What are your key obligations as a 457 sponsor?


Date:2016-08-07
- Biwek Thapa (MARN 0747526)
 
Many Australian businesses get excited about sponsoring an overseas skilled worker on the basis of their myth that just because they have a legitimate and successful business operating in Australia they can sponsor anyone they like without having to meet tough legislative criteria.  In some case, they even think if they write a letter willing to sponsor an overseas skilled worker they can become a sponsor and all they need to show is a business registration certificate.  The worst part is that, many sponsors are not even aware of their obligations for becoming an approved sponsor for 457 visa purpose. 
 
Some of the key obligations of 457 sponsors are as follows.
Throughout the duration of the sponsorship the sponsor must:
 
1. cooperate with inspectors
2. ensure equivalent terms and conditions of employment
3. keep records
4. provide records and information to the Minister
5. advise immigration when certain events occur
6. ensure  the visa holder  participates in the nominated occupation, program or activity
7. not recover from, transfer or charge certain costs to another person 
8. pay travel costs to enable sponsored people to leave Australia
9. pay costs  to remove unlawful non-citizens
10. provide training to Australians and permanent residents
11. not engage in discriminatory recruitment practices
 
Sponsor must notify immigration within 28 calendar days if:
 
o the sponsored visa holder’s employment ends, or is expected to end 
o there are changes to the work duties carried out by the sponsored visa holder 
o 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
o the business ceases to exist as a legal entity
 
Training Obligation:
 
Sponsor must contribute to the training of Australians (not the 457 visa holder) by:
• spending an equivalent of at least two per cent of the payroll in payments to an industry training fund that operates in the same industry; or
• spending an equivalent to at least one per cent of the payroll in the provision of training to employees of the business who are Australian citizens or Australian permanent residents
The sponsor’s obligation starts on the day the sponsorship is approved or work agreement commences and ends five years after the day the approved sponsorship ends or work agreement ceases.
 
Monitoring from Immigration:
 
Immigration monitor the sponsor and the visa holder both while you the sponsorship is valid for up to five years after the business cease being a sponsor. Immigration does this routinely in three main ways:
• writing the sponsor to ask for information in accordance with the obligation to provide records and information
• site visits, usually to the sponsored business premises, with or without notice
• exchanging information with other Commonwealth, state and territory government agencies, including the Fair Work Ombudsman, the Department of Employment and the Australian Taxation Office
 
If sponsors do not meet their obligations, immigration could take one or more of the following actions:
 
Administrative:
• could be barred from sponsoring more people for a specified time
• could be barred from applying for approval to be a sponsor, in relation to this visa or another one
• all existing approvals as a sponsor could be cancelled
 
Enforceable undertaking
 
• could be invited to enter into an enforceable undertaking  
• enforceable undertakings require sponsors to promise, in writing, to undertake to complete certain actions to demonstrate that the failures have been rectified and won’t happen again
 
Civil
• Immigration can issue an infringement notice of up to AUD 10,200 for a body corporate and AUD 2,040 for an individual for each failure.
• Immigration can apply to a court for a civil penalty order of up to AUD 51,000 for a corporation and AUD 10,200 for an individual for each failure.
 
Other reasons for sanctions could be:
 
• for providing false or misleading information to Immigration
• for no longer satisfying the criteria for approval as a sponsor or for variation of a term of that approval
• sponsor been found by a court or competent authority to have contravened a Commonwealth, state or territory law
• the employee (sponsored person) breaks a law relating to the licensing, registration or membership needed to work in the nominated position
 
writer can be contacted at: info@opalconsulting.com.au
Note: This article is written for a general information purpose.  You should see a registered migration agent or a migration lawyer before making any decisions as your case and circumstance could be different.