Skilled Visa Update – 457 Visa, TSS Visa, Labour Agreements & Occupation List Updates
Skilled Visa Update – 457 Visa, TSS Visa, Labour Agreements & Occupation List Updates
The Department of Home Affairs (DHA) which is now the overarching Department of which the Department of Immigration now sits under, has provided a further update in regards to the proposed changes for March of this year.
The update covers a range of information surrounding the current 457 visa arrangements, the new Temporary Skills Shortage (TSS) Visa, Labour Agreements and updates to the Skilled Occupation Lists (The STSOL and the MLTSSL).
It is our ultimate goal and responsibility to keep all our current and prospective clients aware of the upcoming changes to appropriately plan and prepare for the impacts it may have on your visa status or business and seek to make the transition as smooth as possible.
Update to the Subclass 457 Visa
Lodgement of applications
As previously advised the 457 visa is to continue to be utilised until it is replaced by the Temporary Skills Shortage (TSS) Visa in March of this year. All applicants and sponsors are advised to lodge complete and decision ready applications to the Department as a revised approach has been implemented to ensure processing is efficient and as fast as possible. This revised approach will mean applications can be decided without requesting any further information from applicants.
Singapore-Australia Free Trade Agreement (SAFTA)
On 1 December 2017 the agreement to amend the Singapore-Australia Free Trade Agreement (SAFTA) came into force. The amended agreement enables sponsors to be exempted from the Labour Market Testing requirements if the person proposed in the nomination application is a citizen/national/permanent resident of Singapore and the sponsor provides information to this effect as part of the application. This now brings Singaporean nationals in line with other Free Trade Agreements namely, citizens/nationals/permanent residents of Chile, South Korea and New Zealand.
More information on the SAFTA can be found at the Department of Foreign Affairs and Trade website.
Further information on Free Trade Agreements and their effect on Migration Law can be found here.
Labour Agreements – 457 Visa and TSS Visa
Given the transition from the subclass 457 visa to the Temporary Skill Shortage (TSS) program the Department is continuing to progress with changes to ensure labour agreements will be able to be catered under the TSS program.
Some of these changes include:
- Revised agreements being sent out to fishing industry and existing company specific labour agreements for signatures
- Feedback from existing on-hire labour agreements holders will be requested by mid-January to facilitate revised agreements to be signed by mid-February 2018
- Remaining labour agreement sponsors will begin to be contacted between the end of January and middle of February to sign new agreements where required in order to facilitate further nomination applications being lodged where approved ceilings remain available.
Temporary Skill Shortage (TSS) Visa Update
The Department has advised that the TSS Visa is still scheduled to come into effect in early March 2018 with three options available via the TSS Visa:
- Short-term stream – this is for employers to source genuine temporary overseas skilled workers in occupations that are listed on the Short-term Skilled Occupation List (STSOL) for a maximum of two years (or up to four years if an international trade obligation applies). This stream will enable a further maximum term of two years renewal onshore.
- Medium-term stream – this is for employers to source highly skilled overseas workers to fill medium-term critical skills in occupations listed on the Medium and Long-term Strategic Skills List (MLTSSL) for up to four years, with the eligibility of permanent residency after three years.
- Labour Agreement stream – this is for employers to source overseas skilled workers in accordance with a labour agreement that has been negotiated with the Commonwealth government. Labour agreements are applied on the basis of a demonstrated need that cannot be met in the Australian labour market and the standard visa programs do not cater for. There is a capacity to negotiate for permanent residency options via this stream.
The Department has advised that a number of initiatives are planned in association with the TSS visa to support businesses to fill skill shortages.
- a new standard five year sponsorship agreement period which will also apply to start-up businesses
- implement auto-approval of complete streamlines lower-risk nomination applications that have been lodged by accredited sponsors
- a new streamlined ‘renewal process’ for existing sponsors which will result in a shorter application form and potential auto-approval of certain sponsorship applications
- updated online forms for TSS visa applications
- updated and revised templates for correspondence from the Department
Transitioning from the subclass 457 Visa to the TSS Visa
Employers who are already approved standard business sponsors for subclass 457 visas will continue to be able to sponsor skilled overseas workers under the TSS visa program. It is very important however, that applicants and sponsors understand the transitional arrangements that will come into effect for nomination and visa applications so businesses can plan accordingly.
Subject to the final approval of transitional arrangements, it is anticipated that:
- if subclass 457 nomination and visa applications are both lodged prior to the TSS implementation, they will be processed under the existing legislation
- if a subclass 457 nomination application is lodged without an associated 457 visa application being lodged before the commencement of the TSS, it will effectively become ‘redundant’ as subclass 457 nominations will not be able to be linked to TSS visa applications, even where the nomination has already been approved.
More information on the transitional arrangements can be found on our article here.
Labour Market Testing – TSS Visa
As per the Governments announcement in April 2017, more scrutinised labour market testing arrangements will be in place for the TSS visa. Occupation exemptions will no longer be available to ensure that employers try to find a suitably qualified Australians prior seeking to sponsor international workers.
At this stage, no specific information has been provided with respect to the intricacies of the new Labour Market Testing requirements, however it is anticipated that clear evidence of advertising through recruitment websites, national print media and other forms of media will meet this requirement.
Equivalent Worker Requirement – Salary and Conditions Arrangements for the Temporary Skill Shortage (TSS) Visa
As per the current legislative arrangements, sponsors who are seeing to employ an international employee at a salary of under AUD250,000 are required to provide evidence that the the business will be paying market salary rates to the worker to ensure that overseas workers are protected and the local labour market is not undermined.
Certain changes to the salary and conditions provisions that are to be implemented with the TSS visa aim to:
- clarify provisions in complicated areas when it comes to terms such as ‘base rate of pay’ and ‘guaranteed annual earnings’
- ensure that salary arrangements more adequately reflect the different payment arrangements in place for different industries
- ensure that international workers are protected and that market salary rate information and evidence cannot be artificially inflated
- ensure that sponsors have a clear understanding that they must comply with Australian employment laws and regulations in addition to the immigration obligations
Updates to the Skilled Occupation Lists – Short Term Skilled Occupation List (STSOL) and Medium-Long Term Strategic Skilled Occupation List (MLTSSL)
In April 2017 the Australian Government announced that a six-monthly review cycle of the occupation lists will be occurring to ensure that the skilled occupation lists appropriately reflect the genuine needs in the Australian labour market.
Updates to the occupation lists for temporary and permanent skilled visas will come into effect on or about 17 January 2018. The update will be based on the review conducted by the Department of Jobs and Small Business (DJSB) in late 2017 which has now concluded.
The review undertaken was based on labour market modelling and analysis, and feedback from employer and employee groups as well as other government agencies.
Important information to note:
- The new occupation list instruments, which will come into effect will not be applied to pipeline applications. This includes the new instrument that related to the Temporary Work (Skilled) visa (subclass 457) program.
- The next occupation list instruments will be published in March 2018 for the Employer Nominated Scheme (subclass 186) Visa, the Regional Skilled Migration Scheme (RSMS) visa (subclass 187) and the Temporary Skills Shortage (TSS) visa which will be consistent with the broader legislative changes being implemented at this time.