All employers who sponsor overseas workers under the Subclass 482 Skill Shortage (TSS) visa program must comply with a number of 482 sponsorship obligations. Some of these obligations extend beyond the term of the sponsorship approval (the standard term of which is 5 years). In addition, employers must continue to meet their sponsor obligations in order to retain or renew their Standard Business Sponsorship (SBS).
Employer sponsors must comply with all Australian migration and workplace laws. The 482 visa employer obligations are designed to ensure that:
- the working conditions of sponsored persons meet Australian workplace standards;
- sponsored persons are not exploited by their sponsors; and
- visa programs are used for their intended purpose.
Therefore the sponsorship compliance framework seeks to ensure that overseas skilled workers are protected from exploitation. In addition, the rules are there to make sure that the visa program is being used to meet genuine skills shortages, and not to undermine the wages and conditions of local employees.
If any of these obligations are not met, the Department of Home Affairs (the Department) can issue penalties. These penalties may include administrative sanctions (barring or removing the sponsor from participating in the program), infringement notices, sponsors entering into an enforceable undertaking and civil penalties.
Note also that the Department must publish details of any approved sponsor or former approved sponsor that fails to satisfy a sponsorship obligation, and has had sanction action imposed. Information identifying sponsors who have not complied with their sponsorship obligations and any action taken against them is published on the Australian Border Force (ABF) website. Sponsors that have been counselled (via a Reminder to Comply with Obligations letter), or issued with a formal warning, will not be subject to publication.
It is therefore critical before you embark on the process of applying to sponsor workers in your business, that you have a full understanding of what obligations you will be subject to as an employer sponsor under the program.
Please be aware that the sponsorship obligations discussed in this article also apply to employer sponsors under the Subclass 457 Temporary Work (Skilled) visa program, which was replaced by the the Subclass 482 visa as of the 18th March 2018. You can read more about this in our article on the abolishment and replacement of the Subclass 457 visa.
Also note that the sponsorship obligations discussed below also apply to employer sponsors under the Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa program.
What Are An Employer’s Sponsorship Obligations?
There are a number of sponsorship obligations 482 which apply. Let us now take a look at the main obligations below.
A sponsoring employer must:
- ensure the 482 holder receives the equivalent terms and conditions of employment;
- keep records of the tasks performed and the location;
- keep records of the amounts paid to the worker;
- keep records of the terms and conditions of the employment;
- keep records of records showing that the sponsor has complied with training requirements (applies to standard business sponsors who were lawfully operating a business in Australia and approved as a standard business sponsor before 12 August 2018);
- keep the employment contract;
- provide records and information to the Minister upon request;
- ensure the worker works in the nominated occupation (not something different);
- not recover costs that are not authorised under the regulations (a sponsor cannot request visa holders to pay costs associated with gaining a sponsorship or nomination, including the associated migration agent costs, or the Skilling Australians Fund (SAF) levy);
- pay costs to the Commonwealth to locate and remove any unlawful worker;
- provide information to Immigration when certain events occur;
- pay travel costs to enable sponsored workers to leave Australia;
- cooperate with inspectors;
- not engage in discriminatory recruitment practices.
These obligations are spelled out under Division 2.19 of the Migration Regulations. The regulations specify the relevant period for when each obligation applies. There are other obligations that fall within other areas of the law. A failure to satisfy an obligation can result in cancellation and/or barring of a sponsor from sponsoring other foreign workers. There can also be significant fines imposed.
If you are unsure whether you have been meeting your obligations as a sponsoring employer, contact us and we can work through your options to ensure you do not fall foul of the law. Our knowledge of business process as well as Immigration law allows us to help businesses get back on track for the lowest cost.
Let us now take a closer look at some of the sponsorship obligations of sponsoring employers.
Ensure Employee Only Works In The Nominated Occupation
The sponsored employee’s current duties must clearly correlate with the duties listed under the relevant occupation code for the nominated occupation under the Australian and New Zealand Standard Classification of Occupations (ANZSCO).
To work in a different occupation from the occupation that was specified in the approved nomination, a new nomination must be approved.
Some work undertaken outside of the nominated occupation may be considered acceptable if the duties are closely related to those of the nominated occupation. However, the significant majority of work must be in the nominated occupation to meet this requirement.
If the sponsored worker is promoted or changes roles and the new position, tasks or skill level are still captured by the approved occupation’s ANZSCO code, then a new nomination is not required. In this case, the sponsor must inform the Department of the change in duties to satisfy the obligation regarding notifying the Department if certain events occur.
Ensure Equivalent Terms And Conditions Of Employment
A standard business sponsor must ensure:
- the annual earnings of the employee are at least the same as those stated in the approved nomination application;
- the employment conditions of the sponsored employee must be no less favourable than those of an equivalent Australian worker.
This obligation only applies if the annual earnings of the sponsored employee are below $250,000.
The sponsored employee must receive employment conditions (excluding earnings) that are no less favourable than those that apply, or would apply, to an equivalent Australian worker performing equivalent work at the same location. Such employment conditions would include:
- access to annual leave;
- access to sick/personal/maternity leave;
- access to join a union or professional body.
Not Engage In Discriminatory Recruitment Practices
A standard business sponsor who lawfully operates a business in Australia must not engage in discriminatory recruitment practices that adversely affect Australian citizens, or any other person, based on their visa or citizenship status.
The sponsor must also keep records to show that in recruiting the employee, they did not discriminate on the basis of citizenship or visa status.
This obligation is designed to ensure that sponsors:
- are committed to employing local labour and will not engage in discriminatory recruitment practices that adversely affect Australian citizens or any other person based on visa or citizenship status; and
- are in compliance with their declaration that they have a strong record of, or a demonstrated commitment to, employing local labour; and have declared, in writing, that the applicant will not engage in discriminatory recruitment practices, as part of the sponsorship application process.
This obligation is not designed to prevent sponsors from choosing highly qualified overseas applicants and it is acknowledged that there may be legitimate reasons why a sponsor may choose to employ an overseas applicant over an Australian applicant.
The employer sponsored visa programs are designed to be used to fill skill shortages only in circumstances where an appropriate equivalent Australian worker cannot be found. This obligation may be used to address situations where employers are relying on these visa programs to employ foreign workers without having regard to the availability of Australian workers.
Where discrimination occurs in recruitment decisions on other grounds such as sex, gender, race, social group or pregnancy, this would be a matter outside the scope of the Department and should be addressed by the relevant agency (e.g. Fair Work Ombudsman or the Australian Human Rights Commission).
The employer sponsor must keep records to demonstrate compliance with their sponsorship obligations. These records must be kept in a reproducible format and where applicable, be able to be verified by an independent person. Records must be kept for 5 years.
Apart from keeping records under other Australian government, and state or territory laws, the employer must also keep records of:
- written requests for payment of travel costs for the employee or their family, including when the request was received;
- how and when the employer paid the travel costs, how much was paid, and who it was paid to;
- any event that must be notified to the Department, including the date and method of notification, and where the notification was provided;
- tasks performed by the employee in relation to the nominated occupation and where the tasks were performed
- earnings paid to the sponsored worker (unless they earn $250,000 or more);
- money applied or dealt with in any way on behalf of, or as directed by, the sponsored employee (unless they earn $250,000 or more);
- non-monetary benefits provided to the sponsored employee (records must be kept of the agreed value and the time at which, or the period over which, these benefits were provided – except where the visa holder earns $250,000 or more);
- if there is an equivalent worker in the sponsoring employer’s workplace, the terms and conditions of the equivalent worker, including the period over which the terms and conditions apply (this does not apply if the sponsored employee earns $250,000 or more);
- the written contract of employment for the sponsored worker;
- compliance with training obligations if the sponsor was lawfully operating a business in Australia when the standard business sponsorship was approved before 12 August 2018.
Provide Records And Information
An employer sponsor must provide records or information if requested by the Department. Records and information that must be provided are those that the sponsor must keep under Commonwealth, state or territory law, and those that relate to their obligations as a sponsor.
Relevant records or information must be provided in the manner and timeframe, as requested.
Pay All Relevant Costs
The sponsor must not recover, transfer or take actions that would result in another person paying for certain costs.
They must pay and assume all of the following costs:
- cost of becoming a sponsor;
- nomination charges;
- migration agent costs associated with sponsorship and nomination applications;
- migration agent fees or legal fees associated with sponsorship monitoring;
- administrative costs and any sundry costs incurred in conducting recruitment;
- training new staff;
- pre-agreed costs that are related to attracting a potential sponsored person (eg. paying for airfares to Australia, visa application costs and relocation costs);
- responding to queries for prospective candidates and advising unsuccessful applicants;
- travel costs for the sponsor to interview and/or meet the applicant either offshore or in Australia.
The sponsoring employer must also pay and assume all costs associated with the recruitment process, including:
- recruitment agent fees;
- migration agent fees;
- screening, short listing, interviewing and conducting reference checks of candidates;
- salaries of recruitment or human resource staff;
- outsourcing background checks, police checks and psychological testing;
- responding to queries from potential candidates and advising unsuccessful applicants;
- travelling nationally or internationally to interview and/or meet applicants;
The employer must not (or attempt to) transfer or charge these costs to another person (including to the sponsored visa holder or their sponsored family members).
Pay Travel Costs
A sponsoring employer must pay reasonable and necessary travel costs to enable the sponsored worker and their sponsored family members to depart Australia.
The following costs are deemed to be reasonable and necessary:
- travel from the employee’s usual place of residence in Australia to their departure point from Australia;
- travel from Australia to the country for which the employee holds a passport and intends to travel to;
- economy class air travel (or equivalent).
To pay travel costs, a written request for payment must be made by:
- the sponsored employee; or
- The Department, on behalf of the sponsored employee.
Travel costs must be paid within 30 days of receiving the request.
The employer has an obligation to pay travel costs only once. If, following payment of travel costs, the employee returns to Australia holding the relevant sponsored visa, the sponsor is not required to pay these travel costs again.
Pay Costs To Locate And Remove An Unlawful Non-Citizen
If the sponsored employee or any of their sponsored family members becomes an unlawful non-citizen, the employer may be required to repay the costs incurred by the Government to relocate and/or removing them from Australia, if requested by the Department.
Where required, the sponsor must pay the difference between the actual costs incurred by the Commonwealth (up to a maximum of $10,000) less any costs that the employer has already paid in accordance with the obligation to pay travel costs to enable the sponsored worker to depart Australia.
Cooperate With Inspectors
Inspectors are appointed to investigate whether:
- sponsorship obligations are being, or have been, complied with; or
- the sponsor has employed an illegal worker.
The sponsor must cooperate with inspectors by:
- providing access to their premises, and/or any person on those premises;
- producing and providing documents within a requested timeframe;
- complying with any other request made by an inspector.
Notify The Department When Certain Events Occur
The employer sponsor must notify the Department, in writing, if certain changes occur to the employer or their sponsored employee’s circumstances.
Failing to notify the Department, as required, may result in various types of sanction action. This can include the cancellation of sponsorship approval, or barring the employer from sponsoring more overseas workers over a specified period.
What Changes Must Be Notified?
Circumstances in which changes must be notified to the Department include the following:
If you stop employing or sponsoring an employee or they resign
You must notify the Department of this change in circumstances within 10 days.
You must continue to meet your sponsorship obligations to the employee and their dependents until they:
- find another approved sponsor to nominate them;
- are granted a different visa; or
- depart Australia.
The employee must do one of the above within 60 days from the date they finish working for you.
Please also be aware that you are responsible for meeting any reasonable and necessary travel costs for the visa holder and their dependents to leave Australia.
If the visa holder or any of their dependents becomes unlawful, you may be required to meet the cost of locating them and removing them from Australia.
If your employee breaches their visa condition/s
Any such breaches must be reported to the Department.
What Other Circumstances Require The Department To Be Notified?
As a sponsoring employer, you must notify the Department when certain events occur.
These circumstances include changes to your:
- legal name;
- trading name;
- registration details;
- business structure;
- ongoing communication contact;
- owners, directors, principals or partners;
- business address.
If your business:
- becomes insolvent or is bankrupt;
- goes into receivership, liquidation or administration;
- ceases to exist as a legal entity.
if the person you sponsor:
- ceases employment with you;
- has a change in duties;
- did not commence working with you.
You must also notify the Department in writing if there are any changes to how you meet your training obligations.
Your obligation to notify the Department when certain events occur commences on the date of your sponsorship being approved. Your obligations ends two years after:
- your sponsorship ends; and
- you no longer employ a sponsored visa holder.
Notification Obligations For All Businesses
All sponsoring businesses must notify the Department of the following events within 28 calendar days:
- the visa holder’s employment ends or is expected to end (you must advise if the end date changes);
- there are changes to the work duties carried out by the sponsored visa holder;
- you have paid the return travel costs of a sponsored visa holder or any of their family members in accordance with the obligation to pay return travel costs;
- you have become insolvent (under the relevant provisions of the Bankruptcy Act 1966 and the Corporations Act 2001);
- your business ceases to exist as a legal entity.
Notification Obligations For Sponsoring Companies
All sponsoring businesses must notify the Department within 28 calendar days if an administrator is appointed for the company under the relevant legislative provisions of the Corporations Act 2001:
- the company resolves by special resolution to be wound up voluntarily;
- a court has ordered that the company be wound up in insolvency;
- a court has appointed an official liquidator to be the provisional liquidator of the company;
- a court has approved a compromise or arrangement proposed by the company;
- the property of the company becomes subject to a receiver or other controller;
- procedures are initiated for the deregistration of the company.
Where a sponsoring business appoints a new director, this must also be notified to the Department within 28 calendar days.
Notification Obligations For Sponsoring Businesses Operating As Individuals
For sponsors who operate their business as an individual, the following events under the relevant legislative provisions of the Bankruptcy Act 1966 must be notified to the Department within 28 days:
- you enter into a personal insolvency agreement;
- you enter into a debt agreement;
- a sequestration order is made against your estate;
- you become a bankrupt as a result of the presentation of a debtor’s petition;
- you present a declaration of intention to present a debtor’s petition;
- a composition or scheme of arrangement is presented in relation to you.
Notification Obligations For Sponsoring Partnerships
The following events must be notified to the Department within 28 calendar days:
- a new partner joins the partnership;
- any of the events listed for an individual or a company occurs.
Notification Obligations For Unincorporated Associations
The following events must be notified to the Department within 28 calendar days:
- a new member is appointed to the managing committee of the association;
- any of the events listed for an individual or a company occurs.
Monitoring Of Sponsors And Visa Holders
As noted above in our discussion, it is critical that you comply with your sponsorship obligations as an employer sponsor.
The Department monitors compliance with sponsor obligations during the period of the sponsorship, and for up to five years after the sponsorship ends. It also conducts monitoring activities in relation to sponsored employees to ensure that they comply with their visa conditions.
Compliance with sponsorship obligations may also be monitored by Immigration inspectors, Fair Work Inspectors or Fair Work Building Industry Inspectors. Failure to cooperate with inspectors is a breach of the sponsorship obligations.
Sanctions For Non-Compliance With Sponsor Obligations
The Department can impose a number of sanctions if an employer sponsor is found to be in beach of their sponsorship obligations. Sanction/s imposed will depend on the type of contravention or offence that has occurred.
Possible sanctions may include the following (more than one sanction can be imposed).
An employer sponsor in breach of their sponsorship obligations may:
- be barred from sponsoring additional visa holders for a specified period;
- have their sponsorship application refused for the relevant visa or any other visa;
- have all all of their existing sponsorship approvals cancelled.
The employer may be asked to enter into an enforceable undertaking with the Department of the ABF. Enforceable undertakings require the employer to promise, in writing, to undertake to complete certain actions to show that the failures have been rectified and will not be repeated.
The Department can issue an infringement notice of up to:
- $1,332 for individuals and $6,660 for bodies corporate for each obligation breach for a first notice;
- $2,664 for individuals and $13,320 for bodies corporate for each obligation breach for subsequent notices.
It can also apply to a court for a civil penalty order of up to $66,000 for a corporation and $13,320 for an individual for each failure.
When Else Can Administrative Action Be Taken?
Sanctions can also be imposed in the following circumstances:
- if the employer sponsor provides false or misleading information to the Department or the Administrative Appeals Tribunal (AAT);
- if the employer sponsor no longer meets the requirements for approval as a sponsor (or for variation of a term of that approval);
- if the employer sponsor has been found by a court or competent authority to have contravened a Commonwealth, state or territory law;
- the sponsored employee breaks a law relating to the licensing, registration or membership needed to work in the nominated position.
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In conclusion, we note that the above discussion provides an overview of some of the 482 visa employer obligations. Australia’s migration laws are complex, and each case is different. We recommend that you seek professional advice before you proceed with applying for an employer sponsorship, as being fully informed about the process and requirements that apply will give you the best chance of achieving a successful outcome on your application, and thus lessen the chance that it will be refused. It is also vital that you have a good understanding of your 482 sponsorship obligations to ensure that you abide by all relevant requirements and thus avoid the prospect of sanctions being imposed. A migration professional can help you to do this. Start off on the right foot by contacting PAX Migration Australia today.
For up-to-date advice on the 482 visa employer obligations, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.
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Australian Government – Department of Home Affairs – Immigration and citizenship – Visas – Employing or sponsoring workers – Existing sponsors – Sponsorship obligations for Standard business
Australian Government – Department of Home Affairs – Immigration and citizenship – Visas – Employing or sponsoring workers – Existing sponsors – Sponsorship obligations
Australian Border Force – Sanctions imposed on sponsors of skilled foreign workers – Visas and sponsorship
Australian Border Force – Sanctions imposed on sponsors of skilled foreign workers – Register of sanctioned sponsors
Australia Bureau of Statistics – 1220.0 – ANZSCO – Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.3