Navigating Visa Sponsorship Obligations: How compliant is your organisation?

If your organisation is an approved Business Sponsor you have sponsorship obligations that you are required to comply with.

The enactment of the Employer Compliance Bill  has intensified the scrutiny and consequences of non-compliance of employer-sponsored visa programs by the Australian Border Force (ABF).

Organisations sponsoring overseas workers in Australia need to be vigilant in adhering to the evolving immigration regulations, as breaches of sponsorship obligations can lead to serious consequences.

The Role of Auditing and Compliance Services

Auditing and compliance services play a crucial role in helping companies comply with their sponsorship obligations, while maintaining legal and ethical standards in their immigration practices. These services involve a comprehensive review of a company’s immigration policies and practices to ensure they align with the current migration regulations.

A comprehensive immigration audit and ongoing compliance assessments are important for the following reasons:

Risk Mitigation: Auditing identifies potential compliance gaps, reducing the risk of regulatory breaches. This ensures you can address issues proactively, preventing costly penalties and legal complications.

Compliance: Adherence to immigration laws and regulations is essential. Auditing ensures that a company’s immigration practices align with current laws, reducing the likelihood of investigation and actions by the Department of Home Affairs.

Reputation Protection: Compliance demonstrates a commitment to ethical business practices, safeguarding a company’s reputation and brand image.

Business Sponsorship Obligations

In an effort to prevent the exploitation of international workers in Australia and to ensure that the visa program is appropriately being used to address skill shortages, businesses are obligated to do the following:

• Notify the Department when certain events occur such as changes to your business, directors, legal name, trading name, business structure, address etc;
• Notify the Department if a sponsored visa holder ceases work, does not commence work or has a change in duties;
• Notify the Department if the business becomes insolvent, is bankrupt, goes into receivership, liquidation or administration or ceases to exist as a legal entity;
• Cooperate with the Department for audits on compliance;
• Ensure the terms and conditions of their sponsored workers are fair and no less favourable to what would be provided to an Australian employee;
• Keep and maintain records of employment for all 457/482 sponsored visa holders;
• Ensure that the sponsored 457/482 visa holders are not performing any duties outside of the occupation they were nominated in;
• Do not seek to recover, or recover costs associated with the sponsorship of the 457/482 visa holder;
• Do not engage in discriminatory recruitment practices;
• Provide records and information to the Department if requested;
• Pay travel costs for all sponsored workers and their dependants to depart Australia if required; and
• Pay costs associated with the locating and removal of an unlawful non-citizen (former sponsored worker).

Common examples of breaches relating to employers’ sponsorship obligations are:

Underpayment of Wages: Employers sponsoring foreign workers must pay them according to Australian labour standards. Breaches occur when companies pay sponsored workers less than their Australian counterparts, violating fair work regulations.

Unlawful Deductions: Deducting excessive fees from a sponsored employee’s salary, such as visa processing costs, is a breach of obligations.

Providing False Information: Intentionally or unintentionally submitting fraudulent or misleading information in visa applications or employer nomination documents, which can lead to serious consequences.

Key Takeaways

Given the recent rise of Australian Border Force’s investigations and increase of Notices of Intention to Take Action (NOITTA) observed in the last few months, it is imperative that sponsors strengthen their auditing and compliance practices to avoid breaches of their sponsorship obligations.

The strengthening of the Employer Compliance Bill has made the consequences of non-compliance a criminal offence for employers and third-party providers who misuse visa programs to exploit temporary migrant workers.

By proactively addressing compliance issues, organisations can protect their reputation, maintain legal integrity, and ensure the successful employment of sponsored workers in Australia.

Further assistance & advice

Please don’t hesitate to reach out to our team should you require assistance in navigating these complexities and implementing efficient auditing and compliance practices.