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Skilling Australians Fund in Effect. Updates to Labour Market Testing Requirements

Skilling Australians Fund – 12 August 2018

Following the announced immigration changes in the 2018-2019 Budget the Migration Amendment (Skilling Australians Fund) Act 2018 took effect on 12 August 2018.

This means that the National Training Contribution Charge (NTCC), commonly referred to as the SAF, is applicable to all applications lodged on or after 12 Augst 2018, except where Ministers of Religion or Religious Workers are being nominated under a Labour Agreement.

Additionally, only the nominating employer can be responsible for this cost, it cannot be recovered from the visa applicant.

The following SAF levy will be applied at the of lodgement of the below nomination applications:

 

Small Business Large Business (turnover $10m or more)
TSS $1,200 $1,800
ENS/RSMS $3,000 $5,000

SAF payments and refunds

Under the TSS program, the levy is paid for each year the employer wishes to nominate the TSS visa applicant, up to 4 years.

There is an expectation that the levy will be a tax deductible item along with other relevant recruitment and retention costs however, we recommend businesses seek further advice on this tax matter, from their tax accountants.

In limited circumstances, a SAF may be refunded but this will be at the discretion of the Department of Home Affairs (Immigration) e.g. a TSS visa is approved for 2 years and the employment ends in the first year of the TSS visa – the SAF already paid for the second year may be subject to a refund.

Business planning

Although the SAF will impose additional costs for many businesses, it will also make it more straight forward for employers to comply with a training obligation.

Nominating employers are reminded to have personnel resourcing and immigration processes in place to avoid unnecessary costs, particularly when refunds of government fees, levies, professional costs can be limited.

Training benchmarks

The SAF now replaces the previous training benchmark requirements for TSS, ENS and RSMS nomination applications lodged on or after 12 August 2018.

For pending applications lodged prior to this date, the previous training benchmark requirements will continue to apply.

To maintain compliance with the TSS/Standard Business Sponsorship (SBS) training obligations the previous training benchmark requirement continues to apply in each 12 month period, from the date of SBS approval through to 12 August 2018.

Labour Market Testing requirements – updated

The Migration Amendment (Skilling Australians Fund) Act 2018 also includes changes to the Labour Market Testing (LMT) requirements which will impact TSS nomination applications lodged on or after 12 August 2018:

  • LMT conducted no more than 4 months prior to lodgement of a nomination application
  • Advertisements used to evidence LMT must run for at least 4 weeks using at least two national online or print methods or radio. Adverts must also include:
    – the nominated salary, if the proposed salary is $96,400, and
    – skills and work experience requirements

In some circumstances, the employer may be permitted to provide a detailed submission of their LMT efforts in lieu of the above, such as:

  • the annual earnings for the nominated position is no less than $250,000
  • the visa applicant is recognised internationally as having outstanding achievements in a profession or field e.g. sport, academia and research, top-talented chef
  • the visa applicant is being nominated in a key medical occupation
  • the visa applicant is an intra-corporate transferee
  • a new nomination is required for an existing visa holder because of a change in the company’s business structure or pay

Exemptions are in place where an International Trade Obligation applies.

Conclusion

Since April 2017, a large number of legislative changes have been introduced with rapid pace, to the employer sponsorship programs.

In many instances, the changes relate to the same criteria and each new change impacts a certain period of time in which an application was lodged within the last 16 months.

If the relevant nomination and/or visa requirements are not met at the time of application, the applications may be refused without employers or visa applicants given the opportunity to rectify the mistake or provide further information. Negative outcomes may also impact further applications.

Immigration law is one of the most complicated pieces of Australian law. We strongly recommend employers and visa applicants seek professional immigration advice from a reputable Registered Migration Agent or practicing solicitor that specialises in Immigration law.

If you would like to know more about how these changes impact you please book a consultation with one of our advisors.

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