Guidance Document

Sponsorship Obligations
for Temporary Skill Shortage (TSS)
Subclass 482 Sponsors

The Obligations

Cooperate with inspectors

You must cooperate with inspectors who are investigating whether:

  1. a sponsorship obligation is being, or has been, complied with
  2. you have hired an illegal worker
  3. there are other circumstances in which the Department could take administrative action.

Cooperating with inspectors can include (but is not limited to):

  1. providing access to premises
  2. producing and providing documents within the requested timeframe
  3. not preventing or attempting to prevent, access to a person who has custody of, or access to, a record or documents
  4. not providing officers with access to interview any person on their premises.

Ensure equivalent terms and conditions of employment

The terms and conditions of employment for the person you have sponsored must be no less favourable than:

  1. those you provide, or would provide to an Australian performing equivalent work in the same location;
  2. 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.

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, include:

  1. written requests for payment of outward travel costs for a sponsored visa holder or their family, including when the request was received
  2. 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
  3. notifying the Department of an event required to be reported (including the date and method of notification and where the notification was provided)
  4. tasks performed by the sponsored visa holder in relation to the nominated occupation and where the tasks were performed
  5. money paid to the sponsored visa holder
  6. money applied or dealt with in any way on behalf of the sponsored visa holder or as the sponsored visa holder directed
  7. 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
  8. 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
  9. the written contract of employment each sponsored visa holder is engaged under
  10. if you were lawfully operating a business in Australia 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

Provide records and information

You must provide records or information, if they are requested by the Department that goes to determining whether:

  1. a sponsorship obligation is being or has been complied with; and
  2. determining whether other circumstances, in which the Minister might take administrative action, exists or have existed.

Notify when certain events occur

You must notify the Department within 28 calendar days if:

  1. the sponsored visa holder’s employment ends, or is expected to end (you must notify if the end date changes)
  2. there are changes to the work duties carried out by the sponsored visa holder
  3. 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
  4. 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
  5. 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
  6. your business ceases to exist as a legal entity

If your business is a company, you must notify the Department within 28 calendar days if:

  1. a new director is appointed
  2. an administrator is appointed for the company under Part 5.3A of the Corporations Act 2001
  3. the company resolves by special resolution to be wound up voluntarily under subsection 491(1) of the Corporations Act 2001
  4. 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
  5. a court has appointed an official liquidator to be the provisional liquidator of the company under Part 5.4B of the Corporations Act 2001
  6. a court has approved a compromise or arrangement proposed by the company under Part 5.1 of the Corporations Act 2001
  7. the property of the company becomes subject to a receiver or other controller under Part 5.2 of the Corporations Act 2001
  8. procedures are initiated for the deregistration of the company under Part 5A.1 of the Corporations Act 2001

Ensure visa holder participates in nominated occupation

You must ensure that the person 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.

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 recruitment or hire 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).

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.

The costs will be considered reasonable and necessary if they include all of the following:

  1. travel from the sponsored person’s usual place of residence in Australia to their place of departure from Australia;
  2. travel from Australia to the country the person holds a passport for and will travel to; and
  3. 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.

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.

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:

  1. the recruitment of the person you sponsored
  2. becoming or being a sponsor or former approved sponsor.

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:

  1. cost of sponsorship and nomination charges;
  2. migration agent costs associated with the lodgement of sponsorship and nomination applications;
  3. administrative costs and any sundry costs an employer incurs when they conduct recruitment exercises, including: (a) recruitment agent fees (b) migration agent fees (c) the cost of job advertising (d) screening of candidates, short listing, interviews and reference checks (e) salaries of recruitment or human resource staff (f) 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 (g) training of new staff responding to queries for prospective candidates, and advising unsuccessful applicants (h) travel costs for the sponsor to interview and/ or meet the applicant either overseas or in Australia.

Not to engage in discriminatory recruitment practices

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.

Disclaimer

The information contained here is offered for informational purposes only and does not constitute legal advice or give rise to an attorney-client relationship between you and our firm. The information: (i) must be regarded as a practical guide for general information and not a process guide for determining the specific immigration requirements of the countries covered, (ii) should not be a substitute for a more indepth analysis of applicable facts and circumstances conducted by competent professionals, and (iii) does not represent an opinion from Hannan Tew or any of its agents with regard to the laws of any of the jurisdictions concerned. The information does not guarantee the outcome or approval of any particular immigration application.

How can we help?

With extensive experience representing the world’s largest corporations, SMEs, and start ups, our staff are well placed to assist with all issues in relation to the employer sponsored visa process, including: business sponsorship applications, nomination applications, compliance and sponsorship bars.

 

Current as

23 August 2019

Prepared by

1275998

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