When sponsoring an overseas worker under the Temporary Skill Shortage visa (subclass 482) (TSS visa), there are two requirements you must comply with to ensure that you are paying the correct salary for the nominated position. For instance, if your overseas worker is to be paid an annual salary less than AUD$250,000, you must ensure that their salary or annual earnings are:

  1. the same or above the current Temporary Skilled Migration Income Threshold (TSMIT); and
  2. the same or above the Annual Market Salary Rate (AMSR) for the nominated position.

The AMSR and the nominee’s annual earnings may be different as the Department of Home Affairs (DHA) will compare what the nominee is proposed to be earning against what an equivalent Australian worker would earn. Above all, these salary requirements help to ensure that overseas workers are not being underpaid and exploited. They also ensure that these visa programs are not used to undercut the Australian labour market. This article will discuss the two salary requirements you must meet when nominating a foreign worker under the TSS visa.

1. Ensure the Nominee’s Salary Meets or Exceeds the TSMIT 

The TSMIT is set by the DHA each year. It currently stands at AUD$53,900 plus superannuation. Therefore, this means that anyone on the TSS visa must be paid at this current rate or above.

To meet the TSMIT requirement, you must also ensure that the:

  • nominee’s annual earnings meet or exceed the TSMIT;
  • AMSR for the nominated position is no less than the TSMIT (however, you cannot pay your worker above the AMSR just to meet the TSMIT);
  • TSMIT does not include non-monetary benefits (e.g. a car or accommodation); and
  • any non-monetary benefits are paid in addition to the TSMIT.

A TSS visa application will not be approved unless the proposed salary for the nominee is above the TSMIT. However, there are some occupations that will be subject to conditions that set a minimum remuneration level higher than the TSMIT.

2. Ensure the Nominee’s Salary Meets or Exceeds the AMSR

The AMSR is the salary that an Australian earns (or would earn) for performing equivalent work: 

  • on a full-time basis; 
  • for a year; 
  • in the same workplace; and 
  • at the same location. 

The AMSR requirement ensures that the nominee is paid no less than an Australian employee would be paid in a similar role.

You will be exempt from this requirement if the nominee’s proposed salary is AUD$250,000 or more per year.

To meet this requirement, you will need to accurately determine the AMSR in consideration of relevant market salary research. What you may need to look at will depend on your situation and the nominated position. For example, you may need to look at: 

  • what you are currently paying an Australian worker performing the same job as the nominee;
  • enterprise agreements or industrial awards;
  • Job Outlook (an Australian government initiative providing information about Australian careers, labour market trends and employment projections); and
  • market salary research.

The table below outlines how to determine the AMSR in three different scenarios and what information you will need to provide.

 

Information Required

What This Means

Other Notes

Where There Is an Equivalent Australian Worker

An equivalent Australian worker is:

  • an Australian citizen or permanent resident;
  • employed in the same workplace as the nominee;
  • employed in the same location as the nominee; and
  • performing equivalent work to the nominee.

If the Australian worker’s salary is based on an enterprise agreement or industrial award, you must provide:

  • the name of the agreement or award as recorded by the Fair Work Commission (FWC) (if applicable); and
  • the salary level or occupation group that applies to the nomination.

If there is no relevant agreement or award, or you are paying your Australian employees above the award rate, you must provide:

  • copies of relevant employment contracts; and
  • payslips for these employees.

Where an enterprise agreement or industrial award applies to an equivalent Australian worker, the AMSR is the annual earnings of the Australian worker in that agreement or award.

Where there is no relevant agreement or award, but there is an equivalent Australian worker, the AMSR is determined based on relevant employment documents.

The DHA will refuse your nomination application if:

  • your nominee will be paid less than the equivalent Australian worker; or
  • you provide only generic market salary data or salary surveys.

Where There Is No Equivalent Australian Worker but There Is an Enterprise Agreement or Industrial Award 

You will need to provide:

  • the name of the agreement or award as recorded by the FWC (if applicable); and
  • the salary level or occupation group that applies to the nomination.

The AMSR is determined based on the relevant enterprise agreement or industrial award.

 

Where There Is No Equivalent Australian Worker, Agreement or Award

You will need to determine and explain what the AMSR is by using relevant information, which may include at least two of the following:

  • Job Outlook information;
  • advertisements from the last six months for equivalent positions in the same location;
  • remuneration surveys completed by a reputable organisation; or
  • written advice from unions or employer associations.

The AMSR is determined by you with supporting evidence.

If you provide vague, unlabelled salary surveys and do not explain how you have determined the AMSR, the DHA will likely refuse your nomination application.  Therefore, as a general rule, you should provide at least two independent sources of information in determining the AMSR.

You must explain and provide details about the selected AMSR if the market salary determined is a range.

There are certain situations where the DHA will examine applications carefully. Therefore, you should provide additional evidence where the nominee’s:

  • annual earnings are AUD$65,000 or less; or
  • salary package contains significant non-monetary benefits.

Furthermore, you may also need to provide additional evidence if the AMSR evidence presented reflects a wide range of salary data and/or inconsistent information.

Key Takeaways

If you are an employer who is intending to sponsor an overseas worker under the TSS visa, you must meet certain salary requirements set by the DHA. You must ensure that your nominee is paid no less than the TSMIT, which is currently AUD$53,900, and the AMSR. Additionally, the AMSR and annual earnings for your nominated position (excluding any non-monetary benefits) must be no less than the TSMIT.

It is likely your nomination application will be refused by the DHA if you fail to meet these requirements or provide insufficient evidence. However, if you have any questions about salary requirements under the TSS visa, contact LegalVision’s immigration lawyers on 1300 544 755 or fill out the form on this page.

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