457 SPONSORS: PAY
YOUR OWN WAY
Significant reforms to the subclass 457 visa were
made on 1 July 2013. These included changes to sponsor obligations relating to
ensuring the primary sponsored person works in the nominated occupation, not
recovering, costs, and providing training.
The following information will address some common
questions that have been raised by employers about the obligation not to
recover, transfer or take actions that would result in another person paying
certain costs.
What changes have been made to this obligation?
Previously, sponsors were obligated not to recover
certain costs from a primary sponsored person or their family. Since 1 July
2013, in addition to the existing requirement not to recover certain costs,
sponsors cannot transfer or take any action that would result in another person
paying those costs.
Specifically, sponsors must not pass on the
following costs:
- sponsorship and nomination charges
- migration agent/ lawyers costs associated with the lodgement of
sponsorship and nomination applications
- administrative costs and any sundry costs an employer incurs when
they conduct recruitment exercises.
Sponsors fail this obligation if they pass or
transfer these costs to others and the department may take actions such as
barring or cancelling the sponsor from using the program, issuing an
infringement notice, inviting the sponsor to enter into an enforceable
undertaking or applying to a court for a civil penalty order.
FREQUENTLY ASKED QUESTIONS (FAQs)
I was an approved
sponsor before 1 July 2013, and the overseas worker I want to sponsor lodged
their application before 1 July 2013. Would I breach the new requirements of
this obligation if the worker paid any of the costs listed above upfront?
Before 1 July 2013 sponsors were obliged not to
recover (or seek to recover) the costs described above.
The strengthened obligation will not be applied
retrospectively. In other words, if you did not recover (or seek to recover)
costs before 1 July 2013, you will have met your obligation not to recover
costs. From 1 July 2013, you were also required not to transfer or take any
action that would result in another person paying the costs described above.
Any action or payments by a visa holder of these
costs post 1 July 2013 would be a failure by the sponsor to meet this
obligation.
Aren’t nominations
related to the visa applicant, and therefore shouldn’t they be able to pay for
the costs associated with the nomination?
Applications for nomination and sponsorship are
made by prospective or approved sponsors and cannot be made by the visa holder.
These costs are inherently a cost of being or becoming an approved sponsor and
must be borne by the sponsor. If a visa holder pays for sponsorship or
nomination costs on behalf of the sponsor (after 1 July 2013), this is a
failure of this obligation.
What constitutes
recruitment costs that must not be recovered, transferred or charged to
sponsored persons?
Recruitment costs include costs paid in connection
with finding and attracting an employee—what these costs include will depend on
the specific circumstances of an individual case.
The costs associated with the visa application
(including migration agent / lawyer fees associated with lodging the visa
application) are usually paid for by the visa applicant, however, in some
circumstances these costs may be considered to be recruitment costs. For
example, if a sponsor agreed to pay the visa application charge (and associated
migration agent fees) in order to attract a prospective 457 employee, these
costs would be considered recruitment costs.
Please contact Ryan Curtis-Griffiths, Director,
Nevett Ford Lawyers Melbourne by email: rcurtisgriffiths@nevettford.com.au
or by telephone: +61 3 9614 7111 if you require any advice or assistance.
