There are always work needed from both sides for any employer sponsored visa in Australia.
- Employer Sponsored Visa nomination for employer
- Visa application for employee (main applicant)
As an employer trying to fill a skills shortage in your organisation, the requirements for sponsoring an overseas worker can feel overwhelming sometime. If you do not have a good team who is able to handle it, Work Visa Lawyers is here to help.
As skills shortages continue to get worse rather than better, I hope to set out some of the key steps in any employer sponsorship process to make the system easier to understand. Of course, this short blog could not include every possible requirement and is a starting point only.
We can summarise the “skeleton” of an employer sponsorship program as:
- Standard Business Sponsorship (if required)
- DAR endorsement (if required)
- Labour Agreement negotiation (exclusively for Labour Agreement Stream including DAMA)
- Nomination application (may require Labour Market Testing)
- Visa application stage
Before Diving In
The very first step before jumping in is determining which of the employer sponsorship streams is most appropriate for you and your business.
The most common visa options for employer sponsored visas include:
- Temporary Skills Shortage Visa 482 ( TSS 482 Visa) - This includes Designated Area Migration Agreements (DAMA)
- 186 Employer Nominated Scheme ( Permanent) Visa
- 494 Skilled Employer Sponsored Regional (Provisional) Visa
The main factors for business to decide are:
- The nature of the role you are trying to fill
- How long you need to fill it
If you have already conducted recruitment efforts at this point and located the worker you are looking to sponsor, their age, English language ability, qualifications or years of work experience can influence which programs you are limited to.
The DAMA program is specifically designed to allow sponsorship of workers in areas of key need where the worker may be older or have a lower level of English language ability than is permitted under the other programs.
Labour Market Testing (job ads)
Labour Market Testing is an important part of the Government's systems for “putting Australian workers first”. The requirements have grown more rigid of the last 4 years and have moved further away from modern business practices.
Often the Standard Business Sponsorship is described as the first step of “sponsoring a foreign worker”. However, as Labour Market Testing takes a minimum of 4 weeks to run properly, this is often the first thing you want to do to get your new staff member onboard as soon as possible.
Generally, 3 online ads are the best way to go, one of which being on JobActive. There are requirements to include the salary if the worker will be paid under a certain threshold.
Most DAMA programs currently allow for 2 job ads that have been run in the last 12 months before submitting the linked nomination application.
Labour Market Testing is not required where International Trade Obligations override the Government’s interest in putting Australian workers first.
It is important to note that the 186 visa program does not formally require Labour Market Testing, however, conducting job ads can be a good way to demonstrate that the position being nominated is genuine in the Direct Entry stream.
Standard Business Sponsorship
If you are using the medium-term stream or short-term stream of the 482 visa program, or the employer-sponsored stream of the 494 visa program, your first application to the Department of Home Affairs will be a Standard Business Sponsorship.
This is centred entirely on your business and requires demonstrating that you are lawfully operating a business (two requirements: lawful and operating). The Department will also consider any adverse information and determine whether your business’ track record is suitable for the employer sponsorship program (this can include records of breaches of laws, especially employment laws, insolvency, or untruthfulness).
Designated Area Representative (DAR) endorsement
For the DAMA program, you need the endorsement of the Designated Area Representative (who would have negotiated the DAMA for the area) before you can “negotiate” a Labour Agreement with the federal government.
Requirements for DAR endorsement are thoroughly unique to the local area and the occupation(s) being nominated.
Generally they will require you to demonstrate that you have a business in the local area, a need to use the program, and will also want to check almost all requirements for the business and visa applicant before endorsing.
Labour Agreement negotiation (DAMA and other labour agreements)
Once endorsed by the DAR if required, the business then applies to the federal government to enter into the desired labour agreement.
If successful, the Department of Home Affairs will send you a labour agreement to sign, which might include a range of different terms depending on the particular labour agreement program being used.
For the sponsoring business, the nomination application is the one constant through all programs. Whether you are using the 482, DAMA, 186, 494 or any other employer-sponsored program: no-one escapes the nomination.
While the Standard Business Sponsorship is not related to any particular roles in the business, and the DAR endorsement and labour agreements can set out multiple roles the business is seeking to fill with overseas labour, the nomination identifies one single position and one single person who will be filling that role.
If you have 5 nurses to fill workforce shortages, that means you will be doing 5 nomination applications – one for each of them.
Once all above steps have been successful or at least sent to the Department, the worker can submit their visa application.
This is the main stage where the worker’s qualifications, work experience and English language ability, as well as heath and character, are assessed by the Department. If partner and/or children are included in the application, the Department will be checking that they also meet their own requirements.
Applicant skills and English requirements are set, among other reasons, to ensure that foreign workers are able to enter Australia and fill the required skills shortage quickly and effectively.
Once it’s all over (or is it?)
Once you have the visa, the endpoint of all this, it is time for the worker to travel to Australia to join your business.
Once on-staff, it is important that you comply with all the sponsorship obligations. You can read more about sponsorship obligations here. Obligations will vary to some extent between 482, 186, DAMA and 494, but are largely overlapping for the 482 and 494, as well as the DAMA route of accessing those.
Put simply, it’s important to follow through on the range of commitments made to the Government throughout the sponsorship processes discussed above, most obviously paying the worker at least the guaranteed amounts you had set out. The Department can undertake monitoring activities to ensure this is being done.