Changes to the Subclass 457: Temporary Work (Skilled) VisaMarch 27, 2017
The Temporary Work (Skilled) visa (Subclass 457) allows skilled workers (employed in specified occupations) to travel to Australia and work for an approved business for up to four years. The subclass 457 visa is the most commonly used programme for Australian employers whom wish to sponsor overseas workers to work in Australia on a temporary basis as there is a demonstrated need that this demand cannot be met in the current Australian labour market due to a skills shortage.
As per the Department of Immigration and Border Protection’s (‘the Department’) recent publication of the 457 agent newsletter, certain changes have occurred regarding numerous occupations in which skilled workers can be nominated under the 457 programme.
Store Manager Positions
The Department has advised under its current 457 policy that it is not appropriate to use the standard 457 programme for Store Manager positions, This is due to the fact that the Store Manager positions align very closely with the occupation of Retail Manager (General) (ANZSCO 142111). The occupation of Retail Manager (General) is not included in the Consolidated Sponsored Occupations List (CSOL) by the Department, and therefore, is not an occupation that can be nominated under the 457 programme.
The Department recommends that if there is a genuine need to fill the position of Retail Manager or Retail Supervisor positions with overseas workers, it would be better to request a Company Specific Labour Agreement (LA).
‘Generic’ requests are unlikely to be approved due to the overall nature of the labour agreement programme, which is designed to allow a business to sponsor an overseas worker only where there is a demonstrated need that cannot be met in the current Australian labour market.
In order to have a LA request approved, strong supporting evidence must be provided to demonstrate that:
- Skills Shortage: that there is a skills shortage related to this particular store/position (such as ongoing recruitment activities have not been successful in the region and further reasons why);
- Reduced Reliance: the employer can demonstrate that there has been a reduced reliance on overseas workers for the company; and
- Exceptional circumstances: there must be exceptional circumstances which apply to their company.
Due to various concerns raised by migration agents regarding skills assessments in the 457 programme, the Department has received the current processes and implemented new arrangements regarding exemptions to mandatory skills assessments.
Changes to exemptions
The Department has expanded their previous exemptions for obtaining mandatory skills assessments to now also include the following individuals:
- Repeat 457 applications: applicants who are applying for a repeat 457 application and have completed a VETASSESS skills assessment for their previous 457 visa for the same occupation; or
- Intra-company transfers: applicants nominated as intra-company transfers and employed in a similar occupation for the same company overseas.
The Department previously had exemptions in place for 457 applicants nominated as Program or Project Administrators (ANZSCO 511112) or Specialist Managers NEC (ANZSCO 139999).
It should also be noted that case officers may exercise discretion, with the approval of 457 programme management, not to require a VETASSESS Skills Assessment from a visa applicant if the applicant has significant formal qualifications and/or work experience and has salary level of $180,000 or more; or the sponsor is accredited.
Salary and Hours for Subclass 457 Visa Holders
The intent of the 457 program is that subclass 457 visa holders are employed full-time as the 457 programme is designed to fill genuine skill shortages within the Australian labour market.
Part-time work arrangements can only be approved in certain circumstances, such as where the nominated earnings are $250,000 or more. Part-time arrangements cannot be approved for nominations lodged under labour agreements, as these agreements state that work arrangements must be full-time.
Part-time work after maternity leave on 457 visa
Under the current 457 policy, there are circumstances in which the employer will not be in breach of their obligations if the 457 visa holder drops to part-time hours (for example, following a period of maternity leave) and they are paid a salary of $250,000 or more.
Salary rate changes for 457 visa holder
As a general rule, the 457 visa holder’s salary cannot decrease during their visa period below what was approved in their most recent nomination. The only exception to this rule is if the 457 visa holder is paid a salary of $250,000 or more. Even if the market salary rate for this occupation decreases during their nomination, their salary cannot decrease – otherwise, the sponsor will be in breach of regulation 2.79(3) regarding the obligation to ensure equivalent terms and conditions of employment.
A new nomination will need to be lodged, demonstrating that the market salary rate decrease if the sponsor and visa holder wish to maintain an employment relationship (that is, same position and same employer but a decrease in salary according to market salary rate).
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