The migration team at Nevett Ford Lawyers can
provide advice on all aspects of the following 457
sponsorship obligations, including the monitoring and reporting procedures to
ensure compliance. The team of 5 immigration lawyers includes an accredited
immigration law specialist and all team members are registered migration
agents.
Please let us know if you would like us to
provide your organization with a quotation to conduct an audit to determine your
current level of compliance with the sponsor obligations.
SPONSOR OBLIGATIONS
All employers of subclass 457
visa holders have obligations as sponsors. Some obligations apply beyond the
term of an employer's approval as a sponsor.
As a sponsor you must:
- cooperate with inspectors
- ensure equivalent terms and conditions of employment
- keep records
- not participate in discriminatory recruitment practices
- provide information to Immigration when certain events occur
- ensure that the skilled worker works or participates in the nominated
occupation, program or activity
- not recover certain costs from a skilled worker or their family
- pay travel costs to enable sponsored people to leave Australia
upon cessation of employment if they are not transferring their 457 visa to another sponsor (if a request is
made in writing by the 457 visa
employee)
- pay costs incurred by the Commonwealth to locate and remove
unlawful non-citizens.
MONITORING
You must comply with your obligations as a sponsor. Immigration monitor
how well you are complying and whether the visa holders are keeping their visa
conditions.
Immigration monitor you while you are a sponsor and for up to five years
after you cease being a sponsor. Immigration do this routinely and in response
to information provided to Immigration, and in three main ways:
- exchanging information with other Commonwealth, state and territory
government agencies, including the Department of Education, Employment and
Workplace Relations and the Australian Taxation Office
- writing to you to ask for information in accordance with the
obligation to provide records and information
- site visits, usually to the sponsored business premises, with or
without notice.
You could also be investigated by Commonwealth inspectors who have
investigative powers under the Migration Act 1958.
Failure to cooperate with inspectors is a breach of the sponsorship
obligations.
SANCTIONS FOR NOT MEETING YOUR
SPONSOR OBLIGATIONS
If you do not meet your obligations, Immigration could take one or more
of the following actions:
Administrative
- you could be barred from sponsoring more
people for a specified time
- you could be barred from applying for approval to be a sponsor, in
relation to this visa or another one
- all of your existing approvals as a sponsor could be cancelled.
Civil
- Immigration can apply to a court for a civil penalty order of up to
AUD33 000 for a corporation and
AUD6 600 for an individual for
each failure
- Immigration can issue an infringement notice of up to AUD6 600 for a body corporate and AUD1 320 for an individual for each failure.
Other circumstances in which administrative action might be taken
In addition, you could also have sanctions imposed
if:
- you provide false or misleading information to Immigration or the
Migration Review Tribunal
- you no longer satisfy the criteria for approval as a sponsor or for
variation of a term of that approval
- you have been found by a court or competent authority to have
contravened a Commonwealth, state or territory law
- the person you have sponsored breaks a law relating to the
licensing, registration or membership needed to work in the nominated
occupation.
THE SPONSOR OBLIGATIONS
1. Cooperate with
inspectors
You must cooperate with inspectors appointed under the Migration Act 1958 in determining whether:
- a sponsorship obligation is being, or has been, complied with
- there are other circumstances in which Immigration could take
administrative action in relation to your other obligations.
- This obligation:
- starts on the day the sponsorship is approved
- ends five years after the day the approved sponsorship ceases.
A workplace inspection could include:
- a desk audit or a visit in person, announced or unannounced, by our
officers to your workplace
- officers performing a number of checks, such as examining financial
and payroll records and interviewing sponsors, company directors and
staff, including sponsored workers and Australian employees.
The role of an inspector is to determine whether:
- you are complying (or have complied) with your sponsorship
obligations
- there are other circumstances in which Immigration could take
administrative action.
Cooperating with inspectors can include (but is not limited to):
- providing access to premises
- producing and providing documents within the requested
timeframe
- providing officers with access to a person who has custody of, or
access to, a record or documents
- providing officers with access to interview any person.
2. Ensure
equivalent terms and conditions of employment
If you are a standard business sponsor, you must show that you are
providing no less favourable terms and conditions of employment to the skilled
worker than you would provide to an Australian performing equivalent work in
the same workplace.
This obligation does not apply to a sponsor if the annual earnings of
their sponsored visa holder are equal to, or greater than AUD250 000.
Sponsors who are parties to a labour agreement must ensure that overseas
workers receive remuneration as specified in the agreement.
This obligation applies from the day a skilled worker is granted a
subclass 457 visa.
If the skilled worker already holds a subclass
457 visa, this obligation starts to apply on the day their
nomination is approved.
This obligation ends on the day the skilled worker stops working for you
or on the day they are granted a further substantive visa (other than a
subclass 457 visa). If the skilled
worker is granted another subclass 457
visa to continue to work for you, this obligation continues.
3. Keep records
You must keep records that show your compliance with your sponsorship
obligations. All of the records must be kept in a reproducible format and must
be capable of verification by an independent person. Records that must be kept,
in addition to records that must be kept under other Australian Government, and
state or territory laws, include the following:
- records of written requests for payment of outward travel costs for
a skilled worker or their family, including when the request was received
- records of how the outward travel costs were paid
- records of notifying Immigration of an event required to be
reported to Immigration, including the date and method of notification and
where the notification was provided
- records of tasks performed by the skilled worker in relation to the
nominated occupation and where the tasks were performed
- records of money paid to the skilled worker
- records of money applied or dealt with in any way on behalf of the
skilled worker or as the skilled worker directed
- records of non-monetary benefits provided to the skilled worker,
including the agreed value and the time at which, or the period over
which, those benefits were provided
- if there is an equivalent worker in your workplace, a record of the
terms and conditions that apply to the equivalent worker, including the
period over which the terms and conditions applied
- if you are a party to a labour agreement, the records required to
be kept under the labour agreement.
The obligation to keep records applies from the day the sponsorship is
approved or labour agreement commences.
It ends two years after both:
- the approved standard business sponsorship or the labour agreement
ceases
- you cease to be a sponsor.
You do not need to keep any records for more than five years.
You must provide these records or information to Immigration in the
format and timeframe that Immigration specify.
4. Provide
information to the department when certain events occur
You must provide information to Immigration when certain events occur.
This information must be provided by registered post or electronic mail to a
specified address and within certain timeframes of the event occurring.
This obligation starts to apply on the day the standard business
sponsorship is approved or the labour agreement commences.
It ends two years after both:
- the approved standard business sponsorship or the labour agreement
ceases
- you cease to be a sponsor.
Changes or events that all
sponsors must notify within 10
working days
You must notify Immigration within 10
working days if:
- the skilled worker’s employment ceases, or is expected to cease
(the sponsor must notify Immigration if a cessation date changes)
- there are changes to the work duties carried out by the skilled
worker
- you are a standard business sponsor and there is a change to the
information in the sponsorship application or the application to vary a
term of sponsorship approval relating to the training requirement and the
sponsor’s address and contact details
- if you are a party to a labour agreement and a change to the
address and contact details or the training information provided in the labour
agreement
- you have paid the return travel costs of a skilled worker or any of
their family members in accordance with the obligation to pay return
travel costs
- you have become insolvent within the meaning of subsections 5 (2)
and (3) of the Bankruptcy
Act 1966 and section 95A of the Corporations Act 2001
- your business ceases to exist as a legal entity.
If your business is a company
A company must also notify Immigration of the following changes or
events within 10 working days if:
- a new director is appointed
- an administrator is appointed for the company under Part 5.3A of the Corporations Act 2001
- the company resolves by special resolution to be wound up
voluntarily under subsection 491(1) of the Corporations Act 2001
- a court has ordered that the company be wound up in insolvency
under Part 5.4, or on other
grounds under Part 5.4A, of the
Corporations Act 2001
- a court has appointed an official liquidator to be the provisional
liquidator of the company under Part 5.4B
of the Corporations Act 2001
- a court has approved a compromise or arrangement proposed by the
company under Part 5.1 of the Corporations
Act 2001
- the property of the company becomes subject to a receiver or other
controller under Part 5.2 of
the Corporations Act 2001
- procedures are initiated for the deregistration of the company
under Part 5A.1 of the Corporations Act 2001.
If you are an individual
If you operate your business as an individual, you must also notify Immigration
of the following changes or events within 10
working days:
- you enter into a personal insolvency agreement under Part X of the Bankruptcy
Act 1966
- you enter into a debt agreement under Part IX of the Bankruptcy
Act 1966
- a sequestration order is made against your estate under Part IV of
the Bankruptcy Act 1966
- you become a bankrupt by virtue of the presentation of a debtor’s
petition under Part IV of the Bankruptcy Act
1966
- you present a declaration of intention to present a debtor’s
petition under Part IV of the Bankruptcy Act
1966
- a composition or scheme of arrangement is presented in relation to
you in accordance with Division 6
of Part IV of the Bankruptcy Act 1966.
If your business is a
partnership
You must also notify Immigration of the following changes or events
within 10 working days:
- a new partner joins the partnership
- any of the events listed for an individual or a company occurs.
If your business is an
unincorporated association
An unincorporated association must also notify Immigration within 10 working days if:
- a new member is appointed to the managing committee of the
association
- any of the events listed for an individual or a company occurs.
Where to send a notice of an
event or change
You must send details of these events to one of our offices in the state
or territory in which the head office of your business is located.
5. Ensure that the
skilled worker works in the nominated occupation
You must ensure that the skilled worker does not work in an occupation
other than what was identified in the most recently approved nomination for
that person.
If you want to employ a skilled worker in a different occupation, you
must have a new nomination approved. You must also ensure that you do not
engage the skilled worker's services other than as a direct employee.
There are two exceptions to this rule:
- a standard business sponsor operating in Australia can employ the
skilled worker in an associated entity
This obligation applies from either:
- the day the skilled worker is granted a subclass 457 visa
- the day your nomination for the skilled worker is approved, if the
skilled worker already holds a subclass 457
visa.
It ends on the earliest of the following:
- the day your application to nominate a skilled worker is approved
- the day the skilled worker is granted a further substantive visa
(other than a subclass 457
visa). The obligation continues if the skilled worker is granted another
subclass 457 visa to continue
to work for you
- the day the skilled worker has left Australia and no longer holds
a visa.
6. Recovery of
certain costs from a skilled worker or their family
You must not recover, or seek to recover, from the person you have
sponsored for this visa, all or part of the costs (including migration agent
costs):
- of recruiting the person you sponsored for the position
- of becoming or being a sponsor or former approved sponsor
- of providing financial support to the person you have sponsored
while they are in Australia.
This obligation:
- starts on the day the sponsorship is approved
- ends on the following two events:
- the approved sponsorship ceases, and
- you are no longer sponsoring anyone.
7. Pay travel costs
to enable sponsored people to leave Australia
You must pay reasonable and necessary travel costs to enable the person
you have sponsored and their family members to leave Australia. The person or their
family must ask in writing for you to pay the costs. Immigration can also ask
on their behalf.
The costs will be considered reasonable and necessary if they include
all of the following:
- travel from the sponsored persons’ usual place of residence in Australia to their place of departure from Australia
- travel from Australia
to the country (for which the person holds a passport) specified in the
request
- economy class air travel or, where that is not available, a
reasonable equivalent.
Travel costs must be paid within 30
days of receiving the request.
This obligation starts on the day:
- the visa is granted (if the person does not already hold a visa in
this subclass)
- your nomination is approved (if the person already holds a visa in
this subclass).
This obligation ends on the day (whichever is the earliest):
- another sponsor has their nomination application for the same
person approved
- the person you have sponsored is granted a further substantive visa
of a different subclass to the one they last held, and their new visa does
not require them to work for you
- the person you have sponsored has left Australia and the relevant
visa (and any subsequent bridging visa) is no longer valid.
8. Pay costs to
remove an unlawful non-citizen
You are liable for any cost if the person you have sponsored or any of
their family members go missing or will not voluntarily leave the country. In
such cases, they will be unlawful non-citizens, and you will have to pay the
costs of locating and removing them from Australia.
Immigration will make a written request for these costs. You will be
liable to pay the Australian Government the difference between the actual costs
and any amount you have paid towards the obligatory travel costs. The maximum
amount payable is AUD10 000.
This obligation starts on the day on which the person you have sponsored
becomes an unlawful non-citizen.
This obligation ends five years after the person you sponsored leaves Australia, but you are liable only for these
costs while they are in Australia.
The types of actions that could be taken varies depending on whether the
sponsor is a standard business sponsor or a party to a labour agreement.
If you have sponsored someone under a labour agreement, Immigration
could suspend or terminate it in accordance with the clauses of the particular
labour agreement.
Nevett
Ford Lawyers is a general practice law firm practising in the areas of
migration, commercial, family, litigation & property law. The migration team comprises six dedicated
immigration lawyers who are all registered migration agents.
Please
contact us if you have any questions.
