The Department of Home Affairs has provided further details about the new Temporary Skills Shortage Visa (TSS Visa) during a briefing to the industry body, Migration Institute of Australia. The TSS Visa is proposed to come into effect in March 2018, in replacement of the current subclass 457 temporary skilled work visa.
While legislation to implement the TSS visa is still before parliament, and it should be noted they are not completely finalised; there was however, some clarification on certain aspects of the new visa regime which are summarised below to help you and your business prepare for the changes.
Features of the new Temporary Skills Shortage (TSS) Visa
here is still no specific date of introduction of the TSS visa, although the consensus is it will not be 1 March 2018. Most likely, the visa will be introduced in the first half of March, provided that the enabling legislation is passed before then.
Genuine Temporary Entrant Requirement
The TSS Visa will have a ‘Genuine Temporary Entrant’ requirement, the intention being to ensure that the temporary work visa program is used as intended and not as a way for foreign nationals to maintain ongoing residency in Australia.
The Department has indicated that this requirement will be considered met, unless the applicant has a history of holding multiple short-term visas over the last 4-5 years. It is not clear whether the Department will take into consideration an applicant’s history of holding short term employment visas or include other visa subclasses such as student visas.
Existing 457 Visa Holders Transition to TSS
A visa holder who transitions from a 457 to a TSS visa will be eligible to apply for a TSS onshore with a limit of 2 TSS visa applications made onshore. We expect that this means that subsequent TSS visas will need to be applied for offshore.
New Non-discriminatory Workforce Test
There have been no details released about what this test involves, however the Department confirmed that this test will be applied to employers on an ‘exception’ basis, and will not apply to all TSS applications. This test will focus on workplaces where the composition of employees does not align with the industry norm. The Department expects to handle a small number of these cases per year.
Clarification of Labour Market Testing (LMT)
The requirements for employers to test the market through local recruitment efforts before sponsoring a foreign worker will be made much clearer, and include:
- the length of time a position must be advertised
- the method of advertisement and exemptions to LMT
The specifics of this are still being debated in parliament.
Streamlined Application Form and Processing
The TSS application form will look different and collect different information than the 457 visa application. Also, priority will be given to ‘low risk’ applications, suggesting improved processing times which will be good news for many employers who lodge low risk applications . No definition of ‘low risk’ has been given at this stage.
Health criteria changes
The new TSS visa rules will no longer allow a sponsoring businesses to meet the health criteria of the visa by providing an undertaking in which they will meet the costs of any health care for any disease or medical condition that the applicant may have. Instead, applicant will now be required to either meet the health criteria or demonstrate that he or she will not to cause undue cost to the Australian community or undue prejudice to the access to health care or community services of an Australian citizen or permanent resident, by demonstrating he or she has the means for meeting the costs of their own heath condition.
Skilling Australians Fund
The Skills Australians Fund (SAF) is the proposed replacement to current Training Benchmarks which require employers to demonstrate training of their Australian employees each year they sponsor foreign workers. This still being debated in parliament, but there will not be a delay in the introduction if the TSS visa if the training fund legislation is not finalised by March.
Current Training Benchmark obligations will continue until such a time that the arrangements for the SAF are legislated. There will be some flexibility for existing business sponsors during the transitional period in terms of meeting the Training Benchmark obligations.
The SAF levy is payable upon lodgement of a nomination application to nominate a foreign national on a TSS visa. Employers who pay the SAF levy for an employee will not receive a refund if the employee leaves the sponsor before the end of their visa validity. The SAF is non-transferrable, and any new employer must also pay the levy. The SAF levy will only be refunded if the nomination is refused.
Expansion of Accredited Sponsorship
The Department will be examining the possibility of expanding this scheme. Active users of the temporary skilled visa program are encouraged to consider accreditation to benefit from a streamlined application process, shorter processing times and other benefits to be confirmed.
How We Can Help?
The Migration Agency can help you ensure that your Company is able to navigate through these changes, including ensuring you understand the changes and how they will affect your business.
Contact us via email firstname.lastname@example.org or by phone (02) 8896 6056 for further information.