VisaEnvoy’s Corporate Migration Compliance services will make sure you meet your obligations as a Business Sponsor towards the Department of Home Affairs:
Sponsorship obligations apply to all sponsors of subclass 457 /482 visa holders. They are in place to ensure that overseas skilled workers are protected from exploitation, and that the subclass 482 and 457 visa programme is being used to meet genuine skills shortages, and not to undercut local labour wages and conditions.
Some obligations apply beyond the term of sponsorship approval.
As a sponsor you must:
- cooperate with inspectors
- ensure equivalent terms and conditions of employment
- keep records
- provide records and information to the Minister
- tell us when certain events occur
- ensure the visa holder participates in the nominated occupation, program or activity
- not recover from, transfer or charge certain costs to another person
- pay travel costs to enable sponsored people to leave Australia
- pay costs to remove unlawful non-citizens
- provide training to Australians and permanent residents
- not engage in discriminatory practices.
Cooperate with inspectors
You must cooperate with inspectors appointed under the Migration Act 1958 (the Act) who are investigating whether:
- a sponsorship obligation is being, or has been, complied with
- you have hired an illegal worker
- there are other circumstances in which we could take administrative action.
This obligation:
- starts on the day the sponsorship is approved or work agreement commences
- ends five years after the day the approved sponsorship ends or work agreement ceases.
Cooperating with inspectors can include (but is not limited to):
- providing access to premises
- producing and providing documents within the requested timeframe
- not preventing or attempting to prevent ,access to a person who has custody of, or access to, a record or documents
- providing officers with access to interview any person on their premises.
Ensure equivalent terms and conditions of employment
If you are a standard business sponsor, the terms and conditions of employment for the person you have sponsored must be no less favourable than those you provide, or would provide to an Australian performing equivalent work in the same location. Further, if you are a standard business sponsor, the terms and conditions of employment for the person you have sponsored must be no less favourable than the terms and conditions you advised you would be providing to the sponsored person at the time of the nomination.
This obligation does not apply to a sponsor if the annual earnings of their sponsored visa holder are equal to, or greater than AUD 250,000.
If you sponsor someone under a work agreement, you must ensure that the people you sponsor are paid the amount specified in the work agreement.
This obligation starts on the day (whichever is the earliest):
- the person you have sponsored is granted a subclass 457 visa
- your nomination is approved (if they already hold a subclass 457 visa when your nomination was approved)
This obligation ends either:
- on the day the sponsored visa holder stops working for you, or
- on the day they are granted a further visa other than another subclass 457 visa, or a bridging visa, a criminal justice visa, or an enforcement visa.
If the sponsored visa holder is granted another subclass 457 visa to continue to work for you, this obligation continues.
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 some 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:
- written requests for payment of outward travel costs for a sponsored visa holder or their family, including when the request was received
- how the outward travel costs were paid for a sponsored visa holder or their family, how much was paid, for whom they were paid, and when they were paid
- notifying us of an event required to be reported to us, including the date and method of notification and where the notification was provided
- tasks performed by the sponsored visa holder in relation to the nominated occupation and where the tasks were performed
- money paid to the sponsored visa holder (unless the sponsored visa holder earns over AUD 250,000)
- money applied or dealt with in any way on behalf of the sponsored visa holder or as the sponsored visa holder directed (unless the sponsored visa holder earns over AUD 250,000)
- non-monetary benefits provided to the sponsored visa holder , including the agreed value and the time at which, or the period over which, those benefits were provided (unless the sponsored visa holder earns over AUD 250,000)
- 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 (unless the sponsored visa holder earns over AUD 250,000)
- the written contract of employment each sponsored visa holder is engaged under
- if you were lawfully operating a business in Australian at the time of your approval as a standard business sponsor or variation of the terms of your approval as a standard business sponsor—how you are complying with the training obligation
- if you are a party to a work agreement, the records required to be kept under the work agreement.
The obligation starts the day the sponsorship is approved or work agreement begins.
This obligation ends two years after both of the following:
- your sponsorship or the work agreement ceases
- you are no longer sponsoring anyone.
Provide records and information to the Minister
You must provide records or information, if they are requested by a departmental officer that goes to determining whether:
- a sponsorship obligation is being or has been complied with, and
- determining whether other circumstances, in which the Minister might take administrative action, exist or have existed,
in the manner and timeframe requested by us.
We might ask you in writing to provide records or information which relate to your sponsorship obligations, and any other matters that relate to your sponsorship of Subclass 457 visa holders. You must provide the records or information requested if it is a record or information that:
- you are required to keep under Commonwealth, state or territory law
- you have an obligation to keep as a sponsor.
This obligation starts to apply on the day the sponsorship is approved or work agreement commences.
This obligation ends two years after:
- your sponsorship or work agreement ceases
- you no longer have a sponsored visa holder.
Tell us when certain events occur
You must tell us in writing when certain events occur. Send the information by registered post or electronic mail to a specified address and within certain timeframes of the event occurring.
Examples of events include (but are not limited to):
- a change to your address or contact details
- the end or expected ending of a primary sponsored visa holder’s employment, program or activity
- a change to the duties carried out by the primary sponsored visa holder.
This obligation starts to apply on the day the standard business sponsorship is approved or the work agreement commences.
This obligation ends two years after:
- your sponsorship or the work agreement ends, and
- you are no longer sponsoring anyone.
Changes or events that all sponsors must notify within 28 calendar days
You must notify us within 28 calendar days if:
- the sponsored visa holder’s employment ends, or is expected to end(the sponsor must tell us if the end date changes)
- there are changes to the work duties carried out by the sponsored visa holder
- 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 work agreement and there is a change to the address and contact details or the training information provided in the work agreement
- 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 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 us of the following changes or events within 28 calendar 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 us of the following changes or events within 28 calendar 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 us of the following changes or events within 28 calendar 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 us within 28 calendar 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.
Ensure that the visa holder participates in the nominated occupation, program or activity
You must ensure that the person you have sponsored participates only in the occupation, program or activity for which you nominated them. If you want to engage a visa holder for a different occupation, program or activity, you must lodge a new nomination application. This obligation starts on the day the person you have sponsored is granted a visa. If they already hold a visa when you nominate them, your obligation starts on the day the nomination is approved.
This obligation ends on the day (whichever is the earliest):
- the sponsored visa holder has a nomination approved for another approved sponsor
- the sponsored visa holder is granted another substantive visa of a different type for which you sponsored them (unless that other visa is a bridging visa, criminal justice visa or enforcement visa
- the sponsored visa holder has left Australia and the relevant visa (and any subsequent bridging visa) is no longer in effect.
If you are a standard business sponsor, you must employ the person you have sponsored under a written contract of employment. They cannot work for another business, and you cannot supply them to another business. If you were lawfully operating a business in Australia at the time you were approved as a standard business sponsor, the person might work for an associated entity.
You cannot engage in activities related to the hiring of the sponsored visa holder to another business unless it is an associated entity and you lawfully operated a business in Australia at the time you were approved as a standard business sponsor (or at the time the terms of your approval were last varied).
The only exception to this rule is if the sponsored visa holder’s occupation is an exempt occupation for the purposes of this obligation.
The obligation ends on the day the sponsored visa holder is granted another substantive visa of a different subclass from the one they last held. The obligation continues if the sponsored visa holder is granted another subclass 457 visa to continue to work for you.
Not recover, transfer or charge certain costs to another person
You must not take any action or seek to take any action that would result in the transfer or charging of costs (including migration agent costs) to another person, such as a sponsored visa holder or their sponsored family members this includes costs that relate to:
- the recruitment of the person you sponsored
- becoming or being a sponsor or former approved sponsor.
This obligation:
- starts on the day the sponsorship is approved or the work agreement commences
- ends on the following two events:
- you cease to be an approved sponsor or party to a work agreement
- you no longer have a sponsored visa holder.
Sponsors are also required to pay certain costs associated with becoming a sponsor and not pass these costs, in any form, onto another person. These include:
- cost of sponsorship and nomination charges
- migration agent costs associated with the lodgement of sponsorship and nomination applications
- administrative costs and any sundry costs an employer incurs when they conduct recruitment exercises, including:
- recruitment agent fees
- migration agent fees
- the cost of job advertising
- screening of candidates, short listing, interviews and reference checks
- salaries of recruitment or human resource staff
- the cost of outsourcing background checks, police checks and psychological testing where they relate to an employer determining an applicant’s suitability for the position
- training of new staff
- responding to queries for prospective candidates, and advising unsuccessful applicants
- travel costs for the sponsor to interview and/or meet the applicant either overseas or in Australia.
Pay travel costs to enable sponsored people to leave Australia
You must pay reasonable and necessary travel costs to enable the sponsored person and their sponsored family members to leave Australia. They must ask you in writing for you to pay the costs. We can also make a written request 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 sponsored visa holder holds a passport) and intends to travel to
- 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.
You will only be required to pay return travel costs once. If a sponsored person returns to Australia (whilst holding the visa for which you sponsored them) after you have paid their return travel costs, you will not be required to pay their return travel costs again.
This obligation starts on the day:
- the visa is granted (if the sponsored person did not already hold a visa when your nomination of them was approved , or
- your nomination is approved (if the person already held a visa in this subclass when your nomination is approved).
This obligation ends on the day (whichever is the earliest):
- another sponsor has their nomination application for the sponsored person approved
- the person you sponsored is granted another visa other than a subclass 457 visa, a bridging visa, a criminal justice visa, or an enforcement visa the person you sponsored has left Australia and the relevant visa (and any subsequent bridging visa) is no longer in effect.
Pay costs to locate and remove an unlawful non-citizen
In the event a primary sponsored person (or any of their sponsored family members) becomes an unlawful non-citizen, you might be required to pay the costs incurred by the Commonwealth in locating and/or removing the primary or secondary sponsored persons from Australia.
You might be liable to pay the Commonwealth the difference between the actual costs incurred by the Commonwealth (up to a maximum of AUD 10,000) less any amount which might have already been paid under the obligation to pay travel costs to enable sponsored persons to leave Australia (see ‘Obligation to pay travel costs’ above).
This obligation starts on the day the person you sponsored becomes an unlawful non-citizen. It ends five years after they leave Australia. This means that we might, up to five years after the person you have sponsored has left Australia, give you a letter requiring payment of the costs that the Commonwealth paid to locate and remove the person you sponsored prior to their departure from Australia.
Provide training to Australians and permanent residents
If you are a standard business sponsor and you lawfully operated a business in Australia at the time you were approved as a standard business sponsor (or at the time you had your terms of approval varied). You must contribute to the training of Australians by either:
- spending an equivalent of at least two per cent of your payroll in payments to an industry training fund that operates in the same or related industry as you
- spending an equivalent to at least one per cent of your payroll in the provision of training to employees of your business who are Australian citizens or Australian permanent residents.
The obligation begins on the day you are approved as a sponsor. You must meet this obligation in each 12 month period within which you employ a sponsored visa holder (including if the sponsored visa holder is not employed by you for the full twelve months). Where your approval as a standard business sponsor is varied, you must meet the training requirement if you employ one or more primary sponsored persons.
The obligation ends either:
- three years after you are approved as a sponsor
- if you are an accredited sponsor, six years after you are approved as a sponsor.
Obligation not to engage in discriminatory recruitment practices
If you are a standard business sponsor who lawfully operates a business in Australia, you must not engage in, or have not engaged in, discriminatory recruitment practices that adversely affect Australian citizens, or any other person, based on their visa or citizenship status.
You should keep documents on hand that demonstrate that the recruitment process in relation to a subclass 457 holder did not discriminate based on citizenship or visa status.
Note: This new obligation was introduced on 19 April 2016. It is not engaged if discrimination in recruitment decisions is evident on other grounds such as sex, gender, race, social group or pregnancy. These issues are outside the remit of us and should be directed to other relevant agencies, such as the Fair Work Ombudsman or the Australian Human Rights Commission.
