457 visa - sponsorship obligations - penalties

When applying for Subclass 457 Business Sponsorship approval employers need to meet the "Training Benchmark" requirement.
 
The training benchmark requirements must continue to be met throughout the life of a Subclass 457 Business Sponsorship approval but many employers forget about this once the sponsorship is approved.
If a business fails to meet the training requirement it can result in:

• Cancellation of sponsorship and associated sponsored visas
• Sponsorship Bars - preventing you from sponsoring more 457 visa holders Fines of over $10,000 can apply for each breach
• Bar from being able to sponsor for other visa categories such as permanent Employer Nomination Scheme (ENS) (subclass 186) visas
• issues in renewing Standard Business Sponsorship (SBS) approval

Businesses need to keep records of training and be able to show they meet the training benchmark for each 12 month period after approval of the sponsorship.


Nevett Ford Lawyers can provide legal advice and assistance on the 457 sponsorship obligations and application process in general.

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457 Visas: Employer and employee obligations

457 Visas: Employer and employee obligations

The highly publicised troubles of the 7-Eleven group highlights the need for all employers to be aware of their obligations to their employees, particularly if they are employing foreign workers. The current media attention centres around allegations  that foreign workers were paid at rates lower than should be paid for the type of work being done.

 

All employers are subject to scrutiny pursuant to the provisions of the Fair Work Act; in addition, employers of persons on 457 visas are subject to monitoring by the Department of Immigration and Border Protection.

 

From 1 June 2013, employers engaging or contracting legal workers face significant civil penalties up to $76,500 if it can be established that the employer:

 

• has allowed the person to work or does not have a visa,
• has allowed a person to work without a proper work condition,
• has referred a person to work who falls under the above categories, or, has participated in an arrangement where an illegal worker is allowed to work.
   

Employers who are investigated in respect of any of the above breaches must be able to prove that reasonable steps have been taken to verify that an employee or contractor had appropriate permission to work.

 

Two of the most common ways for foreign workers to be employed in a business are first, via the 457 program or second, as students who hold work rights.

 

Available statistics indicate that as at the end of June 2012 the number of businesses employing 457 Visa holders exceeded 22,000. This represented in excess of 160,000 primary and secondary visa holders, all with work rights.

 

Businesses which employ 457 Visa holders are approved by the Department of Immigration as sponsors, and part of the sponsorship process involves the sponsor agreeing to assume a number of obligations which may be subject to monitoring by the Department. Included in these obligations is an undertaking to ensure that the employed worker is to be remunerated appropriately for the role.

 

It is not necessary to have a sponsorship in place in order to employ students, and therefore no formal monitoring is involved. Nevertheless, businesses employing students are obliged to comply with the law and must verify that the students have proper work permissions. Normally students are permitted to work up to 20 hours a week while courses are in session and full-time during vacation periods.

 

Nevett Ford lawyers are specialised in all areas of migration and can advise you on your obligations in relation to employment of foreign workers, as well as providing migration advice to those wishing to apply for an Australian visa.

 

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Significant Fines for Breaches

The owners of Dave’s Noodles, a noodles restaurant in Launceston have been fined $100,000 for underpaying a Chinese chef on a 457 Visa, and creating false wage records.

Over a period of four years the chef received a shortfall of $86,000 and eventually lodged a complaint with the Fair Work Ombudsman. When his claim was investigated the inspectors discovered the worker was being paid at a flat rate based on a 38 hour week while his employers were requiring him to work 60 hours per week.

The owners compounded their culpability by requiring the chef to sign false time and wage sheets for migration purposes, thereby making it clear that they knew that what they were doing was wrong.

In addition to imposing a fine the Federal Court ordered the employee be paid what was owed to him. The Court pointed out that the worker was in a vulnerable position, having to rely on the employer  in order to able to stay in Australia, and observed that the fraudulent paperwork was ‘particularly disturbing behaviour’.

This case highlights that employers who breach their sponsorship obligations and by doing so, impact on the rights of vulnerable members of the community, will be dealt with severely by the courts. 

Contact our specialist Australian Migration Lawyers for any questions about this article or Australian migration and visas.

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Attention 457 business sponsors - Powers of immigration inspectors

Sponsoring and nominating employees from overseas to Australia on 457 visas requires your business to comply with a range of obligations. Nevett Ford Lawyers can provide guidance to ensure full compliance with Immigration Laws and Regulations, which constantly change. The Department of Immigration conducts random checks of businesses and we can help you to ensure that your business is complying.

Immigration inspectors have powers under the Migration Act 1958 that provide the mechanism for the department to investigatesponsor compliance with the visa program requirements.

Inspector powers include the right to:

• enter business premises
• require a 'person' to produce a record or document
• inspect and make copies of records or documents
• interview 'persons' while at premises.

For the purposes of exercising inspector powers, a 'person' includes a natural person or a body corporate.

The purposes for which the powers of an inspector may be exercised are:

• to determine whether a term or a condition of a work agreement is being, or has been, complied with (e.g.in relation to a 457 visa holder employee);
• to determine whether a prescribed circumstances to bar a sponsor or cancel the approval of a person as a sponsor exists;
• investigate a circumstance, if a circumstance exists or has existed, in order to assist the Minister (or delegate) in determining what (if any) action to take under section 140M of the Migration Act 1958.

Nevett Ford Lawyers can provide audit services for employers to ensure that your immigration law obligations are being met to minimise risk. This includes advising your business on potential breaches and managing non-compliance issues on your behalf with the Department of Immigration to resolve them.

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2014-15 Budget Overview: Australia's Migration Programme; Migration programme size

2014-15 Migration programme size

The 2014-15 Migration Programme remains the same at 190,000 places and maintains the composition of:

-128,550 Skilled Stream places

-60,885 Family Stream place, and 

-565 Special Eligibility Stream places.

Nevett Ford will provide more details of the Budget measures as they emerge.

For any queries related to Australian immigration, please contact our specialist immigration team. 

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DIBP and Customs become Australian Border Force effective 1/7/2015

From 1 July 2015, the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service will become a single agency: Australian Border Force.

For any questions related to Australian immigration, please contact our specialist immigration team.

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NEVETT FORD LAWYERS - SUBCLASS 457 VISA SPECIALISTS

Australian businesses often need to recruit overseas workers to meet their business requirements and ‘human capital’ needs.  Nevett Ford Lawyers provides tailored solutions in relation to all business sponsorship arrangements.

Our immigration law and visa services include:

• Advice on business sponsorship obligations and undertakings
• Obtaining business sponsorship arrangements for your business
• Sponsorship compliance advice, including sponsorship monitoring, audits and business site visits by the Department of Immigration & Citizenship (DIAC)
• Advice and assistance on negotiating approval under the Labour Agreement arrangements
• Assistance and advice on work rights, verification of work rights, risk management, human resources and recruitment protocols
• Advice in relation to sponsorship obligations, sanctions and penalties
• Assistance and advice with skills assessment requirements, including recognition of overseas qualifications and registration requirements

VISA SERVICES

Nevett Ford Lawyers can assist in all aspects of business sponsorship, including:-

• Sponsorship by Australian business
• Sponsorship by overseas business
• Labour Agreements
• Regional sponsored migration scheme
• Employer nomination scheme.

MIGRATION LAW SPECIALITY

Nevett Ford Lawyers is a general practice law firm and the migration team includes an accredited immigration law specialist.  In addition to tailored migration law and visa services, Nevett Ford Lawyers is supported by our employment, commercial and corporate legal teams.  This enables us to provide businesses with end-to-end legal advice and assistance.  Our migration law team currently provide advice and assistance to domestic and multinational corporations in the following sectors:

• Engineering
• Mining
• Manufacturing
• Information Technology (IT)
• Recruitment
• Health & medical, including nursing
• Construction
• Retail
• Tourism
• Education
• Aviation
• Hospitality
• Agriculture

Nevett Ford Lawyers can assist your business to ensure compliance with the complex migration law and policy requirements.

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