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482 - TSS - Temporary skill shortage visa
A labour agreement is a formal arrangement negotiated between an Australian employer and the Australian Government. Applying for a visa under a labour agreement is the only migration pathway for employers seeking to recruit overseas workers for semi-skilled or skilled positions, in the situation where concessions to mainstream visa requirements are sought. This includes positions which are currently not listed on either the Short Term Skilled Occupation List (STSOL) or Medium and Long-term Strategic Skills List (MLTSSL).
In circumstances where standard immigration pathways are an option, they should be used in preference to a labour agreement. Standard pathways include the Temporary Skill Shortage, Employer Nomination Scheme, or Regional Sponsored Migration Scheme visa programs. For a business to arrange for foreign employees to work in Australia, it must meet certain legislative criteria. The business seeking to employ foreign employees is first required to make themselves known to the Department of Home Affairs (DHA).
The structure of the labour agreement includes the following requirements to ensure that Australian workers and those holding permanent residency, always retain priority over foreign employees.
● Overseas workers must be provided with terms and conditions of employment that are no less favourable than an Australian citizen or permanent resident performing equivalent work at the same workplace and location.
● Terms and conditions of employment are expected to be consistent with local remuneration practices for that occupation and must meet Australian workplace laws.
● The base rate of pay afforded to overseas workers must exceed the Temporary Skilled Migration Income Threshold ($53,900 as at 1 September 2018), unless the Minister agrees to a concession.
There are different types of labour agreements available including:
1. company specific labour agreements
A company specific laboura greement is developed directly with an employer and will be considered only where a genuine skills or labour shortage for an occupation exists. The shortage must not already be provided for in an industry, relevant project or designated area migration agreement.
The terms and conditions of the agreement are considered on a case-by-case basis.
2. industry labour agreement
Template labour agreement arrangements are in place for certain industries and are outlined in the relevant learning paper. Such arrangements provide for fixed terms and conditions agreed to by the Minister in consultation with key industry stakeholders and are specific to an industry sector. Arrangements may be considered if the Department receives several similar labour agreement requests from an industry, and there is evidence of ongoing labour shortages within that industry.
When an industry labour agreement is in place, the agreed set of terms and conditions of the industry agreement are non-negotiable. No further concessions will be considered.
3. designated area migration agreements
The Designated Area Migration Agreement (DAMA) programme has been developed to supplement the workforce strategies of states, territories, and regions, with the aim of supporting economic performance and adjustment to changing economic conditions.
The DAMA is a two-tier agreement: the first tier consists of an overarching five-year deed of agreement with a designated area representative setting out occupations, ceilings and concessions; and the second tier comprises individual labour agreements with direct employers. DAMAs establish collaborative arrangements with shared roles and responsibilities between the Australian Government and regional, state or territory authorities.
The overarching nature of a DAMA, allows employers streamlined access to a broader range of overseas workers than generally available through the standard Subclass 482 visa program, without the need to individually negotiate terms and conditions. DAMAs are particularly attractive to small businesses that may not have the resources to develop a labour agreement directly with the government.
4. project agreements
A project agreement allows project companies experiencing genuine skills or labour shortages, access to temporary skilled and semi-skilled overseas workers through the Subclass 482 visa. This allows the business to meet peak workforce demands during the construction phase of resource or infrastructure projects.
Project agreements are a two-tiered agreement stream; the first tier consists of an overarching deed of agreement, negotiated with a project company; and the second tier comprises individual labour agreements with direct employers. They are available to project companies that own or manage the construction phase of large resource or infrastructure projects.
Once an overarching deed of agreement is in place, employers may seek to be endorsed by the project company for a labour agreement.
5. on-hire agreements
The Approved Sponsor (on-hire) can nominate occupations in the agreement where they remain on the list of eligible skilled occupations for the Subclass 457 or TSS visa program at the time the nomination application is lodged. Unlike company specific agreements, there are no concessions available for on-hire labour agreements.
The Approved Sponsor must, in addition to the information prescribed in the Migration Regulations, demonstrate through written evidence, at Nomination that:
● the Nominee will be engaged full time;
● the Nominee will be paid by the on-hire company and not by a third party;
● the Monetary benefits of the nominee’s annual Earnings for a 38-hour week will not be less than:
(i) $65,000; and
(ii) what an Australian performing equivalent work in the Approved Sponsor’s workplace at the same location would receive on an annual basis.
If you are an employer seeking to sponsor a foreign national, contact us today to discuss whether a labour agreement is a suitable option for your business. As part of the process, we will discuss the needs of your business and determine the best possible labour agreement pathway. We also assist with:
1. Liaising with relevant stakeholders and government bodies
2. Advice on applicable labour market testing requirements
3. ANZSCO mapping
4. Advice on any local requirements (for example if your client wishes to enter into a DAMA) Note that a number of trade, technical and lower skill level positions are able to be sponsored under this scheme.