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TSS 482 visa – Direct employer or associated entity

TSS 482 visa -Direct employer or associated entity

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).

Note:

The visa holder, in the course of working for their direct employer, may be expected to perform activities that require them to work on the premises of, or use the tools of, another business to complete their work. Physically working at the premises of an unrelated business is not itself indicative of the absence of a direct employer-employee relationship.
- It would, for example, remain within the scope of the standard TSS visa program, if an accounting firm (the sponsor) contracted to perform an external audit of another unrelated company’s account has one of their TSS visa holders work onsite with the unrelated company for a short period – as long as they retain control over all of the staff member’s actions and work tasks and could recall the staff member to continue their work in the accounting firm’s own premises at any time.
But if the sponsor shares, with another business, control of some or all of the aspects of a direct employer-employee relationship, they would be considered to be supplying labour to an unrelated business and would not be able to satisfy TSS visa requirements.
- It would, for example, not be within the scope of the standard TSS visa program for an on-hire business to place a TSS visa holder in another company’s business to fill a short term vacancy – this is because the on-hire company would still be the visa holder’s employer and pay them, but they would work to the standard set out by the receiving company on tasks assigned by that company.
- A large multinational ICT company engages in a diverse range of ICT-related business activities from the provision of ICT services to other large companies by a large number of staff (including TSS visa holders) to the provision of individuals with specialist skills as requested to work in client companies. At the former end of the scale the business is clearly directly employing these workers, while at the latter end of the scale the business is clearly supplying labour to unrelated companies.

Am I eligible for a TSS 482 visa?