Sponsorship Obligations Overview
This article examines sponsorship obligations that specifically arise under the Temporary Skill Shortage (TSS) (subclass 482) visa for standard business sponsors (Employers).
All standard business sponsors who utilise the subclass 482 visas provisions are required to satisfy certain obligations imposed under the Migration Act 1958.
The 482 sponsorship obligations are directed at achieving an acceptable degree of similarity between the working conditions of Australian citizens and permanent residents and skilled (482) overseas workers.
The working conditions of sponsored 482 visa holders must be no less favourable than the conditions afforded to Australian citizens or permanent residents working in similar circumstances.
The employment of skilled overseas workers should not be detrimental to the employment and training opportunities available to Australian workers who are seeking employment in the type of position a business sponsor wishes to fill by means of a 482 sponsorship. This balancing of employer obligations to on-shore workers and 482 sponsored workers, may be changed by means of a workplace agreement to which the sponsor is a party.
Sponsoring employers should also ensure they provide to 482 employees work conditions that comply with the minimum National Employment Standards prescribed under the Fair Work Act 2009.
Summary of 482 Standard Business Sponsorship Obligations
The Migration Act 1958 and the Migration Regulations 1994 contain provisions relating to 482 sponsorship obligations and the powers of the Department to ensure all sponsors satisfy their obligations. These obligations are summarised below.
482 Sponsorship Obligation Monitoring
Business sponsorships are monitored by the Department of Home Affairs. A breach of 482 sponsorship obligations may result in the imposition of various sanctions, including civil penalty proceedings. The Department has monitoring obligations for subclass 482 visas, and it endeavours to monitor every standard business sponsorship approved.
Monitoring usually involves:
- writing to sponsors to request information in accordance with the obligation to provide records and information;
- conducting site visits and interviews with high-risk sponsors;
- information sharing between Commonwealth, state and territory government agencies, including the Fair Work Ombudsman, the Department of Employment and the Australian Taxation Office; and
- making decisions in appropriate cases on the imposition of sanctions on approved sponsors and the cancellation of subclass 482 visas.
With the introduction of the Migration Legislation Amendment (Worker Protection) Act 2008 the Department of Immigration’s capacity to determine whether a 482 sponsorship obligation is being, or has been, complied with, has been significantly enhanced. Authorised inspectors are able to enter premises, including work sites, where they have “reasonable cause” to believe there is information, documents or any other thing relevant to monitoring 482 sponsorship obligation compliance.
Once they have entered a premises, inspectors have the power to:
- inspect any work, material, machinery, appliance, article or facility;
- interview any person;
- require a person who has custody of, or access to, a relevant document to produce the document or thing to the inspector within a specified period;
- require a person to tell the inspector who has custody of a document or thing; and
- to require a person, by written notice, to produce a document or thing to the inspector at a specified place within a specified period (of not less than 7 days);
- The inspector has the power to take possession of, retain, copy or take extracts of a document or thing for the purpose of exercising their power as an inspector.
Regulation 2.78 of the Migration Regulations, requires sponsors to co-operate with inspectors when the inspector is exercising their powers of inspection. Failure to comply with a request by an inspector to produce a document or thing is punishable by imprisonment for 6 months
A person is not excused from giving information or producing a document or thing on the ground that doing so would tend to incriminate them or expose them to a penalty.
In the case of an individual, evidence produced at the request of an inspector may be inadmissible in criminal proceedings, except in proceedings for an offence relating to false or misleading information or documents under the Criminal Code Act 1995 (section 137.1 or 137.2).
Duration: The obligation to co-operate with the Department of Home Affairs inspectors ends 5 years after ceasing to be a business sponsor.
Duration of 482 sponsorship obligations
482 sponsorship obligations generally commence upon the grant of the sponsored employee’s subclass 482 visa and apply for the duration of the 5 year term of sponsorship, and in some instances, beyond (see obligations listed above for specific commencement and cessation time-frames).
- Most sponsorship obligations cease when:
- the sponsor ceases to be an approved sponsor; or
- any sponsored employee ceases to hold the 482 visa for which they were sponsored.
Where an entity is approved as a 482 business but it is later dissolved, the members of the sponsoring entity may still be subject to sponsorship obligations notwithstanding the fact that the entity ceased to exist. For example, if a partnership or unincorporated association ceases to exist, the individuals who were partners immediately before the cessation must continue to satisfy any applicable 482 sponsorship obligation.