The Department continues with its ongoing changes to the Temporary Skill Shortage (TSS) (Subclass 482) and Subclass 186/187 Visa Programmes.
The following changes commenced on 12 August 2018:
- Skilling Australians Fund
- Labour Market Testing amendments
- Sponsorship obligation amendments
- Changes to Subclass 457 and Subclass 482 visa conditions.
Nomination Training Contribution Charge - Skilling Australians Fund (SAF) Levy
Who does it apply to?
The SAF Levy must accompany nominations made by the following categories of sponsors or those who have applied to become:
- A standard business sponsor
- A temporary work sponsor (other than a special program sponsor or a superyacht crew sponsor)
- A temporary activities sponsor
OR by those who are:
- A party to a work agreement (other than a Minister)
- A party to negotiations for a work agreement (other than a Minister).
Nominations that attract the SAF Levy
The following nomination applications attract the SAF Levy:
- Subclass 457 Temporary Work Skilled visa holder
- Subclass 482 Temporary Skill Shortage visa holder or, applicant for this visa
- Subclass 186 Employer Nomination Scheme visa
- Subclass 187 Regional Sponsored Migration Scheme visa.
Subclass 457 and Subclass 482 – SAF Levy
The SAF Levy will be calculated in the following manner:
Base amount x visa period
The base amount for organisations with less than $10 million annual turnover is $1,200, in any other case the base amount is $1800.
<$10 million turnover
>$10 million turnover
Subclass 186 and Subclass 187 – SAF Levy
- If the annual turnover of the nomination organisation is less than $10 million - $3,000
- If the annual turnover of the nomination organisation is more than $10 million - $5,000.
The SAF Levy must be paid with the nomination application and the annual turnover of the nominating/sponsoring organisation must be identified.
Previous training expenditure obligations
The requirement to fulfil any training obligations during the period of the nominator’s most recent Standard Business Sponsorship approval or 12-month start-up period continues to apply in relation to a nomination application made before 12 August 2018.
Refunds may be made where:
- The nomination is withdrawn before a decision is made and the reason for the withdrawal was that the information used to calculate the SAF Levy was incorrect
- The nomination is for a Subclass 482 occupation and the standard business sponsorship application was withdrawn or refused
- The nomination is for a Subclass 482 occupation in the labour agreement stream and is withdrawn before entering into the work agreement
- The application is for a Subclass 482 visa, where the visa is refused because the applicant does not meet the character, health, or other specified criteria
- The visa applicant fails to commence employment in the position associated with the nominated occupation.
Refunds of the employer nomination application fee under the Subclass 186/187 Temporary Residence Transition, Direct Entry or Labour Agreement stream and the SAF Levy can be allowed where a written request is made or it is considered reasonable to refund the amount to that person in prescribed circumstances.
Further refund provisions of the SAF Levy for Subclass 457 and Subclass 482 nomination applications
Refunds can be allowed if:
- The period of stay for a visa holder is more than one year, and
- That person ceases to be employed by the nominator or an associated entity of the nominator within one year after commencing employment, and
- The Minister receives a written request for a refund of the nomination training contribution charge, or it is reasonable to disregard that the request is not made in writing, then:
The paid SAF Levy may be refunded, less the amount of the SAF Levy that would have been payable, if the proposed stay was for one year.
Labour Market Testing amendments
Unless exempted because of Australia’s International Trade Obligations, the Labour Market Testing requirements are:
- Advertising for a duration of at least 4 weeks (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the approved sponsor
- The period of advertising must not start earlier than 4 months before the lodgement of the nomination application
- The advertising must be targeted in such a way that a significant proportion of suitably qualified and experienced Australian citizens or Australian permanent residents would be likely to be informed about the position
- The advertising must set out any skills or experience requirements that are appropriate to the position
- A copy of any advertising must accompany the nomination application.
The Legislative Instrument allows the Minister to determine the manner in which Labour Market Testing in relation to a nominated position may be undertaken from time to time.
Accredited sponsors can advertise a position on the company website.
Sponsorship obligation amendments
Obligations to keep records – training
This obligation applies to all records relating to training expenditure under the training benchmarks expenditure in respect of the law in force before 12 August 2018.
The obligation to keep records to substantiate the annual turnover of the sponsor has been added.
Obligations not to recover or transfer costs to another person
The nomination training contribution charge is a cost that cannot be recovered or transferred to another person (for example, the visa applicant).
Obligation to provide training
The obligation to provide training has been repealed so there is no requirement to meet the training requirements in relation to a period of 12 months ending on or after 12 August 2018.
Changes to Subclass 457 and Subclass 482 visa conditions
The following conditions apply to primary and secondary Subclass 457 visa holders:
Condition 8304 means you must use the same name to identify yourself in all official Australian identity documents. If you change your name you must notify all Australian government agencies.
Condition 8564 means you must not engage in criminal conduct during your stay in Australia.
Condition 8602 means you must not incur an outstanding public health debt while in Australia. A breach of condition 8602 can result in visa cancellation or other compliance measures.
The following conditions apply to primary and secondary Subclass 457/482 visa holders:
Condition 8303 means you must not become involved in activities disruptive to, or violence threatening harm to the Australia community.
This condition means that you must maintain adequate health insurance while you are in
Australia. Reciprocal health arrangements may not be adequate.
The following condition applies to primary Subclass 482 visa holders:
Condition 8607 (more extensive than Condition 8107 which applies to primary Subclass 457 visa holders)
This condition applies to the primary visa holder and means that you must:
- Only work in the occupation for which your visa was approved. To work in a different occupation you must apply for and be granted a new TSS visa
- Only work for the employer who nominated the position you are working in (limited exceptions apply)
- Not cease employment for a period that exceeds 60 consecutive days
- Hold any licence, registration or membership that is mandatory to perform the occupation nominated in relation to you
- Comply with each condition or requirement to which the licence, registration or membership is subject
- Notify us in writing as soon as practicable if the licence, registration or membership ceases to be in force, or is revoked or cancelled, or if an application for the licence registration or membership is refused
- Not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject.
Applications of the proposed Integrity and Modern Slavery Bills
The Migration and Other Legislation Amendment (Enhanced Integrity) Bill 2017 (the Integrity Bill) is currently before the Senate. Once passed, it will amend:
- The Migration Act 1958
- The Income Tax Assessment Act 1936
- The Taxation Administration Act 1953.
This will support the integrity of the temporary and permanent employer sponsored skilled visa programmes.
It will allow the Minister of Immigration and Border Protection (who is also the Minister for Home Affairs) to publish information in regard to an approved sponsor (or from an approved sponsor) who fails to satisfy a sponsorship obligation in prescribed circumstances.
The Integrity Bill will facilitate further data sharing between the Secretary of the Department and the Commissioner of the Australian Taxation Office for the purpose of compliance and enforcement operations.
The Modern Slavery Bill 2018 (Cth) has been referred to the Senate Legal and Constitutional Affairs Legislation Committee.
The Bill, if passed, will introduce a modern slavery reporting requirement (extending to an entity’s supply chain) designed to strengthen Australia’s response to modern slavery which impacts on both Australians and overseas workers in Australia.
With the demand for temporary and permanent entry visas now resulting in the Department getting over 30,000 visa applications each day, businesses grapple with increasingly complex laws which reflect the Government’s focus on regulatory compliance, protecting Australian jobs and managing Australia’s borders.
Please contact Maria Jockel, Legal Principal, BDO Migration Services if you have any questions as we are committed to doing the best we can to safeguard your interests.