To sponsor a foreign worker, you must meet specific sponsorship obligations. The Department of Home Affairs has set out a number of key requirements that must be met when approved as a standard business sponsor (SBS). Failure to adhere to these obligations may lead to penalties.
Purpose of Sponsorship Obligations
The sponsorship compliance framework establishes guidelines for sponsors regarding their obligations and the consequences of breaching those obligations. It aims to ensure that sponsored persons working conditions meet Australian standards, prevent their exploitation by sponsors, maintain the integrity of visa programs, and standardise the requirements for all work sponsors.
Authorised departmental officers have several options for action if a sponsor fails to fulfill their obligations, including imposing civil penalties, barring sponsorship for a specified period, cancelling sponsorship approvals, issuing infringement notices, or entering enforceable undertakings.
Obligations of a Standard Business Sponsor
If you are a standard business sponsor and wish to nominate a position and sponsor someone from overseas, once the nomination and its related visa are approved, you are required to meet the sponsorship obligations in the following aspects:
1. Cooperate with Inspectors (Regulation 2.78)
The key role of inspectors is to ensure that you are compliant with your responsibilities as a sponsor. Inspectors have the authority to investigate approved sponsor employers. You must cooperate with inspectors when they exercise powers such as:
- enter business premises or another place without force if relevant records or documents are reasonably believed to be there.
- inspect any work, process, or object at the entered premises or place.
- interview persons while at premises
- require a person to disclose who has custody of or access to a record or document.
- require a person to produce a record or document
- inspect and make copies of records or documents
- require a person suspected of contravening a civil penalty provision to provide their name and address
- issue a written notice requiring a person to produce records or documents
- inspect, copy, and retain produced records or documents for necessary periods
2. Ensure Equivalent Terms & Conditions of Employment (Regulation 2.79)
When employing a TSS visa holder, you must ensure that:
- the primary sponsored person’s annual earnings must match or exceed what was indicated at the time of nomination approval.
- the primary sponsored person’s earnings must match or exceed those of an Australian citizen or permanent resident performing equivalent work at the same location.
- employment conditions for the primary sponsored person must be as favourable as those for an Australian citizen or permanent resident performing equivalent work at the same location.
However, this obligation does not apply if the annual salary of the TSS visa holder is greater than $250,000.
3. Pay Travel Costs to Enable Sponsored Persons to Leave Australia (Regulation 2.80)
Generally speaking, these costs must be reasonable and necessary.
‘Reasonable and necessary’ costs will include:
- 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 a reasonable equivalent
The employee (or the Department) must write to you to make a request for payment of travel costs. You will need to pay these costs within 30 days of the request. You only need to pay this cost once. If the employee then re-enters the country on a different visa, you will have no such obligation.
4. Pay Costs to Locate & Remove an Unlawful Non-citizen (Regulation 2.81)
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 less costs you might have already paid under your obligation to pay travel costs to enable sponsored people to leave Australia. These costs are capped at a maximum of $10,000.
5. Keep Records (Regulation 2.82)
You must keep records to show your compliance with your sponsorship obligations. All records must be kept in a reproducible format. 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 us, 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 the location or locations at which 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
6. Provide Records and Information to the Minister (Regulation 2.83)
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 or that you are obliged to keep as a sponsor.
7. Provide Information to the Department When Certain Events Occur (Regulation 2.84)
You are required to notify the Department when certain events occur. These include:
- cessation of a primary sponsored person’s employment;
- change of work duties of the primary sponsored person;
- where the business of the sponsor ceases to exist;
- where the sponsor goes into receivership, liquidation, or administration;
- where the sponsor becomes insolvent or is bankrupt;
- where there is a change to the sponsor’s legal name, trading name, registration details, business structure, or communication contact;
- where there is a change in the owners, directors, principals, or partners of the sponsor;
- where there is a change in the sponsor’s business address.
8. Ensure your employee works only in the nominated occupation (Regulations 2.86)
The primary sponsored person’s duties must align with the duties listed on the relevant occupation code for the nominated occupation under the ANZSCO.
You must ensure that:
- the visa holder only works in the occupation for which you nominated them
- you must employ the sponsored person under a written contract of employment
- you must not be involved in the recruiting of that sponsored person to another business unless the other business is an associated entity of your business.
Some work outside the nominated occupation may be considered to be acceptable if the duties are closely related to those of the nominated occupation. However, the significant majority of work must be in the nominated occupation.
If you want a visa holder to work in a different occupation, lodge a new nomination. If you are sponsoring them under the TSS 482 visa or the SESR 494 visa, the employee will also need to apply for and be granted a new visa. Due to this obligation, ongoing assessment of the tasks a sponsored person is caring out should be completed by a sponsor to ensure compliance.
9. Assume all costs yourself (Regulation 2.87)
It is unlawful for individuals to pay an employer to sponsor them for a visa. For example, where the individual directly pays the employer, or the individual provides any other benefit to the employer.
Costs that are not recoverable or transferable include all costs related to:
- cost of becoming a sponsor
- nomination charges
- migration agent costs associated with sponsorship and nomination applications
- recruitment of the sponsored person
Any of the costs regarding recruiting must not be transferred to another person, such as the visa holder or their sponsored family members.
10. Not Engage in Discriminatory Recruitment Practices (Regulation 2.87C)
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 must keep records to show that in recruiting a TSS or SESR visa holder, you did not discriminate on citizenship or visa status.
Concluding thoughts
The obligations imposed on standard business sponsors by the Department of Home Affairs are essential for maintaining the integrity of Australia’s visa programs and ensuring the fair treatment of sponsored individuals. Businesses can be liable for significant penalties, and the cancellation of their sponsorship status.
In essence, the obligations of a standard business sponsor serve to uphold the values of fairness, integrity, and respect within the Australian workforce. Compliance with these requirements is not only a legal responsibility but also a moral imperative in fostering a diverse, inclusive, and equitable society.
If you have any further questions surrounding your sponsorship obligations as a standard business sponsor, please contact Migration Affairs today.
Changes to the migration program can occur without notice. The above information is not intended to be legal advice and is correct as of the date of writing this article.
Contact Migrations Affairs to speak with our immigration experts for tailored advice on the circumstances and eligibility.
