Sponsorship Obligations

/Sponsorship Obligations
Sponsorship Obligations2018-04-24T11:54:47+00:00

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.

Business sponsors must co-operate with “appointed inspectors.” Appointed inspectors include Immigration, Fair Work or Fair Work Building Industry Inspectors, and others persons otherwise appointed under the Migration Act to investigate whether a sponsorship obligation is being, or has been, complied with; or for the purpose of investigating whether a sponsor has committed an offence.

Failure to cooperate with an inspector, may amount to a breach of a sponsor legal obligation. Circumstances in which a sponsor may be taken to have failed to cooperate with an inspector include circumstances where:

  • hindering or obstructing an inspector while the inspector is acting in the course of his or her statutory duty;
  • concealing, or attempting to conceal, from an inspector the location of a person, document or thing;
  • preventing, or attempting to prevent, another person from assisting an inspector;
  • assaulting an inspector or a person assisting an inspector;
  • intimidating or threatening, or attempting to intimidate or threaten an inspector or a person assisting an inspector.

Duration: commences on the day on which the person is approved as a sponsor and ceases 5 years after the 457 sponsorship expires.

482 sponsors must ensure that the terms and conditions of employment provided to a sponsored person are no less favourable than the terms and conditions of employment that the sponsoring employer provides, or would provide, to an Australian citizen or an Australian permanent resident, to perform equivalent work at the same location. Also, the terms and conditions of employment provided to the sponsored employee must match the terms and conditions identified in the relevant nomination application documents approved by the Department of Immigration.

In circumstances in which a sponsoring employer employs an Australian worker in a role equivalent to the role occupied by a sponsored employee, the market salary rate for a person employed in the nominated position should match the terms and conditions of the Australian worker.

Where there is no equivalent Australian worker available, the employer is required to satisfy the Department that the terms and conditions of employment are appropriate for that location and industry and result in earnings above the Temporary Skilled Migration Income Threshold (TSMIT). Evidence that may be advanced to demonstrate that the TSMIT threshold has been satisfied includes:

  • an applicable modern award or enterprise agreement;
  • and enterprise agreement for employees performing equivalent work in similar local workplaces; or
  • relevant remuneration surveys or published earnings data or other information endorsed by industry or union associations.

Duration: This obligation commences on the day the primary sponsored person is granted a Subclass 482 visa, unless he or she already holds a Subclass 482  in which case the obligation commences on the day the nomination for the primary sponsored person is approved.

This obligation ends on the day the primary sponsored person ceases employment with the sponsor OR is granted a further substantive visa that is not a Subclass 482 visa.  If the primary sponsored person is granted another 482  visa in order to continue working for the sponsor, the obligation continues.

This obligation applies to both primary and secondary sponsored persons (e.g. de-facto partners, married couples and dependants included on the primary sponsored persons), where the sponsored person holds a 482  visa or the last visa held was a 482 visa.

Reasonable and necessary travel costs (i.e. costs are for economy class air travel or equivalent) to leave Australia, must be met by the sponsor where a payment request has been made in writing by the Department of Immigration (on behalf of the sponsored persons), or by the primary or secondary sponsored person.

The request to pay travel costs must:

  • specify the person or persons whose travel will be funded by the costs; and
  • specify the country to which the requesting person’s passport will permit travel and, identify the country to which the requesting person wishes to travel. This obligation applies multiple and one only passport holders alike; and
  • the request should be made while the person whose travel is to be funded, holds a Subclass 482 visa.

Duration: Commences on the day on which the primary sponsored person is granted a Subclass 482 visa, or the nomination application is approved if they already hold a 482 visa.

The obligation will cease in circumstances where:

  • the sponsored person obtains another nomination from another approved sponsor; or
  • the day on which the primary sponsored person is granted a further substantive visa other than a 482 visa; and
  • on the first day the primary sponsored person has left Australia and the Subclass 482 visa has ceased to be in effect.

The obligation to pay travel costs is taken to have been discharged upon payment of the cost of travel from the sponsored and secondary sponsored persons (including dependents) usual place of residence within Australia to a place of departure from Australia, and to a country that the person holds a passport to travel to within 30 days of receiving the written request for the payment of travel costs.

This obligation requires that an approved sponsor pay costs incurred by the Commonwealth in relation to either the primary or secondary sponsored persons (includes dependents on that employee’s subclass 457 visa) to locate and remove an unlawful non-citizen from Australia where a 482 visa holder remains in Australia after their visa has expired and in the absence the grant of a further visa.

Costs incurred by the Commonwealth to locate and remove an unlawful non-citizen, are limited to $10,000.00, less any amount already paid under the obligation to pay travel costs to enable sponsored persons to leave Australia.

Costs are deemed to have been incurred from the date the person becomes an unlawful non-citizen and ends on the sponsored employee’s departure from Australia.

Duration: This obligation commences on the day the sponsored employee becomes an unlawful non-citizen and ceases 5 years after the time the sponsored person leaves Australia.

Approved 482 standard business sponsors are required to keep records in a reproducible format, and which are capable of being verified by an independent person to demonstrate compliance with sponsorship obligations.

Relevantly, records may include:

  • records of those tasks performed by the 482 visa holder in relation to the nominated activity or occupation, and where those tasks were performed;
  • money paid to Subclass 482 visa holder or dealt with in any way on their behalf or as directed by the primary sponsored person;
  • a record of the non-monetary benefits provided to the primary sponsored person, including the agreed value and the time at which, or the period over which, those benefits were provided;
  • records of the term and conditions that apply to any equivalent workers in the sponsored persons workplace;
  • a written copy the employment contract;
  • the person’s approval as a standard business sponsor or approval of a variation to the person’s approval as a standard business sponsor; and
  • all records showing that the employer has complied with relating to training requirements specified by the Department of Immigration.

Duration: This obligation commences on the day the employer becomes an approved Subclass 482 business sponsor. The obligation ends 2 years after the first day on which the following events occur concurrently:

  • the employer ceases to be an approved sponsor; and
  • there are no primary or secondary 482 holders.

 

Employers are required to provide records or information where the Immigration Minister requests in writing that information and records be provided in the requested manner and time frame. The request must be made in the prescribed format and specify a compliance date not earlier than 7 days after the date on which the employer is taken to have received the request.

Duration: Commences on the day the employer becomes an approved 482 sponsor and ceases 2 years after the first day on which the employer ceases to be an approved sponsor and, there are no primary or secondary 482 holders.

Sponsors are legally obliged to notify the Department of Immigration of the following events:

  • cessation or expected caseation of 482 visa holders employment;
  • change to the work duties carried out by a primary sponsored person;
  • change to the information relating to training, address and contact details provided to the Department in the employers’ application for approval;
  • change to the information provided to the Department in an employer’s application for a variation of a term of approval in relation to training;
  • the sponsors legal entity ceases to exist;
  • if the employer is a company, the appointment of a new company director;
  • if the employer is a partnership, a new partner joins the partnership;
  • if the employer is an unincorporated association, a new member is appointed to the managing committee of the association;
  • the return travel costs of a primary sponsored person or secondary sponsored person have been paid;
  • the employer becomes insolvent within the meaning of subsections 5(2)and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001;

If the person is a natural person, any of the following:

  • the person enters into a personal insolvency agreement under Part X of the Bankruptcy Act 1966 ;
  • the person enters into a debt agreement under Part IX of the Bankruptcy Act 1966 ;
  • a sequestration order is made against the estate of the person under Part IV of the Bankruptcy Act 1966 ;
  • the person becomes a bankrupt by virtue of the presentation of a debtor’s petition under Part IV of the Bankruptcy Act 1966 ;
  • the person presents 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 the person in accordance with Division 6 of Part IV of the Bankruptcy Act 1966 ;

if the employer is a company:

  • an administrator is appointed, a resolution is made that the company be wound up voluntarily or it becomes insolvency;
  • a court orders that the company be wound up;
  • an official liquidator is appointed, the court has approved a compromise or arrangement proposed by the company;
  • the property of the company becomes subject to a receiver or other control under the Part 5A.1 of the Corporations Act 2001.

Note: This is not an exhaustive list of the types of events requiring notification. The types of event requiring notification may vary depending on the nature / type of the sponsoring entity. For example, other types of sponsoring entities include exchange sponsors, special program sponsors, foreign government agency sponsors, visiting academic sponsors, entertainment sponsors, domestic or religious work sponsors.

Notification to the Department is required to be made within 28 days of the primary person ceasing employment or within 28 days of the occurrence of a relevant event that triggers a reporting obligation.

IMPORTANT: Changes to the business sponsor entity structure could also have significant implications for 482 visa holders, such that the visa holder may be unable to apply for Australian permanent residency under the Employer Nomination Scheme.

Duration: This obligation commences on the day the sponsorship is approved and ends when the sponsorship ceases and the sponsor is no longer sponsoring a visa holder.

482 Standard business sponsors are required to ensure that the primary sponsored person works in the occupation specified in the approved nomination application.  If the employer sponsor wants the primary sponsored person to work in a different occupation from the one originally nominated, the employer must lodge a new nomination application with the Department of Immigration.

Further, a Subclass 482 visa holder is restricted to working as an employee of the approved 482 business sponsor or as an employee of a legal entity associated with the employer sponsor.

In response to concerns that some sponsors are engaging visa holders under arrangements that resemble independent contracting arrangements, employees must now be employed by their sponsor in a direct employer-employee relationship. This restriction prohibits on-hire arrangements that fall outside approved Labour Agreements and it aims to prevent sham contracting arrangements.

Sponsors are required to make and keep a record of all contracts of employment with primary sponsored persons. The contract must be signed by both the sponsor and the primary sponsored person and must include the hours of work, salary, and conditions of employment.

Duration: commences on the day the employer’s nomination application is approved, or if the primary sponsored does not hold a 482 visa, on the day the nomination is approved. This obligation ceases upon whichever is the earliest of the following occurrences:

  • approval of a nomination by an alternative approved 482 business sponsor,
  • or the day on which the employee is granted another further substantive visa (not a Subclass 482 visa), or
  • the first day on which the primary sponsored person has left Australia and the 482 visa has ceased to be in effect.

482 Standard Business Sponsors are required to pay certain costs associated with becoming a sponsor and not to pass these costs, in any form, onto to a sponsored person or their sponsored family members.

Sponsors must not take any action, or seek to take any action, that would result in the transfer to another person of some or all of the costs, or result in another person paying some or all of the costs including migration lawyers/agent costs:

  • associated with the becoming an approved sponsor; or
  • associated with being an approved sponsor; or
  • associated with being a former approved sponsor; or
  • that relate specifically to the recruitment of a non-citizen for the purposes of a nomination

Similarly, the business sponsor must not recover or seek to recover from a sponsored person some or all of the costs detailed above.

Duration: This obligation commences on the day the sponsorship is approved and ceases when the sponsorship ceases and where the sponsor is no longer sponsoring a visa holder.

Training obligations require 482 standard business sponsors to comply with requirements relating to training specified by the Immigration Minister in writing, during all or part of the 12 month period commencing on the day the business is approved as a sponsor; or a period of 12 months commencing on an anniversary of that day, and the sponsor must meet the Department of Immigration benchmarks in relation to its training of Australian employees. This entails either:

  • spending the equivalent of at least 1% of its payroll on training its Australian employees; or
  • contributing the equivalent of at least 2% of its payroll to a relevant industry training fund (or an acceptable equivalent).

Currently, where a sponsor is found not to have met its training obligation, the Department may consider taking action under Regulation 2.91 Application or variation criteria no longer met, as the sponsor no longer meets the training criterion under Regulation 2.59 Criteria for approval as a standard business sponsor. This may result in a sponsor being barred from acting as a sponsor and the cancellation of their approved sponsor status.

Duration: This obligation commences on the day the business is approved as a 482 standard business sponsor.

This obligation ends:

  • 3 years after the business is approved as a 482 sponsor, if the period of approval is less than 6 years; or
  • 6 years after the business is approved as a 482 sponsor, if the period of approval is at least 6 years.

482 standard business sponsors must not engage in or have engaged in, discriminatory recruitment practices during the period of the person’s approval as a sponsor.

Duration: This obligation commences on the day of sponsorship approval and ends when the employer ceases to be an approved business sponsor.

   

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.