TSS SPONSORSHIP AND EXISTING 457 SPONSORSHIP OBLIGATIONS

Sponsorship obligations apply to all sponsors of Temporary Skill Shortage (TSS) visa holders and 457 visa holders.

Contact Us today to discuss your needs: 02 9635 5333

Sponsorship obligations are in place to ensure that overseas skilled workers are protected from exploitation, and that the visa program is being used to meet genuine skills shortages, and not to undercut local labour wages and conditions. Some obligations apply beyond the term of sponsorship approval.

As a sponsor you must:

>>The TSS 482 visa replaces the 457 visa which will no longer be applied for. 

Cooperate with inspectors

You must cooperate with inspectors appointed under the Migration Act 1958 (the Act) who are investigating whether:

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

This obligation:

  • starts on the day the sponsorship is approved or work agreement commences
  • ends five years after the day the approved sponsorship ends, or work agreement ceases.

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

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

Ensure equivalent terms and conditions of employment

If you are a standard business sponsor:

  • the annual earnings of the person you have sponsored must not be less than:
    • those indicated at the time the nomination was approved, and
    • the earnings that an equivalent Australian worker earns or would earn
  • the employment conditions (other than in relation to earnings) received by the person that you have sponsored must not be less favourable than those that are received or would be received by an equivalent Australian worker.

Please Note:

  • this obligation does not apply to a sponsor if the annual earnings of their sponsored visa holder are equal to, or greater than AUD250,000
  • the obligation also applies if you are a labour agreement sponsor, unless varied arrangements are specified in the labour agreement you entered into with the Department.

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

  • the person you have sponsored is granted a TSS visa
  • your nomination is approved (if they already hold a TSS or subclass 457 visa when your nomination was approved).

This obligation ends either:

  • on the day the sponsored visa holder stops working for you, or
  • on the day they are granted a further visa other than another TSS visa, or a bridging visa, a criminal justice visa, or an enforcement visa.

If the sponsored visa holder is granted another TSS visa to continue to work for you, this obligation continues.

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, in addition to records that must be kept under other Australian Government, and state or territory laws, include the following:

  • written requests for payment of outward travel costs for a sponsored visa holder or their family, including when the request was received
  • 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
  • notifying the Minister of an event required to be reported to the Minister, including the date and method of notification and where the notification was provided
  • tasks performed by the sponsored visa holder in relation to the nominated occupation and where the tasks were performed
  • money paid to the sponsored visa holder (unless the sponsored visa holder earns over AUD250,000)
  • money applied or dealt with in any way on behalf of the sponsored visa holder or as the sponsored visa holder directed (unless the sponsored visa holder earns over AUD250,000)
  • 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 (unless the sponsored visa holder earns over AUD250,000)
  • 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 (unless the sponsored visa holder earns over AUD250,000)
  • the written contract of employment each sponsored visa holder is engaged under
  • if you were lawfully operating a business in Australia at the time of your approval as a standard business sponsor or have varied the terms of your approval as a standard business sponsor—how you are complying with the training obligation
  • if you are a party to a work agreement, the records required to be kept under the work agreement.

The obligation starts the day the sponsorship is approved, or work agreement begins.

This obligation ends two years after both of the following:

  • your sponsorship or the work agreement ceases
  • you are no longer sponsoring anyone.

Provide records and information to the Minister

You must provide records or information, if they are requested by a departmental officer that goes to determining whether:

  • a sponsorship obligation is being or has been complied with, and
  • determining whether other circumstances, in which the Minister might take administrative action, exist or have existed,
    in the manner and timeframe requested by the Minister.

We might ask you in writing to provide records or information which relate to your sponsorship obligations, and any other matters that relate to your sponsorship of TSS visa holders. You must provide the records or information requested if it is a record or information that:

  • you are required to keep under Commonwealth, state or territory law
  • you have an obligation to keep as a sponsor.

This obligation starts to apply on the day the sponsorship is approved, or work agreement commences.

This obligation ends two years after:

  • your sponsorship or work agreement ceases
  • you no longer have a sponsored visa holder.

Tell the Minister when certain events occur

You must tell the Minister in writing when certain events occur. Examples of some events include changes to your:

  • legal name
  • trading name
  • registration details
  • business structure
  • ongoing communication contact
  • owners/Directors/Principals/Partners
  • business address

You must also notify the Minister of business changes such as:

  • insolvency / bankruptcy / receivership / liquidation / administration
  • cessation of existence as a legal entity

or changes to the sponsored person, such as:

  • cessation of employment
  • changes in duties
  • sponsored person did not commence employment
  • information regrading the training requirement.

Notification will need to occur via one of two methods:

  • email to an address specified in the relevant legislative instrument (see ‘Where to send a notice of an event or change’) or
  • by completing the new notification of sponsor changes form via ImmiAccount where available.

This obligation starts to apply on the day the standard business sponsorship is approved, or the work agreement commences.

This obligation ends two years after:

  • your sponsorship or the work agreement ends and
  • you are no longer sponsoring anyone.

Changes or events that all sponsors must notify within 28 calendar days

You must notify the Minister within 28 calendar days if:

  • the sponsored visa holder’s employment ends, or is expected to end(the sponsor must tell the Minister 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 theBankruptcy Act 1966 and section 95A of the Corporations Act 2001
  • your business ceases to exist as a legal entity.

If your business is a company

A company must also notify the Minister of the following changes or events within 28 calendar days if:

  • a new director is appointed
  • 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 theCorporations Act 2001.

If you are an individual

If you operate your business as an individual, you must also notify the Minister of the following changes or events within 28 calendar days:

  • 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.

If your business is a partnership

You must also notify the Minister of the following changes or events within 28 calendar days:

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

If your business is an unincorporated association

An unincorporated association must also notify the Minister 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.

Where to send a notice of an event or change

You must send details of these events by:

Contact Us today to discuss your sponsorship obligations: 02 9635 5333

Visa holder to participate in nominated occupation only

You must ensure that the person you have sponsored participates only in the occupation for which you nominated them. You must also ensure that the sponsored person works in their nominated occupation.

If you want to engage a visa holder for a different occupation, you must lodge a new nomination application. This obligation starts on the day the person you have sponsored is granted a visa. If they already hold a visa when you nominate them, your obligation starts on the day the nomination is approved.

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

  • the sponsored visa holder has a nomination approved for another approved sponsor
  • the sponsored visa holder is granted another substantive visa of a different type for which you sponsored them (unless that other visa is a bridging visa, criminal justice visa or enforcement visa
  • the sponsored visa holder has left Australia and the relevant visa (and 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. 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).

The only exception to this rule is if the sponsored visa holder’s occupation is an exempt occupation as specified in relevant TSS legislative instruments for the purposes of this obligation. The obligation ends on the day the sponsored visa holder is granted another substantive visa of a different subclass from the one they last held. The obligation continues if the sponsored visa holder is granted another TSS visa to continue to work for you.

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:

  • the recruitment of the person you sponsored
  • becoming or being a sponsor or former approved sponsor
  • nomination and migration agent costs.

This obligation:

  • starts on the day the sponsorship is approved or the work agreement commences
  • ends on the following two events:
    • you cease to be an approved sponsor or party to a work agreement
    • you no longer have a sponsored visa holder.

Sponsors are also required to pay certain costs associated with becoming a sponsor or lodging a nomination and must not pass these costs, in any form, onto another person. These include:

  • cost of sponsorship and nomination charges
  • migration agent costs associated with the lodgement of sponsorship and nomination applications
  • administrative costs and any sundry costs an employer incurs when they conduct recruitment exercises, including:
    • recruitment agent fees
    • migration agent fees
    • the cost of job advertising
    • screening of candidates, short listing, interviews and reference checks
    • salaries of recruitment or human resource staff
    • 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
    • responding to queries for prospective candidates, and advising unsuccessful applicants
    • travel costs for the sponsor to interview and/or meet the applicant either overseas or in Australia.

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. We can also make a written request on their behalf.

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

  • travel from the sponsored persons usual place of residence in Australia to their place of departure from Australia
  • travel from Australia to the country (for which the sponsored visa holder holds a passport) and intends to travel to
  • 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.

You will only be required to pay return travel costs once. If a sponsored person returns to Australia (whilst holding the visa for which you sponsored them) after you have paid their return travel costs, you will not be required to pay their return travel costs again.

This obligation starts on the day:

  • the visa is granted (if the sponsored person did not already hold a visa when your nomination of them was approved, or
  • your nomination is approved (if the person already held a visa in this subclass when your nomination is approved).

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

  • another sponsor has their nomination application for the sponsored person approved
  • the person you sponsored is granted another visa other than a TSS visa, a bridging visa, a criminal justice visa, or an enforcement visa the person you sponsored has left Australia and the relevant visa (and any subsequent bridging visa) is no longer in effect.

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.

You might be liable to pay the Commonwealth the difference between the actual costs incurred by the Commonwealth (up to a maximum of AUD10,000) less any amount which might have already been paid under the obligation to pay travel costs to enable sponsored persons to leave Australia (see ‘Obligation to pay travel costs’ above).

This obligation starts on the day the person you sponsored becomes an unlawful non-citizen. It ends five years after they leave Australia. This means that we might, up to five years after the person you have sponsored has left Australia, give you a letter requiring payment of the costs that the Commonwealth paid to locate and remove the person you sponsored prior to their departure from Australia.

Provide training to Australians and permanent residents

If you are a standard business sponsor and you lawfully operated a business in Australia at the time you were approved as a standard business sponsor (or at the time you had your terms of approval varied). You must contribute to the training of Australians by either:

  • spending an equivalent of at least two per cent of your payroll in payments to an industry training fund that operates in the same or related industry as you
  • spending an equivalent to at least one per cent of your payroll in the provision of training to employees of your business who are Australian citizens or Australian permanent residents.

The obligation begins on the day you are approved as a sponsor. You must meet this obligation in each 12-month period within which you employ a sponsored visa holder (including if the sponsored visa holder is not employed by you for the full twelve months). Where your approval as a standard business sponsor is varied, you must meet the training requirement if you employ one or more primary sponsored persons.

The obligation ends either:

  • three years after you are approved as a sponsor
  • if you are an accredited sponsor, six years after you are approved as a sponsor.

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.

You should keep documents on hand that demonstrate that the recruitment process in relation to a TSS visa holder did not discriminate based on citizenship or visa status.

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

Monitoring of sponsors and visa holders

You must comply with your obligations as a sponsor. We monitor your compliance with the sponsorship obligations and whether your visa holders are upholding their visa conditions.

We monitor you while you are a sponsor and for up to five years after you cease being a sponsor. We do this routinely and in response to information provided to the Minister, and in three main ways:

  • writing to you to ask for information in accordance with the obligation to provide records and information
  • site visits, usually to the sponsored business premises, with or without notice
  • exchanging information with other Commonwealth, state and territory government agencies, including the Fair Work Ombudsman, the Department of Employment and the Australian Taxation Office.

Your compliance with the sponsorship obligations might be monitored by Immigrations 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 the sponsorship obligations.

Subject to legislation passing, the Department will publish information identifying sponsors who have not complied with their sponsorship obligations and any action taken against them. Further information will be available if this occurs.

Sanctions for not meeting your sponsor obligations

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

Administrative

  • you could be barred from sponsoring more people for a specified time
  • you could be barred from applying for approval to be a sponsor, in relation to this visa or another one
  • all of your existing approvals as a sponsor could be cancelled.

Enforceable undertaking

You could be invited to enter into an enforceable undertaking. Enforceable undertakings require you to promise, in writing, to undertake to complete certain actions to demonstrate that the failures have been rectified and won’t happen again.

Civil

  • we can issue an infringement notice of up to AUD12,600 for a body corporate and AUD2520 for an individual for each failure.
  • we can 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 Minister 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 the sponsor is a standard business sponsor or has made a work agreement.

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

Contact Us today to discuss your sponsorship obligations: 02 9635 5333

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