Direct Employment Requirement Explained in the TSS 482 Visa Program

Direct Employment Requirement Explained in the TSS 482 Visa Program

Under the Temporary Skill Shortage (TSS) 482 visa program, a visa applicant must be employed in the nominated occupation. Unless the occupation is listed as exempt in the legislative instrument, the position must be located:

Within the sponsoring business (for overseas businesses), or
Within the sponsoring business or an associated entity (for Australian businesses).

The aim of this requirement is to ensure that the sponsor (or an associated entity for Australian businesses) and the visa applicant maintain a direct employer-employee relationship, unless the occupation is exempt under the relevant legislative instrument.

This rule prevents labour hire companies from recruiting and supplying 482 visa holders to unrelated businesses without first negotiating a labour agreement. The exceptions in the legislative instrument are designed to allow certain highly skilled workers to operate in jobs requiring flexibility between employers, such as general managers on multiple boards or medical professionals working in different hospital clinics.

Key elements of a direct employer-employee relationship include:

• Engaging the employee in a formal contract
• The ability to hire or dismiss the employee
• Providing a work environment including tools/materials/workplace         settings
• Assigning tasks, supervising and evaluating the employee’s work
• Paying the employee’s salary
• Complying with tax obligations, such as withholding PAYG taxes
• Providing employment conditions such as leave and superannuation etc.

The sponsor must assume these responsibilities unless the sponsor and employer are associated entities under the Corporations Act 2001 (for Australian businesses).

Note: A visa holder may work at another company’s premises if required by their role, but this does not negate the direct employer-employee relationship. For instance, an accounting firm sponsoring a 482 visa holder could send that employee to a client’s office for an audit, as long as the firm retains full control over their tasks and can recall the employee. However, if another business controls the employee’s tasks or environment, it would be considered labour hire, which requires a separate labour agreement.