A Guide to the Subclass 457 Business Sponsorship Obligations
If your business currently makes use of the Subclass 457 Programme, then you should be aware that sponsoring international employees in Australia comes with a range of obligations. These obligations apply to all sponsors of subclass 457 visa holders.
The sponsorship obligations have been implemented to ensure that international skilled workers are not exploited and that the 457 visa programme is used to meet the skill shortages that are faced in various industries across Australia and ensure that the local Australian labour market is also protected.
It is also important to note that once you are approved as a Standard Business Sponsor, some of your obligations continue even after you finish sponsoring an overseas employee.
Overview of the subclass 457 sponsorship obligations
Cooperate with inspectors
As a approved Standard Business Sponsor you must openly cooperate with inspectors that have been appointed under the Migration Act 1958 who are investigating the operations of your business and ensuring you are meeting Australia migration laws. Cooperating with inspectors consists of (but is not limited to) providing access to your business premises, producing documents if requested within an appropriate time frame, not preventing or attempting to prevent access to a person who has custody of, or access to a range of documents, allowing officers to access and interview any person in the business premises.
Ensure equivalent terms and conditions of employment
One of the main criteria of sponsoring an international employee is ensuring that the terms and conditions of employment for the individual you are sponsoring are no less favourable than those that are provided, or would be provided to an Australian citizen or Permanent Resident performing equivalent work in the same location.
The exception to this employer obligation is if the sponsored visa holder is employed with earnings equal to, or in excess of AUD$ 250,000.
Keep appropriate records
As a Standard Business Sponsor you are obliged to keep records that display your compliance with your sponsorship obligations. All records must be kept in reproducible format and some records must be able to be independently verified if required.
As a general rule of thumb, Ethos Migration recommends that all documentation you send or receive that is associated with your sponsored employees is kept on record and is safe from data loss.
Provide records and information to the Minister of Immigration and Border Protection
In some cases, an officer of the Department may request information if they wish to investigate whether or not sponsorship obligations are being met, or to determine other circumstances in which further administrative action may be required.
Notify the Department when certain events occur
When certain events occur, it is the sponsors responsibility to notify the Department of these events as per your obligations.
Examples of events include but are not limited to:
- The end or expected end of a subclass 457 visa holders activity, program or employment
- A change to the sponsors address or contact details
- A change to the tasks and duties that are carried our by the subclass 457 visa holder
Certain events also require notification to the Department of Immigration and Border Protection within 28 calendar days.
Examples of the events that require notification within 28 days are:
- If the sponsored visa holders employment ends, or is expected to end
- If there are changes to the work duties performed by the visa holder
- If information provided in your original application for sponsorship has changed such as change of ownership, directorship or business structure
- If you are party to a work agreement and a change to the address or contact details, or training information provided to the work agreement
- If you have paid for the return travel costs for a sponsored visa holder or any of their family members
- If the business has become insolvent
- If the business ceases to exist as a legal entity
- If a court has ordered that the company be wound up in insolvency
- If a court has appointed a liquidator
- If a court has approved a compromise or arrangement proposed by the company under the Corporations Act 2001
- If any of the businesses property becomes subject to a receiver or other controller as per the Corporations Act 2001
- If any procedures are initiated to deregister the company
- If a new partner joints a partnership
- If a new member is appointed to the managing committee of the association (for unincorporated associations)
This obligation does not end until two years after your sponsorship or agreement ends and you are no longer a sponsor.
Ensure that the visa holder participates in the nominated occupation, program or activity
As a business sponsor you must ensure that subclass 457 visa holders you have sponsored are only working in the occupation of that in which they were originally nominated for. If the visa holder is required to undertake a different occupation, the business sponsor must lodge a new nomination for the visa holder and not commence the new occupation until the new nomination is approved.
Not recover, transfer or charge certain costs to another person
A business sponsor must not take any action, or attempt to take any action that results in the transfer of costs incurred (including migration agent professional fees) to another person. Other people include the visa holder and their family members. These costs include anything that relates to the recruitment of the person being sponsored, becoming a sponsor, or any costs associated with the sponsorship itself.
Pay travel costs to enable sponsored employees to depart Australia
When nominating and sponsoring an overseas worker, the business must pay the reasonable costs associated with the sponsored person and/or their family members to depart Australia. If the sponsored person requests this, they must request this in writing. In some cases, the Department of Immigration & Border Protection can request this on behalf of the visa holders.
When assessing reasonable costs the following are included:
- Travel from the sponsored persons usual place of residence in Australia to their place of departure from Australia
- Travel costs from Australia to the country the sponsored person intends to travel to
- Economy class airfares or, if that is not available, a reasonable equivalent
If a request is received from the Department of the sponsored person, these travel costs must be paid within 30 days of receiving the request.
Pay costs to locate and remove an unlawful non-citizen (UNC)
If the primary sponsored person becomes and unlawful non-citizen in Australia a business sponsor may be required to pay the costs associated with and incurred by the Commonwealth of Australia in locating and/or removing the primary or secondary sponsored persons from Australia.
Provide training to Australians and permanent residents
This sponsorship obligation is the most commonly breached obligation for Standard Business Sponsors. It requires the business sponsor to contribute to the training of Australians by meeting either one of the following training benchmarks in each year the business is an approved sponsor:
- Spending an equivalent of atleast two per cent of the total payroll in payments to an industry training fund that operates in the same industry as the business sponsor
- Spending an equivalent to at least one per cent of the total payroll in the provision of training to employees of the sponsoring business who are Australian citizens or Australian Permanent Residents.
Not to engage in discriminatory recruitment practices
A business sponsor must not have engaged in, or engage in discriminatory recruitment practices that adversely affect Australian citizens or any other person in Australia based on their visa or citizenship status.
It is important that documents are kept on file that provides evidence of the recruitment practices to satisfy the Department that the sponsoring business did not recruit any subclass 457 visa holders based on their citizenship or visa status.
Questions, queries or clarification?
If you have any questions, queries or require any clarification on any aspects of the above business sponsorship obligations please contact your Registered Migration Agent directly or Ethos Migration on 1300 083 843 or via [email protected]