Mastering TSS Visa Condition 8607: An Employer’s Roadmap to Understanding Work Rights & Boundaries Q & A of what can and can’t be done

Most temporary visas in Australia are granted subject to employment limitations. When it comes to the Subclass 482 – Temporary Skill Shortage (TSS), condition 8607 is mandatory:

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.

This condition is only attached to the primary visa holder and family members are granted visas with full work rights. Given the many inquiries we receive, we address some frequently asked questions to provide helpful insights:

Secondary employment whilst on a TSS
A TSS visa holder must have a genuine intention to perform the nominated occupation in Australia and this includes not undertaking additional work or activity that is inconsistent with the nominated occupation. As a result, unless exempted, a primary TSS visa holder may not undertake secondary employment unless this work is:

1. undertaken for the sponsor;
2. in the nominated occupation;
3. consistent with the position they were approved to fill; and
4. incidental to their principal employment.

Some examples where a person will be in breach of their TSS visa:

1. A software developer working with another company who is not their sponsor in the evenings and weekends developing an app
2. A chef driving with Uber
3. A person sponsored as a Restaurant Manager doing secondary employment with a modeling agency

Unpaid work
Under policy, voluntary unpaid work is not considered to be a breach of the visa provided it does not affect the ability of the TSS visa holder to work in the nominated position on a full-time basis. In view of the sponsorship obligations that apply to the sponsor, however, the visa holder is expected to get the agreement of their sponsor.

Changing occupations within the same organisation & remaining with the same sponsor
If a primary TSS visa holder wishes to engage in work in a different occupation, their sponsor must first lodge a new nomination and have this approved, and the visa holder must lodge a new visa application identifying this nomination and have it granted.

As a reminder sponsors are to contact us when the duties of a  sponsored worker change through our MobilityDesk or by email. If the occupation remains the same, we will simply do a notification to Home Affairs. However if the occupation changes, the process above will need to be followed and we will advise accordingly.

A change of occupation may also effect permanent residency under the Employer Nomination Scheme Subclass 186 visa when seeking to apply under the 2 year transitional pathway.

Working for an associated entity of an Australian business sponsor allowed
A primary TSS visa holder sponsored by an Australian business sponsor is able to work for an associated entity of their sponsor without breaching  the employment condition.

A primary TSS visa holders cannot work for an unassociated entity as this is considered by the Department to be ‘on-hire’. If a TSS visa holder needs to work for an unassociated entity then the sponsor will need to negotiate an On-hire Labour Agreement to permit this.

Must not cease employment for more than 60 consecutive days
The period during which a TSS visa holder ceases employment must not exceed 60 consecutive days. The purpose of this is to give a TSS visa holder, who ceases employment with their current sponsor time in which to find a new approved sponsor, without concern that their visa may be cancelled. Under the Migration Strategy, this is proposed to increase to 180 days.

Part time work
The TSS visa program is designed to fill genuine skill shortages in the Australian labour market where appropriately skilled Australians cannot be sourced.

As a result, it is a TSS nomination requirement that the visa holder is employed in a full-time position and under policy, such full-time employment arrangements would generally be expected to continue for the entire period of the TSS visa.

If a TSS visa holder commences part-time work arrangements, under policy, they may not be considered to be in breach of their visa on this basis alone. However sponsors must ensure that they are able to continue to meet their sponsorship obligations where part-time arrangements are put in place for an individual primary visa holder.

This period of part time employment may also affect eligibility for permanent residency under the Employer Nomination Scheme Subclass 186 visa when seeking to apply under the 2 year transitional pathway.

Sponsorship obligations also require that TSS visa holders continue to receive their approved annual earnings and employment conditions no less favourable than what is or would be provided to an equivalent Australian worker in the same occupation at the same location. Under policy, this is considered satisfied where periods of part-time work occur in connection with graduated return from maternity leave, sick leave or a work-based injury, or significant personal reasons, and the following criteria are met:

1. the visa holder’s pro-rata hourly rate, commensurate with the approved salary does not decrease.
2. the visa holder’s role and duties remain consistent with the approved position.
3. the visa holder is not sponsored under a Work (Labour) Agreement which was approved with a full-time work condition only.
4. if the visa holder’s is sponsored under a labour agreement, the agreement is limited to full time work.
5. the arrangement is mutually agreed between the sponsor and primary sponsored person.

Should you have a sponsored worker moving to part time work, please contact our office for further advice.

Leave Without Pay
TSS visa holders on unpaid leave (LWOP) (e.g. recreational or holiday leave without pay; sick leave without pay; maternity and/or paternity leave and/or parental/carer/personal leave), are not considered to be in breach of their visa condition solely on the basis of this unpaid leave. This is because these visa holders may be considered to continue to be in the employ of the sponsor (although not working or receiving a salary).

Under policy, this period should not, however, generally exceed 3 months unless:

1. the sponsor is obliged to provide the leave under Australian workplace laws (e.g. paternity or maternity leave); or
2. exceptional circumstances apply.

This is because extended LWOP would not be consistent with:

1. full-time position requirements at nomination stage and ongoing market salary rate requirements;
2. requirements that TSS primary visa holders cannot cease work for their approved employer for more than 60 consecutive days; and
3. how LWOP provisions operate in the context of sponsorship obligations, see: Sponsorship compliance framework: Sponsorship obligations.

For any LWOP it is expected that:

1. the arrangement is mutually agreed upon by the sponsor and sponsored person; and
2. there is a formal application for leave without pay that has been formally approved by the employer (including leave applications that are processed and approved electronically).

It is also important to note LWOP will affect eligibility for permanent residence under the Employer Nomination Scheme Subclass 186 visa when seeking to apply under the 2 year transitional pathway.

Unauthorised absences from work
A TSS visa holder who is absent without leave (AWOL) from, or who abandons, their employment, may be regarded as having ceased employment if the employer has attempted to give notice that employment will cease, or has ceased, on a particular date, and that date has passed.

Periods spent outside of Australia
As TSS visas enable multiple entries to Australia, visa holders who spend periods outside Australia are not considered to have ceased employment solely because they are or have been absent from Australia. If a visa holder spends significant periods outside Australia, it may be an issue as there may be no continued need for the TSS visa.

Provided the visa holder has not ceased employment and there are reasonable grounds for the visa holder to be regularly absent from Australia, the visa holder will not be considered to be in breach. Under policy, legitimate circumstances in which a TSS visa holder is regularly absent from Australia include:

1. fly in/fly out arrangements are common in some industries and can be a legitimate reason why a visa holder is regularly absent from Australia; or
2. the TSS visa holder may be responsible for managing work on a project outside Australia and, although the position is based in Australia with an Australian company, performing the duties of the position may involve being regularly absent from Australia.

‘Exempt occupations’
There are a very limited number of occupations where the visa holder’s position is not required to be in the business of the sponsor or an associated entity of the sponsor. This enables the TSS visa holder to be engaged as an independent contractor by the sponsor or an associated entity of the sponsor and may work for multiple employers, either simultaneously or consecutively.

These can include Chief Executive or Managing Director, Corporate General Manager and medical practitioners. This is primarily to accommodate the flexible employment arrangements typically associated with medical practitioners, and general managers of companies who might sit on more than one corporate board.

As you navigate the complexities of TSS Visa and the employment restriction, remember that we are here to support you every step of the way. If ever in doubt or if you need further clarification, don’t hesitate to reach out. Our team is ready to assist you and ensure a smooth journey for both you and your employees.