COVID-19 has changed many aspects of business and the Australian labour market, which in turn has impacted employer-sponsored visa programs. For employers whose workforce includes foreign workers on visas, some temporary arrangements are currently in place to address issues arising from the pandemic. This guide discusses some of the key issues that employers should be aware of in regards to Subclass 482 Temporary Skills Shortage (TSS) visas and Subclass 186 Employer Nomination Scheme (ENS) visas during COVID-19.
Changes have happened across multiple aspects of employer-sponsored visas, so it’s important for employers to regularly review new announcements and rules. Remaining compliant with changes is necessary for operating smoothly and legally during the pandemic.
Issues relating to standard business and accredited sponsorship applications
A company needs to show it is “actively and lawfully operating” to be approved as a sponsor. This means that organisations must show that they’re continuing to operate and remain compliant with employment laws, even with changes caused by the pandemic.
Proving active operations means demonstrating that the company is operating in Australia and involves furnishing evidence of financial operations, tax returns, customer contracts, lease agreements, employment of staff, marketing, and advertising, and other documentation that proves the business is operating and can support the sponsored persons in their business.
During COVID-19, some businesses may have reduced or altered operations to function safely, and certain businesses may be restricted if they have experienced a financial downturn. During the sponsorship application process, businesses may be requested to provide additional information that the company is financially viable, evidence of changes to employment conditions or work hours, and evidence of any Jobkeeper payments to Australian staff. If this applies to your business, it’s wise to consult with an immigration expert to see if your company is still eligible for visa sponsorship.
Changes to TSS Nomination & Visa Applications
Additional Labour Market Testing
The nomination stage is crucial for demonstrating your need for foreign talent. During this stage, you must provide evidence of your recruiting efforts to verify that no Australian workers are available or suitable for the job opening. Throughout the advertising period, it is prudent to keep thorough, up-to-date records regarding all applicants so that you can accurately track your progress with trying to recruit a local worker and justify why there was no suitably qualified Australian worker who could fill the position.
In order for your job ads to be valid, certain information must be included in the ad, including the name of the employer or recruitment agency, the title and description of the role, required skills, and the salary or salary range if the earnings are below AUD 96,400 per year.
In addition to the standard advertisements, employers are also required to post the job ad on the Australian Government’s job seeker website, JobActive. The ad must be placed directly on the site instead of auto-posted from elsewhere. As Job Active is a Government website used by other Government agencies such as Centrelink, it provides the Government greater visibility overactivity and applications on the site.
There are some practical considerations when posting an ad on JobActive. For example, you first need to register your business for an account which must be approved before posting ads. You may also find that it takes longer for ads to be reviewed and approved to go live, so it’s wise to start early on labour market testing to avoid delays.
A genuine need for the position
Another key issue for employers is demonstrating a genuine need for the position within your business. Many businesses need skilled staff and Covid has not created more applicants to choose from. This is common in industries where there is a critical shortage of skills, or where the pandemic and border restrictions have reduced the number of workers available in the market.
When evaluating the company’s genuine need for the position, the Department may request any of the following (and more):
- A statement of core business activities
- A detailed organisational chart including full names of employees, positions, hours, and visa details
- A statement of evidence showing how the role fits in with the current business
- The tasks of the position and alignment with the ANZSCO occupation code
- Financial documentation
Keep detailed records of applicants, interviews, and reasons why applicants were unsuitable so that you can provide all documentation to the Department when requested.
Practical issues with lodging decision-ready visa applications
During the visa application stage, applicants can encounter some COVID-related roadblocks that employers will want to be aware of so that they can plan around the adjusted timelines.
Police checks, for example, particularly from overseas are slower to process and some overseas posts have suspended issuing police clearances and other official documents altogether. Police checks are mandatory for visa approvals, although there are some instances where an accredited sponsor can provide a character declaration in lieu of a check. In cases where a police check can’t be quickly obtained, the Department may accept police clearances that are more than 12 months old. It is worth seeking professional advice as to whether alternate forms of evidence could meet the character requirement.
Health examinations are also necessary for skilled work visa applications. Due to strained and limited medical resources during COVID-19, the availability of appointments at approved physicians in Australia and overseas has been severely limited meaning that overseas applicants may run into difficulties with completing medical examinations required for their visa. This is especially true in areas with severe COVID outbreaks or places where lockdowns are in effect.
Because of these challenges, Australia now allows visa medical checks to be conducted after an application has been lodged. This gives employers and international hires more flexibility during the visa application process.
Lastly, there are some limitations regarding the English testing requirement during the pandemic. For some visas, English competency is a time of decision requirement and for others, it’s measured at the time of lodging the application. Either way, applicants may encounter challenges with English testing since test centres may have limited hours or be closed altogether. It’s important to research beforehand in case options are limited.
Changes to the 186 ENS visa program
It’s also worth noting that changes are taking place with the 186 ENS visa program. The Government has announced some new rules to protect the permanent residency pathway for most 457/TSS visa holders, which is a great relief for those whose employment has or will be affected by COVID-19. The newly-released changes state that 457/TSS holders can apply for permanent residence through the Employer Nomination Stream (ENS) even if they’ve been stood down or are working reduced hours due to the pandemic. Additionally, employees who were relying on an age exemption can do so even if they don’t meet the salary threshold due to reductions from COVID-19.
In addition, 186 ENS nominations also require evidence that the position is genuine and labour market testing has been conducted. Factors taken into consideration include whether the employer has sought to find an Australian worker for the position, such as through advertising the vacancy on the Government’s Jobactive website or other national advertisements. Case officers are looking more closely at whether the industry of the business is in decline due to Covid, the position continues to fit within the activities or volume of the company, and the likely impact on the business if the nomination is refused.
With the virus-related changes, employers can still search for and recruit overseas talent, but the Australian Government expects companies to thoroughly search for in-country candidates to ensure that jobs are being created for Australians. Therefore, it’s still a requirement to post listings on Jobactive, and nominations will be scrutinised to verify that all conditions have been met.
Although new limitations are in place, it’s still possible for employers to find and sponsor international talent. If you’re trying to find workers from abroad for an open position, TMA can help you throughout the process, from assessing your eligibility to successfully lodging visa applications for international hires. Get in touch with TMA today to schedule a consultation.