Recent policy updates in relation to the Temporary Skill Shortage (Subclass 482) (TSS) visa relate to employment contracts provided with visa applications.
What are the contract requirements?
Sub-regulation 2.72(11) of the Migration Regulations 1994 (Cth) (Regulations) provides that, unless the occupation is exempt, an Australian business sponsor is required to:
- engage the nominee only as an employee of the sponsor or an associated entity under a written contract of employment; and
- give the Department a copy of the relevant contract signed by the employer and the nominee.
So, what needs to be in the contract?
In addition to complying with Australian laws relating to employment, including the National Employment Standards (NES), the contract should meet the following additional requirements:
- the contract should cover the full employment period;
- the contract of employment cannot be for longer than the maximum period of stay for a TSS visa. In practise this means the contract would have an end date and not be ongoing or for a permanent position. We suggest that the contracts be proposed to align with the period of the visa request (e.g. a validity period of 1, 2, 3 or 4 years from grant of the visa);
- if the contract is in a language other than English, a translation of this contract must be provided. The translation does not need to be signed by both parties as long as it is a certified translation of the original contract.
- a contract to provide services (including one for which the contractor is required to have an ABN) will not satisfy this requirement;
- if the nominee is to be engaged as an employee of an associated entity of the sponsor, and the sponsor is an Australian business, an employment contract between the nominee and the associated entity will satisfy this requirement;
- the employment contract should not pre-date the completion of the labour market testing. Obviously, this would indicate to the Department that the position was filled before labour market testing was concluded (indicating that the labour market testing was not genuine).
Failure to comply may result in the nomination being refused, and / or may also have consequences for the sponsoring employer if the sponsor is the subject of monitoring or an audit.
Hannan Tew are able to provide further guidance in relation to your employment contracts before submission to the Department to ensure compliance with the new policy requirements.
If you have any specific questions, please feel free to contact your Hannan Tew adviser directly, email our general query inbox at [email protected] or call us on +61 3 9016 0484.
This document does not constitute legal advice or create an attorney-client relationship. Please consult an immigration professional for up to date information.