The Temporary Skills Shortage (‘TSS’) Visa allows Australian employers to sponsor foreign or international workers. The fundamental benefit of this visa program is the ability for Australian employers to acquire foreign workers with critical skills and experience the employer would otherwise be unable to find within the Australian program. This can be an important opportunity for businesses to expand or diversify their operations and grow to the next level.
For this reason, the employer-sponsored program is a critical component of the overall Australian skilled migration program. This article sets out some of the key considerations that an employer contemplating sponsoring a foreign national should keep in mind before commencing this process.
1. You will need Standard Business Sponsorship Status.
Every business that seeks to sponsor an employee will need to apply for and be granted standard business sponsorship (‘SBS’) status. In effect, SBS status simply nominates that you have been approved by the Department of Home Affairs to sponsor foreign workers.
SBS is similar to a driver’s license – it is not a complex application process. However, should the Department of Home Affairs have recorded any adverse information against your business then, similarly to a driver’s license, such a finding may prevent you from retaining that sponsorship status.
Our migration law specialists at Corney & Lind Lawyers are ready and available to advise and facilitate on how your business can achieve standard business sponsorship status.
2. Your employee candidate will need to have the relevant qualifications and experience.
Frequently, when an employer is seeking to sponsor an employee in their business, it will be because the employee has demonstrated an exceptional enthusiasm or capacity to assist the business. Notwithstanding this benefit, the Department of Home Affairs criteria for grant of an employee sponsored visa only considers whether or not the candidate is functioning in an occupation that is listed on one of the skilled occupation lists.
Accordingly, sponsoring employers need to consider not only whether the potential employee candidate is a good fit for the business, but also whether the candidate has sufficient skills and relevant experience, and can evidence these to meet the sponsored visa’s criteria. This ‘skills and experience’ component will need to be rigorously evidenced in order to demonstrate that the relevant candidate is capable of functioning in that skilled position. The department takes these considerations very seriously – so unless your employee has appropriate and relevant experience, it is highly unlikely they will successfully meet the temporary skills shortage visa eligibility requirements.
3. You will need to demonstrate you have made attempts to recruit locally.
One of the key elements of sponsoring a foreign worker is ensuring that you can demonstrate to the Department of Home Affairs that you have made sufficient effort to recruit labour from the Australian domestic labour market. The process of running these recruitment efforts is known as labour market testing (‘LMT’). Labour Market Testing must have occurred for at least four weeks in the four months preceding the application for a nomination. This demonstrates to the Department of Home Affairs that you have made sufficient effort to recruit from the Australian labour market before seeking to recruit a foreign worker. Additional supplementary recruitment processes that may have occurred outside the stipulated LMT period can also assist in demonstrating that you have previously made such an effort.
Many businesses seek to sponsor an employee as they are approaching their visa expiry. Considering the requirement for LMT, it is worth commencing the LMT process well in advance of the potential candidate’s visa expiry date. If you are in this category, we strongly recommend that you talk to one of our lawyers at your soonest convenience.
4. You will need to sign a contract for the sponsorship period
The Department of Home Affairs requires that you sign a contract of employment with your employee after the LMT period. For the period of time that you seek for the visa grant, it will be a condition of the candidate’s visa that they continue to remain employed in your organisation and in the occupation that you, as the sponsoring employer, have designated for them. Should that role cease, then the visa holder will be in breach of their visa condition if they cannot lodge and be granted an alternative visa at the spawn of their tentative sponsorship.
5. Your workplace and records may be inspected by a compliance officer.
The sponsoring employer is under the requirement to keep records of its compliance with all of its sponsorship obligations. These records will include, but may not be limited to:
- A copy of the sponsored employee’s employment contract,
- Records of the tasks performed by the sponsored employee,
- Records of the location of the sponsored employee’s employment, and
- Copies of the sponsor’s annual turnover
- NB: There may be additional requirements for sponsors who have been approved prior to 12th August 2018.
These records must be capable of being provided to the Minister upon the Minister’s written request. Additionally, the Minister has the power to enter a workplace and request copies of these records to ensure the sponsoring employer is adhering to their compliance responsibilities.
It is important to keep in mind that sponsoring an employee will require sufficient record keeping processes to be in place.
6. You may need to pay the travel costs for the employee to depart Australia
The sponsor must pay reasonable and necessary travel costs to enable the sponsored employee to leave Australia. If the sponsored employee’s visa ceases prematurely, the costs are considered ‘reasonable and necessary’ if they include:
- Travel from the sponsored employee’s usual place of residence in Australia to the place of departure; and
- Travel from Australia to the country for which the sponsored employee holds a passport
These costs must be paid within 30 days of receiving the request from the Department of Home Affairs.
Where to from here?
It is important to note that before you sponsor an employee under one of the Temporary Skills Shortage Visas, there are a range of obligations that will attach to the sponsoring business. The migration lawyers at Corney & Lind Lawyers look forward to assisting and providing your business further advice on how to best prepare for becoming a sponsoring employer, so that your business can maximise its potential through utilisation of the Temporary Skills Shortage Visa.