Re: Subclass 186 Employer Nominated Scheme (Temporary Residence Transition Stream) Permanent Residency Visa (the Subclass 186 TRT).
One of the requirements for the Subclass 186 TRT is to demonstrate 3 years of work experience with the Sponsor of your Subclass 482 Visa. What happens when you need to take time away from work such as sick leave or maternity leave?
Work Experience Requirements
For the Subclass 186 TRT, you need to show 3 years of work experience whilst on the subclass 482 visa working with your Sponsor.
When calculating your 3-year eligibility period, you need to take into consideration any periods of leave, both paid annual leave, and unpaid leave.
Leave Without Pay
Visa holders may take both paid (e.g. annual leave) or leave without pay (e.g. sick or emergency leave) during your 3-year eligibility period.. However, not all leave can be counted towards your 3-year eligibility period.
If you had any periods of unpaid leave, this is classified by the Department as “Leave Without Pay” which cannot be counted towards your 3-year eligibility period.
Some 482 visa holders need to take maternity leave during their 3-year eligibility period. This means time away from employment for an extended period, and can involve both paid and unpaid leave.
Department guidelines state that any unpaid periods of leave cannot be counted towards your 3-year eligibility period.
If you had paid maternity leave, you may be able to count that experience towards your 3 years. However, any unpaid maternity leave is considered “Leave without pay” which cannot be counted. We agree that this policy position is unfair, but it is the policy we must work with none the less.
If you think you are eligible for Permanent Residency, you should obtain your leave records from your employer to calculate when you may be eligible.
This post explores how to become a Standard Business Sponsor of Temporary Work Visas
what the obligations are for your organisation are once it becomes a Standard Business Sponsor.
What is a Standard Business Sponsor?
Before employing overseas workers for a subclass 482 or subclass 494 visas, businesses must apply to become Standard Business Sponsors. A Standard Business Sponsorship allows employers to nominate overseas workers for 5 years. This Approval can be renewed close to the end of the expiry.
How to apply for a Standard Business Sponsorship?
To become a Standard Business Sponsor, you need to demonstrate to the Department that your business:
Is lawfully operating in Australia; and
There is no adverse information about the business or its directors.
What are your obligations?
The Department has a prescribed sponsorship compliance framework, setting out obligations that Sponsors must satisfy. The Department also has powers to act on any breaches of these obligations which can carry serious civil or criminal penalties.
Your obligations begin before your new employee starts working with your business. Before any new employee begins, you need to check to ensure that they have the necessary work rights. Do not assume that they are Australian or have work rights. Penalties apply to businesses that employ workers who are unlawful or do not have the necessary work rights.
This list is not exhaustive but here are some common obligations for employers:
Obligation to ensure equivalent terms and conditions of employment.
Obligation to pay travel costs to enable sponsored persons to leave Australia;
Obligation to keep records of compliance.
Obligation to not recover costs related to the business application;
Ensure the sponsored employee only works in the nominated occupation;
Notify the Department of the cessation of a sponsored employer;
Notify the Department change of work duties of the sponsored employee.
Notify the Department of Changes within the business (e.g., new director, change of business name or address).
You should contact your legal representatives as soon as possible to ensure not only compliance with your obligations but that you have acted within the prescribed timeframe of 28 days.
If you are unsure about whether you need to notify the Department about certain changes, you should contact your legal representatives to guide you on the next steps.
What can you do to uphold your obligations?
There are numerous steps your HR department or managers can take to ensure compliance with these obligations. Alternatively, you should contact your legal representative.
Conduct VEVO checks to ensure they have a valid Australian Visa and Work Rights (VEVO checks). This should be completed before their employment and regularly during their course of employment.
Checking specified documentation such as passports and Immi Visa Grants
Keep records of visa grants and passport ID pages
Notify the Department as soon as possible when there are any changes to both the sponsor and sponsored employee.
What is adverse information?
As discussed above, your business must not have adverse information known about the employer or any person associated with it. If there is any adverse information, the Department must be satisfied that it is reasonable to disregard this information.
In migration law, adverse information relates to the sponsor, the nominator and any person associated with the sponsor.
Adverse Information is defined as the following:
Any person has been found guilty by a court of an offence under a Commonwealth, State or Territory law;
Acted in contravention of such law;
Subject to administrative action (including being issues with a warning) by a competent authority, for such contravention;
Is under investigation, subject to disciplinary action or subject to legal processing;
Has become insolvent within the meaning on subsections 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001.
These matters include the following:
Occupation health and safety;
People smuggling and related offences;
Slavery, sexual servitude and deceptive recruiting;
Trafficking in persons and debt bondage.
If your business has adverse information, the Department can take into consideration a range of factors to disregard that information. These include:
the nature and seriousness of the adverse information;
whether the adverse information arose recently or a long time ago;
how the adverse information arose, including the credibility of the source;
whether the adverse information has been substantiated, for example, by a formal action or finding by a court, department, or regulatory authority (a ‘competent authority’) — or whether there are investigations, disciplinary actions or proceedings that are not yet finalised;
where the adverse information is an unsubstantiated allegation, the credibility of the information and its source;
likely to reoccur (including whether there have been steps taken to guard against this);
how relevant the adverse information is to the person’s suitability as an approved sponsor or nominator;
whether there are any compelling circumstances affecting the interests of Australia;
It is recommended that businesses provide a statement of how it occurred, how you have remedied the breach and demonstrate any procedures the business has put in place to ensure compliance with that relevant law.
Proposed the provision of alternate visa and migration pathways for persons seeking to remain in Australia for the purpose of performing low or semi-skilled work
Potential future permanent visa pathways option to those provisional work visa holders who have complete a requisite minimum period of low and semi-skilled areas.
Ajuria Lawyers Pty Ltd
Submission 6 – Changing the Training Levy
Clients believed that the training levy imposes an additional and unnecessary impost on their businesses for no benefit that they can see as they still must also pay directly for training Australians.
Suggested alternative to the levy of method of direct refund or subsidy to businesses who offer formal and structured training
Refund provisions should be expanded to include withdrawals and more situations outside of sponsors control
Also suggested refunds or credit in situations where visa holder who subsequently leaves
Submission 10 – Better align visa pathways with career progressions
Argues current system restrains career progressions of employees on temporary visas
E.g. Usual path for a chef starts at cook then progresses to Chef. However, current TSS programs draws a hard line between cooks and chefs and requires employers to not move between those occupations without a new nomination and visa application
Difficult to rely on time spent as a cook to qualify for a new application
Employers are prevented from advancing temporary visa holders which creates serious succession planning issues, insecurity in employees and lose of personnel.
THE BIG 4
Clients flagged difficulties in attracting younger workers into their industry due to inability to recognise overseas qualifications
Overseas graduates are required to undertake further study in Australia in order to be recognised
Lifting the PR age restriction to 50.
Introduction of digital nomad visa – provides unrestricted work rights for up to 90 days, not age restrictive and available to all passport nationalities.
Recommends reforming SAF by spreading costs evenly over the visa term, making more provisions for refunds and providing credits for ‘Trusted Trainer’ business where certain conditions are met
Removing the need for accredited sponsors to pay the SAF leve where they can demonstrate an ongoing commitment to the training and upskilling of Australian nationals
if a sponsoring employer identifies an occupation not on a Priority Occupation List, KPMG recommends that the employer should still be allowed to nominate the role for a four-year Temporary Skilled Visa if the minimum salary for the role exceeds $90,000 plus superannuation ($100,000 for transitioning to a permanent visa).
As a clearly ineffective requirement to enforce genuine testing of the Australian labour market, we believe that the imposition of SAF levy acts to sufficiently prioritise Australian workers, thus deeming LMT processes and requirements redundant.
Current sponsoring employers could also be incentivised to sponsor their TSS employees for permanent residency. Currently some employers are loath to do so for fear that the employee will leave once their residency is granted, especially given that the SAF levy is required to be paid a second time for the permanent residency application. TSS visa holders wanting to apply for permanent residency under the TRT stream must work for their employer for three years.30 If they change employer within that time they must restart the time period with the new employer. The Skilling Australians Fund (SAF) levy should be removed where the employer is sponsoring the applicants under the TRT stream of the ENS. This would ameliorate the cost to the TRT stream sponsor and make it equivalent to that of the DE stream of the ENS, where the sponsor only pays the SAF levy once.
The MIA recommends that the Skilling Australians Fund Levy be removed for Employer Sponsored Temporary Residence Transition stream applications.
Law Council of Australia
The impact of the Skilling Australians Fund (SAF) levy in contributing to the broader skills development of Australians is unclear. It suggests the levy is often unaffordable for many smaller businesses or those sponsoring multiple employees. It suggests the SAF levy be abolished or reduced, and consideration be given to calculating it based on salary rather than business turnover—for example, one per cent of the base salary offered to visa applicants.
Give states ability to choose how they use their allocation and reallocate further skilled independent visa places from CTH to state
Reduce or remove fees for Employer-Sponsored visas and for some sectors – e.g., temporarily removing the Skilling Australians Fund (SAF) levy or waivers for occupations in most demand for both business sponsors and employees. Any
temporary removal of the SAF levy should not affect funding allocated to states and territories.
Reduce or remove unnecessary barriers that prevent regional employers from timely access to skilled migrants – e.g., unnecessary expectations of years of experience.
Pursue greater mutual recognition of overseas qualifications, licensing and registration procedures with major migrant source countries including supporting migrants to update their qualifications prior to arrival in Australia to expedite their ability to enter the workforce.
Visa Lawyers Australia
Refunds of the SAF levy payment are available to employers in limited circumstances. We submit that the situations in which refunds of the SAF levy are made possible, should be extended given the purpose of the imposition of the SAF levy and the fact that the levy involves significant expenditure on the part of the employer.
It follows that, if the position is not filled by a person who is not an Australian citizen or permanent resident, then the reason for the payment of the SAF levy does not arise or no longer exists. Given this, there is no justification for not refunding the SAF levy where the nomination application is refused or withdrawn, or the visa application is refused or withdrawn, for in such situations, the position is not being filled by a nonAustralian.
For the government to retain the SAF levy in such cases, would be to penalise the nominator, who is already out of pocket for having paid non-refundable charges relating to the nomination application, and if they agreed to do so, the visa application.
Recommendation 4.1: The SAF levy should be refunded to a nominator where the nomination application is refused or withdrawn, or the visa application is refused or withdrawn, for in such situations, the position is not being filled by a non-Australian. Alternatively, if the government seeks to retain the SAF levy in circumstances where the nomination and/or visa applications are refused or withdrawn, then it should clarify its policy for doing so. In addition, it should allow for further instances for refunds of SAF levy payments
The majority of SA businesses (ie. those with an annual turnover of less than $10 million) will now pay an additional training levy of $1,200 for every 457 visa holder they sponsor, with larger businesses paying $1,800 per annum. For each permanent employer sponsored migration application, the business will pay an additional $5,000 levy. There is no guarantee that the levy funds will be invested in the region from which it was collected, potentially exacerbating the skills shortage.
The average age of SA small businesses owner / managers is high, making identifying potential purchasers for their businesses important. In theory, the Business Innovation and Investment Program (BIIP) visa could enable these businesses to sell to suitable migrants. The typical value of SA small and medium enterprises is, however, generally lower than the BIIP investment value, making most of them ineligible for purchase by someone entering on such a visa.
ANZSCO should be replaced with a more flexible system that adapts to emerging labour market needs in consultation with industry.
Employers should be exempt from paying the Skilling Australia Fund levy twice for the same applicant.
The Skilling Australia Fund levy should be refunded where a visa application is unsuccessful.