Under TSS visa requirements, the visa applicant must be employed to work in the nominated occupation and, unless the nominated occupation has been specified as an exempt occupation in the relevant legislative instrument, their position must be located:
- within the sponsoring business – if the sponsor is an overseas business; or
- within the sponsoring business or an associated entity of that business – if the sponsor is an Australian business.
The intention of this requirement is that the sponsor (and/or an associated entity of an Australian business) and the visa applicant have a direct employer-employee relationship unless the visa applicant’s nominated occupation is exempted under the relevant legislative instrument.
- This restriction ensures that labour hire companies who wish to recruit and supply TSS visa holders to unrelated businesses cannot do so as standard business sponsors – a labour agreement is required to be negotiated in such circumstances.
- The intention of the exceptions in the legislative instrument is to allow certain highly-skilled visa holders to work in specific occupations that require a degree of mobility between employers (for example, general managers sitting on the board of directors of several unrelated businesses, medical professionals working as locums at various hospital clinics).
Characteristics of a direct employer-employee relationship include:
- engaging the employee in a contractual relationship
- ability to appoint or dismiss the employee
- provision of work environment, including:
- place of work
- tools, material and equipment for work
- setting work parameters, including:
- allocating tasks to the employee
- supervising the work of the employee
- assessing and determining the output of the employee
- paying the employee a salary
- complying with all relevant taxation obligations in relation to the employee including:
- withholding PAYG taxation and paying to the ATO in accordance with relevant legislation
- providing conditions of service for the employee, including:
- leave provisions
- WHS responsibilities
- other workplace relations obligations such as sexual harassment provisions
- contributing to superannuation for the employee in accordance with the relevant legislation
- liability for WorkCover payments for the employee
- liabilities for the work conducted by the employee, visa insurance and other coverage.
The sponsor must carry all these responsibilities in the relationship with their nominated employee (that is, the TSS visa applicant) unless the sponsor and direct employer are associated entities under the Corporations Act 2001 (if the sponsor is an Australian business).
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