Policy and Guidelines
Introduction
In circumstances where a suitable Australian citizen or permanent resident cannot be found to do the skilled work, consideration may be given to offering employment to a suitable person from overseas to fill a position, in a school or other Department workplace.
Any action to fill a vacancy with an overseas worker can only be considered within the context of the Department's normal staffing policies and procedures.
Prior to considering the employment of an overseas skilled worker, it first needs to be determined whether the overseas worker is eligible to apply for a visa on their own, without the support of an employer. The overseas worker should be encouraged to seek independent advice and assistance from a registered migration agent on their visa options.
If the person is not eligible on their own, to apply for a visa that will enable the person to reside and work in Australia, then consideration may be given to sponsoring the person's employment. Possible visas that may be considered for this purpose are included below.
Temporary Skill Shortage (subclass 482) visa
The Temporary Skill Shortage (TSS) visa enables employers and approved sponsors to address labour shortages by bringing in skilled workers where employers can't source an appropriately skilled Australian worker for either a 4 or 2 year period depending on whether the occupation is listed on a medium and long-term strategic skilled list, short-term skilled occupation list or the regional occupation list (for regional employers). Detailed information about sponsoring a skilled worker for a TSS visa is available from the Australian Government Department of Home webpage:
Skilled Employer Sponsor Regional (Provisional) (subclass 494) visa
The Skilled Employer Sponsor Regional (SESR) visa commenced on 16 November 2019 and enables employers and approved sponsors to address labour shortages by bringing in skilled workers where employers can't source appropriately skilled Australian workers in regional locations for up to 5 years. Subclass 494 visas may contribute to eligibility for a Permanent Residence Skilled Regional (subclass 191) which will be available from 16 November 2022. Further information about the SESR visa is available from the Home Affairs webpage:
Employer Nomination Scheme (subclass 186)
Employers may use the Employer Nomination Scheme (ENS) to sponsor and recruit to a skilled job vacancy on a permanent basis either highly-skilled staff from overseas or temporary residents currently in Australia. More information about the ENS is available from the Home Affairs webpage:
Further information on visas including information for employers, is available from Department of Home website.
Employment and sponsorship of a visa holder in a school-based position
School councils are responsible for sponsoring overseas workers in schools and must meet all the sponsorship obligations of the arrangement. Where an overseas worker is selected for a school-based vacancy and the school council has decided to sponsor the person, the overseas worker may be offered employment in one of two ways:
1. School council sponsorship and direct employment by the school council
The school council may sponsor the overseas worker and directly employ the overseas worker in accordance with Part 2.3 of the Education and Training Reform Act 2006 and within the terms and conditions of Ministerial Order 1039. Note that school councils are only permitted to sponsor and employ teaching staff for maximum periods of 12 months (which limits an approval period to 12 months). An education support class employee may be employed on a fixed term basis. Information about the letter of offer that is to be used is available on the Resources tab.
2. School council sponsorship and employment by the Department
The school council may sponsor an overseas worker. This type of arrangement is permitted because under the Migration Act and the Migration Regulations 1994, a sponsor of a visa holder (the school council) may allow a visa holder to work for an 'associated entity' of the sponsor (the Department Secretary). However, at all times the school council will remain responsible for the overseas worker and must comply with all of the sponsorship obligations while the person is employed by the Department. Information about the letter of offer that is to be used is available on the Resources tab.
Employment and sponsorship for a visa holder in a public service position
Where employment of an overseas worker is being considered for a public service position, the manager must seek approval from the Secretary through the Executive Director, People Division. The work unit will remain responsible for the overseas worker and must comply with all of the sponsorship obligations while the person is employed by the Department.
Visa requirements
Prior to offering employment to a skilled worker who is not an Australian citizen or permanent resident in Australia, a copy of the worker's visa documentation indicating their current visa status, including a copy of their Visa Grant Notice from the Department of Home (Home Affairs) should be sought. The employer must be satisfied that:
- the visa provides the overseas worker with sufficient work rights to undertake the position at the school or workplace
- the overseas worker's qualifications have been assessed and that they meet the professional registration and licensing requirements for the position to be offered to the person
- the overseas worker is not offered employment beyond the expiry date of their visa
- the overseas worker is not subject to any work conditions that place restrictions on the employment of the overseas worker (for example, that limit the number of hours or the period of employment that may be offered to him or her). Where this is the case, any employment offered must be consistent with the conditions listed on their visa
- the overseas worker is provided with a letter of offer that contains additional terms and conditions for the employment of an overseas worker
Employers who sponsor skilled workers for a visa must comply with all of the sponsorship obligations related to the sponsored person. These can be quite onerous and can have significant financial implications. There are also serious sanctions for non-compliance. As such, it is strongly recommended that school councils and managers carefully consider the sponsorship obligations before applying to become a sponsor or nominating someone for sponsorship.
Reasonable steps are to be taken to regularly confirm that an overseas worker is not employed in breach of their visa conditions. There are heavy penalties under the Migration Act 1958 (Cth) for employers who allow an overseas worker to work in breach of their visa conditions or without a valid visa.
The preferred method of checking visa details is to register for the Home Affairs free online Visa Entitlement Verification (VEVO) service and to obtain consent from the overseas worker for a VEVO check to be done. Alternatively, the person can be asked to send their visa details directly to an employer using VEVO email. A template VEVO Consent Form is available on the Resources tab.
Home Affairs recommends that employers should check the VEVO service or request a VEVO email every 3 months as evidence that the employer regularly took steps to confirm the employee's permission to work. This should occur with any employee holding a temporary visa, such as a working holiday visa, partner visa, student visa or bridging visa.
Information about the VEVO service is available from the Department of Home website.
School councils and managers must pay the sponsorship and nomination application fees associated with the sponsorship arrangement. The overseas worker is responsible for the payment of the visa application fees.
Reviewed 11 October 2021
