TSS.

The 482 visa application process

There are three steps in the approval process under the 482 visa program:

Sponsorship application, which is lodged by the company, and:
- the company is actively and lawfully operating the business;
- the employment of the nominee will benefit Australia;
- it is able to comply with sponsorship obligations;
- it will be the direct employer or ‘related to’ the direct employer of the nominee;
- there is no adverse information regarding the sponsor;
- it has a strong record of, or commitment to, employing local labour and non-discriminatory employment practices
Nomination application, which is lodged by the company and meets the following requirements:
- the position is on the STSOL occupation list or the MLTSSL occupation list;
- the position meets the minimum skills threshold for that occupation;
- includes labour market testing (LMT) to show that there are no suitable Australian workers to do the work (unless exempted under Australia’s International Trade Obligations);
- annual salary must accord with at least the annual market salary rate for the nominated position (unless exempted);
- the position associated with the nomination must be genuine and full-time;
- the person must be engaged under a written contract of employment to work only for the company or for an associated entity of the company;
- the company must not engage in discriminatory recruitment practices;
- the employment conditions that apply to the position must not be less favourable than those that apply or would apply to an Australian worker performing equivalent work at the same location; and
- the details of the nominee are provided.
Visa application, which is lodged by the person nominated to fill the position, who must:
- demonstrate they have the relevant skills, qualifications and employment background necessary to perform the nominated occupation;
- demonstrate they have at least 2 years relevant skilled work experience in the nominated occupation or performing tasks at the same skill level in a related field;
- if necessary, provide evidence that they have English language proficiency;
- if necessary, provide a skill assessment;
- undertake a health check;
- provide police check/s; and
- have adequate health insurance if a reciprocal healthcare agreement does not apply.

The occupation lists

Only specified occupations on the lists are able to be sponsored under the 482 visa program.

The occupations are reviewed every six months by the Department of Jobs and Small Business (which flags occupations for possible removal in the next review of the lists).

Labour market testing

All occupations are subject to LMT of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the prescribed temporary position.

LMT does not apply if it would be inconsistent with Australia’s international trade obligations.

Terms and conditions

The employment conditions that apply to the nominee must not be less favourable than those that apply or would apply to an Australian worker performing equivalent work in the same position at the same location.

Genuine position available

The position associated with the nomination application must be genuine. Factors which evidence genuineness include:

Whether the skills and duties of the position are consistent with the skill level and the tasks of the nominated occupation;
Whether the position is consistent with the scope, scale and nature of the business;
Whether the position was created to help the nominee stay in or migrate to Australia; and
The position must be full-time, although exceptions may be considered where there is a strong business case.

Have relevant skills, qualifications and employment background to perform occupation

The visa applicant must demonstrate they have the skills and experience necessary to perform the nominated ccupation and for prescribed occupations, must undertake a skills assessment to demonstrate this.

The visa applicant must also have at least two years of relevant skilled work experience in the nominated occupation or a related field on a fulltime basis within the last five years.

Meet the health requirements

The visa applicant and any accompanying family members must meet the health requirement, the results of which are generally valid for 12 months.

Meet the character requirements

The visa applicant and accompanying family members aged 16 years and over must meet the character requirements to show that they are of good character.

Unless sponsored by an accredited sponsor, this requires police certificates from all relevant countries, including any required Australian police clearance.

Have not contravened paying for visa sponsorship legislative provision

Paying for visa sponsorship, which means asking for, offering, receiving or providing a benefit in return for being sponsored for the Subclass 482 visa, is a contravention of ‘Paying for visa sponsorship’ legislative provisions.

Have English language proficiency

Primary visa applicants must meet certain minimum standards of English language proficiency unless exemptions apply.

Verification of claims

The Department of Home Affairs with the Australian Border Force as its operational enforcement arm has significant powers and reach including to verify the claims made in an application and the documentary evidence used to support it.

This can include claims as to the nature of the business and the visa applicant, including as to identity, work history, educational level, health, character and such like.

Sponsorship obligations

Companies that are approved as sponsors under the 482 visa program must meet sponsorship obligations. These include obligations to:

Cooperate with inspectors
Notify Sponsor Notifications when certain events occur
Ensure the sponsored employee works only in the nominated occupation
Ensure equivalent terms and conditions of employment
Not engage in discriminatory recruitment practices
Keep records
Provide records and information
Assume all costs yourself
Pay travel costs
Pay costs to locate and remove an unlawful non-citizen.

Sponsorship monitoring

The Department of Home Affairs, together with the Australian Border Force, has a broad range of powers to monitor and investigate possible non-compliance with sponsorship obligations and a range of measures to address identified breaches of obligation.

These include taking administrative action to bar or cancel the sponsorship approval, or to issue civil pecuniary penalties by way of infringement notices.

The Migration Act 1958 (the Act) contains various powers in the event of breach including a number of criminal offences in respect of persons who commit offences relating to visas, false papers and in relation to persons who are unlawfully in Australia or working unlawfully in Australia. These offences may result in civil and criminal prosecution, penalties of imprisonment and/or substantial pecuniary penalty.

A person’s (and their accompanying family member/s) visa/s may be cancelled as a consequence of the cancellation of the business’s sponsorship approval or as a result of a breach of the visa conditions by the sponsored person.

While the 482 visa program recognises the importance of skilled workers to meet Australia’s economic needs, the current emphasis of the program is to ensure that it is responsive to local and national needs, and that the recruitment of overseas workers is not to the detriment of the Australian workforce.

The Employer Nomination Scheme (186) (ENS) enables businesses operating in Australia to recruit skilled workers on permanent visas to fill specified highly skilled positions that cannot be filled from the Australian labour force.