Concessions Introduced During Transition to Temporary Skills Shortage Visa

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At a Glance

The Department of Home Affairs (DHA) has introduced the following concessions to the Labour Market Testing (LMT) requirement of the recently introduced Temporary Skills Shortage (TSS) visa:

• Intracompany transferees are exempt from LMT; and
• Until the new LMT policy settings become law, DHA will exercise some flexibility in accepting LMT that does not strictly meet the policy requirements. 
   

Additionally, sponsors with ‘Accredited’ status can now provide character references instead of applicants submitting police clearance certificates with their applications.

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The situation

The Department of Home Affairs (DHA) has introduced a number of concessions from the Labour Market Testing (LMT) requirement for Temporary Skill Shortage (TSS) visa applications.

DHA also advised that accredited sponsors may provide character references in support of a foreign nationals’ visa application in lieu of the requirement to submit police clearance certificates with their applications.

Concessions to LMT

During the transition period, which will last until the new legislation relating to LMT comes into effect, the following concessions will apply to LMT:

• In the case of intracompany transfers (ICT), DHA will accept a letter from the employer confirming that the nominee is an ICT, such as a letter of transfer, assignment contract, or a confirmation of employment letter, in lieu of advertising conducted as part of LMT. DHA is updating policy guidelines to reflect this approach.
  • Impact.  Employers will be able to submit applications for ICTs sooner since they will not have to advertise the position for a minimum period of 21 days.
• Additionally, despite the published policy guidelines relating to LMT, DHA has confirmed that it will take a flexible approach relating to the period the position was advertised, the number of advertisements, and the information included in the advertisement in the initial transition period.
  • Impact. This means that an employer would generally not be expected to repeat any genuine LMT undertaken prior to March 18, notwithstanding that it does not meet the current LMT guidelines effective from March 18. Similarly, DHA will exercise flexibility in accepting LMT undertaken after this date provided this evidences genuine efforts to recruit Australian workers.
  • Looking ahead. DHA may decide to change the LMT framework and limit current concessions once the LMT framework is codified, which is expected within the next few months. Employers should consider amending current recruitment practices to align with the new policy requirements in preparation for this.
     

Character concession for Accredited Sponsors

• In lieu of TSS visa applicants providing police clearance certificates for every country they have lived in for at least 12 months in the past 10 years, accredited sponsors will be able to provide a reference letter (a template is available from DHA) confirming that the visa applicant is of good character and has not been convicted of any criminal offences in any country.
• However, the DHA could revoke the accredited sponsorship status of an employer where a TSS visa holder is subsequently found not to satisfy the character test. This would be in addition to any action taken against the visa holder to cancel their TSS visa.
  • Impact. Although this may reduce the visa application preparation time for foreign nationals seeking to work for accredited sponsors, employers should exercise caution in providing these references and only consider doing so where the business is confident that a statement about the character of a visa applicant and/or any family members can be accurately made.