Temporary Skill Shortage (TSS) Visa Holders – Update (FAQ)
April 6, 2020

There are various changes happening around us today. We understand you have loads of questions regarding your visa conditions. Here are the temporary changes in measures for TSS visa holders you need to know:

You have been Stood down/Reduced Working Hours

All TSS visa holders who’ve been stood down, but not laid off will maintain their visa validity. In addition, businesses will have an opportunity to extend their visa as per normal arrangements.

Businesses are also allowed to reduce the working hours of the visa holder without breaching their visa conditions or the business employer’s obligations.

 TSS and 457 Visa Holders – Working part-time for your Sponsor

The TSS visa and subclass 457 visa was designed to allow employers to address labour shortages and bring in full-time skilled workers as the employers can’t source a skilled Australian worker. In case your working hours were reduced to a part-time basis, your sponsor (employer) may not meet their obligations because you will earn less than the nominated salary. Meanwhile, there are policy provisions wherein the employer could still meet their obligations for periods of part-time work, including sick leave, maternity leave, work-based injury or significant personal reasons.

In addition, the following policy criteria must be met:

  • Pro-rata hourly rate of the approved nominated salary of the sponsored person does not decrease.
  • Role and duties conducted by the sponsored person remain consistent with the position approved at nomination.
  • The nominee is not employed under a Labour Agreement which was restricted to full-time arrangement only.’
  • The arrangement is mutually agreed upon by the sponsor and sponsored person. Sponsors should maintain written evidence to demonstrate this agreement.

Leave Without Pay (LWOP)

Various Australian employers provide conditions to employment enabling their employees to have LWOP while they continue their employment. Considering the TSS and subclass 457 visas will fill the specific skill shortages in Australia with full-time work position at nomination stage and ongoing market salary rate requirements, extensions for LWOP aren’t acceptable with the purpose of the said visas.

Meanwhile, for part-time work, LWOP won’t generally meet regulation 2.79 if the employee’s earnings are less than what the earning were when the nomination was approved.

The LWOP will only be accepted for the following motives:

  • Maternity/Paternity Leave
  • Sick Leave
  • Work-Based Injury
  • Significant personal reasons

Last Saturday, 4 April 2020, Acting Immigration Minister Alan Tudge announced: the Department of Home Affairs will take a flexible approach to TSS/457 visa holders whose working hours have been reduced due to the COVID-19 crisis. As a result, the below 3-month rule would not apply.

In general, the LWOP must not exceed three months, unless the sponsor is obliged to give leave under Australian workplace laws. In any LWOP. it is expected:

  • Ther arrangement is mutually agreed upon by the sponsor and his/her sponsored person, and;
  • A formal application for leave without pay that has been formally approved by the employer.

Remote work for TSS visa holders

For those TSS 482 visa holders who aren’t able to re-enter to Australia due to travel restrictions following the COVID-19, you can still work overseas provided you are able to work remotely. But you need to have a written agreement in place and keep records.

Changing Roles

The migration policies require the sponsor to ensure that a primary sponsored employee only works in the occupational approved at the nomination. Primary sponsor has the responsibility to clearly correlate with the duties listed under the relevant occupation code for the nominated occupation under the ANZCO (Australian and New Zealand Standard Classification of Occupation).

Employment Termination

All sponsors must comply with both the Migration Act 1958 and the Fair Work Act 2009 legislation and all other relevant federal or state legislation at all times. As a TSS visa holder, the period you cease employment must not exceed 60 consecutive days. Such policies are in place to give a TSS visa holder who’s been ceased employment by their current sponsor a time to find a new approved sponsor.

 

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