TSS 482 visa holders to be allowed 6 months without employer
Positive Changes coming for Subclass 482 Visa Holders: Extended Grace Period and Enhanced Worker Protection
Minister's Announcement
In a highly positive development, Minister for Immigration, Citizenship, and Multicultural Affairs, Andrew Giles, has announced forthcoming changes that promise a more favorable environment for Temporary Skill Shortage (TSS) (Subclass 482) visa holders. These changes are designed to offer greater flexibility and protection for visa holders who find themselves without an employer sponsor.
Timeframe for Sponsorship Transition
The Temporary Skills Shortage (Subclass 482) visa (‘TSS visa’) is mandatorily imposed with Condition 8607, which states that if TSS visa holders temporarily stop working, they will need to return to work after 60 consecutive days or they will be breaching their visa conditions.
See the law of Condition 8607 extracted and highlighted below:
(1) The holder must work only in the occupation (the nominated occupation) nominated by the nomination identified in the application for the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder.
(2) Unless subclause (3) applies, the holder must:
(a) if the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder is in the Labour Agreement stream—work only for the person who nominated the nominated occupation; or
(b) if the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder is in the Short-term stream or Medium-term stream and the person who nominated the nominated occupation was an overseas business sponsor at the time the nomination was approved—work only in a position in the person's business; or
(c) if the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder is in the Short-term stream or Medium-term stream and the person who nominated the nominated occupation was not an overseas business sponsor at the time the nomination was approved—work only in a position in the person's business or a business of an associated entity of the person.
(3) This subclause applies if:
(a) the nominated occupation is an occupation specified by the Minister in an instrument made under subregulation 2.72(13); or
(b) the holder is continuing to work for a person for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.
(4) Subject to subclause (6), the holder must commence work within:
(a) if the holder was outside Australia when the visa was granted—90 days after the holder's arrival in Australia; or
(b) if the holder was in Australia when the visa was granted—90 days after the holder's visa was granted.
(5) If the holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.
(6) If the holder is required to hold a licence, registration or membership (an authorisation) that is mandatory to perform the nominated occupation in the location where the holder's position is situated, the holder must:
(a) hold the authorisation within:
(i) if the holder was outside Australia when the visa was granted—90 days after the holder's arrival in Australia; or
(ii) if the holder was in Australia when the visa was granted—90 days after the holder's visa was granted; and
(b) continue to hold the authorisation while the holder is performing the occupation; and
(c) notify Immigration, in writing, as soon as practicable if an application for the authorisation is refused; and
(d) comply with each condition or requirement to which the authorisation is subject; and
(e) not engage in work that is inconsistent with the authorisation, including any conditions or requirements to which the authorisation is subject; and
(f) notify Immigration, in writing, as soon as practicable if the authorisation ceases to be in force or is revoked or cancelled.
60 Day Grace Period
Currently, TSS visa holders have 60 days (commonly known as “60 day grace period”) from the conclusion of their employment to:
Seek a new employer to nominate them
Apply for and obtain a different visa
Depart from Australia
This “grace period'“ applies whether 482 visa holders resign, face termination, or encounter redundancy.
TSS workers must only work in their approved nominated occupation.
The only way to change occupations is to lodge and be granted a completely new TSS nomination and visa under the new occupation.
If you wish to change sponsors but continue working in the same nominated occupation, then you will need to lodge a new nomination application. You will only be able to work for the new sponsor once this new nomination is granted. However, you can remain on the same visa.
Therefore, during this 'Grace Period', TSS workers are currently not permitted to work for their new prospective sponsors until their new 482 nomination transfer application (and if changing occupations - potentially 482 vis application) has been approved. Any other employment is also not permitted.
Per visa condition 8607, if TSS visa holders exceed the 60 day grace period then they are in breach of their visa condition. This has serious potential consequences and can involve serious repercussions, ranging from visa cancellation and having to depart Australia.
Navigating the time pressure of the 60-day grace period can place substantial pressure on TSS visa holders. This intense time pressure may incline them to consider job offers that might be exploitative.
Proposed Change: A Significant Enhancement
The proposed change is monumental: TSS visa holders will have a generous six months, a significant extension compared to the previous 60-day span, to secure new sponsorship.
For companies looking to employ 482 visa holders who are currently sponsored by another organisation but are no longer working for them, they are able to commence working immediately without waiting for the new 482 nomination to be approved. However, you must submit a TSS 482 nomination within 6 months of them ceasing employment from their previous sponsor should you wish to retain them.
This change is aimed at empowering visa holders to make informed decisions about their next career move and to provide them with greater financial stability and ample time to find a suitable employer sponsor.
Retained Work Rights and Worker Protection
Importantly, during this six-month period, TSS visa holders will be permitted to work. This welcome news means that TSS workers will benefit from increased worker protection and financial security. This added security is part of a broader initiative by the Australian government to tackle migrant worker exploitation, allowing individuals the freedom to transition from exploitative work environments without being tied down by visa constraints.
Positive Impact and Implications
This move is a pivotal step towards enhancing the overall work experience for TSS visa holders. While the specific implementation date for these changes is yet to be announced, it marks a promising shift towards better conditions and safeguards for temporary skilled workers in Australia.
Remaining Informed and Prepared
No date for the introduction of these legislative changes has been confirmed yet. Stay informed and stay prepared with ZEST LEGAL as these changes unfold. We will diligently keep our readers updated on any further developments regarding these modifications.
These proposed changes signals a positive outlook for TSS visa holders, promising them improved prospects to find alternative employers and to report any instances of exploitative practice. For those seeking more in-depth insights, you can directly access the Minister's speech here: ‘Tackling Temporary Worker Exploitation’.
Seek Guidance and Stay Informed
Navigating these developments with expert advice can ensure that you make the most of the improved conditions and opportunities as they unfold. For those seeking further clarification or guidance regarding these upcoming changes, our team is here to assist you. Feel free to email us at hi@zestlegal.com.au or call our friendly team on 1300 079 743.
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