Obligations as a Standard Business Sponsor

Your Obligations

What you must do

You have obligations as a sponsor. Some of your obligations apply beyond the term of sponsorship approval.

To retain or renew your standard business sponsorship, you must continue to meet your sponsor obligations.

Tell the Department or Ethos Migration Lawyers when certain events occur

You must tell us, in writing, when certain events occur.u

Examples of things you must let the Department know about in writing include changes to your:

  • legal name
  • trading name
  • registration details
  • business structure
  • ongoing communication contact
  • owners, directors, principals or partners
  • business address

You must let the Department know in writing if your business:

  • becomes insolvent or is bankrupt
  • goes into receivership, liquidation or administration
  • ceases to exist as a legal entity

You must let the Department know in writing if the person you sponsor:

  • ceases employment with you
  • has a change in duties
  • did not commence working with you

You must also let the Department know in writing if there are any changes to how you meet your training obligations.

This obligation starts on the day The Department approve your standard business sponsorship or the work agreement commences.

This obligation ends two years after:

  • your sponsorship or the work agreement ends and
  • you no longer employ a sponsored visa holder

All businesses

Let the Department know within 28 calendar days if:

  • the visa holder’s employment ends or is expected to end (the sponsor must tell the Department 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 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

Companies

Let the Department know within 28 calendar days if a new director is appointed.

Also let the Department know within 28 calendar days if 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

Individuals

If you operate your business as an individual, let the Department know within 28 days if:

  • 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

Partnerships

Let the Department know within 28 calendar days if:

  • a new partner joins the partnership
  • any of the events listed for an individual or a company occurs

Unincorporated associations

Let the Department know 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 your employee works only in the nominated occupation

You must ensure that your sponsored employee works only in the occupation you nominated them for.

If you want a visa holder to work in a different occupation, lodge a new nomination.

If you are sponsoring them under the Temporary Skill Shortage visa (subclass 482), the employee will also need to apply for and be granted a new visa.

This obligation starts:

  • on the day the Department grant the nominee a visa or
  • on the day the nomination is approved if the nominee is already working for you

This obligation ends on the day (whichever is the earliest):

  • your employee has a nomination approved for a different approved sponsor
  • the Department grant your employee a visa that is not a TSS, bridging, criminal justice or enforcement visa
  • your employee leaves Australia and their TSS visa (or 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.

Unless the nominated occupation is exempt, you cannot supply or be involved in recruiting or hiring the sponsored employee to another business unless:

  • you were lawfully operating a business in Australia when the Department approved your standard business sponsorship or when the terms of your approval were last varied, and
  • the business is an associated entity

This obligation ends on the day the Department grant your employee a visa that is not a TSS, bridging, criminal justice or enforcement visa.

This obligation continues if the Department grant your employee another TSS visa to continue to work for you.

Ensure equivalent terms and conditions of employment

If you are a standard business sponsor:

  • the annual earnings of the employee must be at least the same as those stated on the nomination application when the Department approved the application
  • the employment conditions of the employee must not be less favourable than those of an equivalent Australian worker

Note, this obligation:

  • applies only if the annual earnings of the employee is less than AUD250,000.
  • also applies to labour agreement sponsors unless otherwise stated in the labour agreement

This obligation starts the day (whichever is the earliest):

  • the Department grant your employee TSS visa or
  • the Department approve your nomination if your employee already holds a TSS or subclass 457 visa

This obligation ends the day:

  • the nominated employee stops working for you or
  • the Department grant your employee a visa that is not a TSS, bridging, criminal justice or enforcement visa

This obligation continues if the Department grant your employee another TSS visa to continue to work for you.

Not 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.

Keep records to show that in recruiting a TSS visa holder, you did not discriminate on citizenship or visa status.

Note: This obligation started 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 the Department and should be directed to other relevant agencies, such as the Fair Work Ombudsman or the Australian Human Rights Commission.

Keep records

You must keep records to show your compliance with your sponsorship obligations. All records must be kept in a reproducible format and some must be capable of verification by an independent person. In addition to records kept under other Australian government, and state or territory laws, 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 you paid the travel costs, how much you paid, and who you paid it to
  • any event you need to report 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 visa holder (unless the sponsored visa holder earns AUD250,000 or more)
  • money applied or dealt with in any way on behalf of, or as directed by, the employee (unless the sponsored visa holder earns AUD250,000 or more)
  • non-monetary benefits provided to the employee. Record the agreed value and the time at which, or the period over which, those benefits were provided (unless the sponsored visa holder earns AUD250,000 or more)
  • if there is an equivalent worker in your workplace, the terms and conditions of the equivalent worker, including the period over which the terms and conditions apply (unless the sponsored visa holder earns AUD250,000 or more)
  • the written contract of employment you engage each employee under
  • how you are complying with the training obligations if you were lawfully operating a business in Australia when the Department approved your standard business sponsorship or the terms of your approval as a standard business sponsor were varied
  • the records you need to keep as party to a work agreement, if applicable

This obligation starts the day the Department approve your sponsorship or the nominee starts work with you.

This obligation ends two years after:

  • your sponsorship or the work agreement ends and
  • you no longer employ a sponsored visa holder

Provide records and information

You must provide records or information if requested by a departmental officer. The records or information will be those that:

  • you are required to keep under Commonwealth, state or territory law
  • you are obliged to keep as a sponsor

The records and information will be used to determine whether:

  • a sponsorship obligation is being or has been complied with, and
  • other circumstances in which the Minister might take administrative action exist or have existed

Provide the records or information in the manner and timeframe requested by the Department.

This obligation starts on the day the Department approve your standard business sponsorship or a work agreement starts.

This obligation ends two years after:

  • your sponsorship or the work agreement ends and
  • you no longer employ a sponsored visa holder

Assume all costs yourself

You must pay and assume all of the following costs yourself:

  • cost of becoming a sponsor
  • nomination charges
  • migration agent costs associated with sponsorship and nomination applications

You must also pay and assume all costs associated with the recruitment process including:

  • recruitment agent fees
  • migration agent fees
  • advertising
  • 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

You must not, or attempt to, transfer or charge these costs to another person such as a sponsored visa holder or their sponsored family members.

This obligation starts on the day the Department approve your standard business sponsorship or the work agreement starts.

This obligation ends two years after:

  • your sponsorship or the work agreement ends and
  • you no longer employ a sponsored visa holder

Pay travel costs

You must pay reasonable and necessary travel costs to let the sponsored employee and their sponsored family members, leave Australia.

The Department consider all of these costs 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 reasonable equivalent

To pay travel costs, a written request for payment must be made by:

  • the sponsored employee or
  • The Department of Home Affairs on behalf of the sponsored employee

Travel costs must be paid within 30 days of receiving the request.

Pay travel costs once only. If, after paying travel costs your employee returns to Australia holding the visa for which you sponsored them, you don’t have to pay their travel costs again.

This obligation starts on the day (whichever is earliest):

  • the Department grant the visa
  • the Department approve your nomination if the nominee held a TSS visa on that day

This obligation ends on the day (whichever is the earliest):

  • your employee has a nomination approved for a different approved sponsor
  • the Department grant your employee a visa that is not a TSS, bridging, criminal justice or enforcement visa
  • your employee leaves Australia and their TSS visa (or any subsequent bridging visa) is no longer in effect

Pay costs to locate and remove an unlawful non-citizen

If your sponsored employee or any of their sponsored family members becomes an unlawful non-citizen, you might have to repay the costs incurred by the Commonwealth in relocating and/or removing them from Australia.

If required, you must pay the difference between the actual costs incurred by the Commonwealth (up to a maximum of AUD10,000) less costs you might have already paid under your obligation to pay travel costs to enable sponsored people to leave Australia.

This obligation starts on the day your sponsored employee or family member becomes an unlawful non-citizen.

The obligation ends five years after they leave Australia. That is, the Department might require payment up to five years after your sponsored employee left Australia.

Cooperate with inspectors

Inspectors are appointed under the Migration Act 1958 (the Act) to investigate whether:

  • your sponsorship obligations are being, or have been, complied with
  • you have hired an illegal worker
  • there are other circumstances in which the Department could take administrative action

You must cooperate with inspectors by:

  • providing access to your premises, any person on your premises
  • producing and providing documents within a requested timeframe
  • complying with any other request made by an inspector

This obligation:

  • starts on the day sponsorship is approved or the visa applicant starts work in the nominated position
  • ends five years after the day the approved sponsorship ends or the applicant stops working for you

Monitoring of sponsors and visa holders

The Department of Home Affairs monitor your compliance with your sponsor obligations when you are a sponsor and up to five years after your sponsorship ends.

The Department also monitor your sponsored employees to ensure they comply with their visa conditions

In response to information provided to the Department, the Department might:

  • write to you to ask for information in accordance with the obligation to provide records and information
  • undertake site visits, usually to the sponsored business premises, with or without notice
  • exchange information with other Commonwealth, state and territory government agencies, including the Fair Work Ombudsman, the Department of Jobs and Small Business, and the Australian Taxation Office

Your compliance with the sponsorship obligations might be monitored by Immigration inspectors, Fair Work Inspectors or Fair Work Building Industry Inspectors who have investigative powers under the Migration Act 1958. Failure to cooperate with inspectors is a breach of your sponsorship obligations.

The Department will publish information identifying sponsors who have not complied with their sponsorship obligations and any action taken against them. See the Sponsor Sanctions information on the Australian Border Force website.

Sanctions

If you do not meet your obligations, the Department could take one or more of the following actions:

Administrative

The Department might:

  • bar you from sponsoring additional visa holders for a specified time
  • not approve your application for sponsorship for this or any other visa
  • cancel all of your existing sponsorship approvals

Enforceable undertaking

We might ask you to enter into an enforceable undertaking. Enforceable undertakings require you to promise, in writing, to undertake to complete certain actions to show that the failures have been rectified and won’t happen again.

Civil

We might:

  • issue an infringement notice of up to AUD12,600 for a body corporate and AUD2520 for an individual for each failure
  • apply to a court for a civil penalty order of up to AUD63,000 for a corporation and AUD12,600 for an individual for each failure

Other circumstances in which administrative action might be taken

In addition, you could also have sanctions imposed if:

  • you provide false or misleading information to the Department or the Administrative Appeals Tribunal
  • you no longer satisfy the criteria for approval as a sponsor or for variation of a term of that approval
  • you have been found by a court or competent authority to have contravened a Commonwealth, state or territory law
  • the person you have sponsored breaks a law relating to the licensing, registration or membership needed to work in the nominated position

The types of actions that could be taken depend on whether you are a standard business sponsor or have a work agreement.

If you have sponsored someone under a work agreement, the Department could suspend or terminate the agreement in accordance with the clauses of the particular work agreement.

Questions?

If you have any questions about the obligations your business has as a Standard Business Sponsor please contact our team of immigration lawyers and registered migration agents on 1300 083 843, via our online contact form, or via email at info@ethosmigration.com.au

How we can help.

Ethos Migration Lawyers can provide your organisation with weekly, monthly, quarterly or ad-hoc reporting and advice on your visa holding population to ensure employees are remaining compliant with their visa conditions and your business is remaining compliant.

Our migration audits allow businesses to engage us to undertake a comprehensive audit of their businesses immigration matters. From there, we can provide specialised recommendations and formulate action plans to address any concerns we may find.

We have provided many HR Manager’s and HR teams alike with consulting services, training HR professional’s in organisations in regard’s to the management of their visa holding population. In many cases, immigration is a foreign function to HR professional’s and we can assist to up skill HR teams to be able to address and manage their teams visa  and sponsorship obligations.

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