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Skilling Australians Fund (SAF) is given Royal Assent
Migration Amendment (Skilling Australians Fund) Act 2018 (“The Act”) received Royal Assent on 22 May 2018. The Act formally abolishes sponsorship Training Benchmark A and Training Benchmark B and clarifies provisions relating to employer sponsored labour market testing requirements (LMT). The Act implements a levy payable at the time the nomination is lodged for a particular visa subclass, namely subclass 482, subclass 186 and subclass 187 visa.
The actual date of implementation of the levy remains unclear. As per schedule I of the Act, the implementation may occur on proclamation date or if no proclamation date is give, six months within the Royal Assent, being 22 November 2018. Migration Alliance brings you the first analysis of the Act.
The following sections are worthwhile mentioning:
S140ZM Nomination training contribution charge
(1) A person is liable to pay nomination training contribution charge to the Commonwealth in relation to a nomination by the person under section 140GB if the nomination is a nomination of a kind prescribed by the regulations.
(2) A person applying under the regulations, or in accordance with the terms of a work agreement, for approval of a nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a visa, is liable to pay nomination training contribution charge to the Commonwealth in relation to the nomination if:
(a) the visa is of a kind (however described) prescribed by the regulations; and
(b) the nomination is a nomination of a kind prescribed by the regulations.
140ZN Regulations about nomination training contribution charge
(1) The regulations may make provision for, or in relation to, all or any of the following matters:
(a) when nomination training contribution charge is due and payable;
(b) the method of paying nomination training contribution charge (including the currency in which the charge must be paid);
(c) the remission or refund of nomination training contribution charge;
(d) the overpayment or underpayment of nomination training contribution charge;
(e) the payment of a penalty in relation to the underpayment of nomination training contribution charge;
(f) the giving of information and keeping of records relating to a person’s liability to pay nomination training contribution charge.
(2) For the purposes of paragraph (1)(e), the penalty payable must be a civil penalty not exceeding 60 penalty units.
It should be noted that accompanying Regulations are yet to be released. Therefore definition of “person” should be interpreted within the ordinary meaning of the Migration Act.
140ZQ Division binds the Crown
(1) This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
(2) However, this Division does not make the Crown liable to be prosecuted for an offence.
(3) To avoid doubt, subsection (2) does not prevent the Crown being liable to pay a pecuniary penalty under this Division.
Regulations relating to this section will likely deal with methods of dividing the levy amongst the states. As it is understood, the agreement between the states in terms of how the levy is to be divided is yet to be reached.
Labour Market Testing
The following sections address labour market testing:
14A At the end of subsection 140GBA(4)
Add “The period must not start earlier than 4 months before the nomination is received by the Minister.”.
The above section amends labour market testing (LMT) period to be undertaken within 4 months of the 482 nomination being lodged.
15 Subsections 140GBA(5), (6) and (6A)
Repeal the subsections, substitute:
(5) For the purposes of paragraph (3)(aa), the Minister may, by legislative instrument, determine the manner in which labour market testing in relation to a nominated position must be undertaken.
(6) Without limiting subsection (5), the Minister may determine the following:
(a) the language to be used for any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the approved sponsor;
(b) the method of any such advertising;
(c) the period during which any such advertising must occur;
(d) the duration of any such advertising.
(6AA) The Minister must not make a determination under subsection (5) unless the Minister is reasonably satisfied that any advertising of the position undertaken in the determined manner:
(a) will be targeted in such a way that a significant proportion of suitably qualified and experienced Australian citizens or Australian permanent residents would be likely to be informed about the position; and
(b) will set out any skills or experience requirements that are appropriate to the position.
(6AB) A duration determined for the purposes of paragraph (6)(d) must be at least 4 weeks.
(6A) For the purposes of subparagraph (3)(b)(i), the Minister may, by legislative instrument, determine kinds of evidence that must accompany a nomination.
(6B) Without limiting subsection (6A), the Minister may determine that a copy of any advertising mentioned in subsection (6) must accompany a nomination.
(6C) Without limiting subsection (5) or (6A), the Minister may prescribe different manners or evidence for different nominated positions or classes of nominated positions.
The above paragraphs will allow the Minister to amend the regulations accordingly in order to specify the type of supporting material to be presented in order to meet the LMT requirement. As noted, earlier, the Regulations are yet to be released therefore the practical implication of this section remains unclear.
Transitional Provisions:
The Act offers no transitional arrangements other than those specified in the Policy Mainly relating to International Trade Obligations and these are limited to LMT (SAF Levy will remain payable)
Summary:
The SAF levy will replace the current training benchmark requirement, reducing the regulatory burden on employers and providing improved training outcomes for Australians. Employers will not be simultaneously subject to the SAF levy and the existing training benchmarks. Standard business sponsorship applications lodged prior to the implementation date will not be assessed for compliance with the training benchmarks – this includes whether or not start-up businesses who have lodged a subsequent sponsorship application have complied with a previously provided auditable training plan.
Once the Act commences employers will be liable to pay the Levy for each TSS/186 and RSMS nomination. The levy will be payable in full at the time the worker is nominated, and will depend on the size of the business as well as the subclass the nomination is lodged against. The levy will not apply to dependent TSS visa applicants or to existing 457 visa holders. Employers wishing to nominate TSS visa ENS / RSMS visas with a small annual turnover less than $10 million will be liable to pay $1200 per year for TSS nomination or part thereof or $3000 one-off for ENS/RSMS nominations. Other businesses $1800 per year for TSS nomination or part thereof $5000 one-off or ENS/RSMS nominations.
The link to the relevant legislation can be found here:
https://www.legislation.gov.au/Details/C2018A00038/Download
https://www.legislation.gov.au/Details/C2018A00039/Download
Comments
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Thursday, 24 May 2018Hi Rob,
It is $ 1200 each year for TSS visa for companies turning over less than 10 mill.
Regards,
Yona -
Thursday, 24 May 2018Robert,
The legislation covers the amounts as well as specific nomination criteria which can be downloaded here:
https://www.legislation.gov.au/Details/C2018A00038/Download
https://www.legislation.gov.au/Details/C2018A00039/Download
I strongly suggest doing due diligence and checking the amount prior to advising your clients as these are subject to change and the above article should be used for information purposes rather than assessment.
I will also cover SAF specifics at tonight's webinar (and subsequent ones held in June). You are welcome to join:
https://legaltrainingaustralia.com/webinar-cpd/
Hope this helps. -
Thursday, 24 May 2018Check this out....( It is from the EM)
140ZN(1)(c)
New section 140ZM sets out when a person is liable to pay a nomination training contribution charge under section 140GB.
28. New subsection 140ZM(1) provides that a person who nominates an applicant or proposed applicant for a visa under amended section 140GB is liable to pay a nomination training contribution charge if the nomination is a nomination of a kind prescribed by the regulations.
29. The effect of this amendment is that a person who nominates an applicant or proposed applicant for a prescribed visa under section 140GB will be liable to pay a nomination training contribution charge in association with the nomination. New paragraph 140GB(2)(ab) makes it a condition of approval of the nomination that the nominator is an approved sponsor. However a person does not need to be an approved sponsor at the time of making a nomination application under amended subsection 140GB(1). It is possible that a person’s application to be an approved sponsor may be subsequently refused (and the nomination application is refused as a consequence). Provision may be made for the remission or refund of a nomination training contribution charge pursuant to n ew paragraph 140ZN(1)(c) (see new section 140ZN below).
I have heard that the policy underpinning the new regulation will only provide for a refund on a refusal if the refusal was on health or character grounds.
Can someone see whether this is correct? -
Thursday, 24 May 2018
Hi Chris,
I have heard that the policy underpinning the new regulation will only provide for a refund on a refusal if the refusal was on health or character grounds.
The above is correct as this is what I was advised at the conference I attended recently. However, given that the regs as well as policy is yet to be published, we need to hang tight and see what they say. -
Thursday, 24 May 2018
Hi,
A search on the assented bills of parliament does not show this bill as assented.
where are you getting your information from? -
Thursday, 24 May 2018
Rob,
Both pieces of legislation are published here:
https://www.legislation.gov.au/Details/C2018A00038/Download
https://www.legislation.gov.au/Details/C2018A00039/Download -
Thursday, 24 May 2018
the Parliamentary website under 'Parliamentary Business' says that the amending Act No:39 of 2018 was assented to on the 22 May.
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Thursday, 24 May 2018
how much will be payable if an existing 457 visa is transferred to a new sponsor and the 457 visa remains in place for eg 2 years 8 mths?
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Monday, 28 May 2018
In your previous email on the SAF Levy you mentioned that currently lodged 482 and 186 applications that have not been decided might still have to pay the SAF - is that correct?
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Wednesday, 15 August 2018
How can the payments for SAF be made ?
Immigration blog
" Small (annual turnover less than $10 million) will be liable to pay $1200 per year or part thereof $3000 one-off. Other businesses $1800 per year or part thereof $5000 one-off."
VERY BADLY WRITTEN. IF it is paid in full at the nomination, how much is it for a business with a turnover less than $10M - $1200 per year or $3000?