Require Company Sponsorship for Continued Employment

Think that your employers sponsorship obligations only exist until your visa expires or until you leave your sponsor's employ? Think again.

Sponsorship obligations are a little known but very important set of conditions that a standard business sponsor agrees to undertake and must adhere to throughout the period of validity of their standard business sponsorship approval and beyond.

The example for today is where a person who lodged for an ENS application and his 457 has expired. He is waiting for the PR ENS visa to be processed on a Bridging Visa A. There are no limitations on his bridging visa but what about the obligations of the sponsor even though the sponsorship approval (457) for the company expired over a year ago? Is the visa applicant still required to be working in the original 457 nominated occupation? What can happen if they are working in some other occupation? Does the employer have the obligation to ensure primary sponsored person works or participates in nominated occupation? Can they be penalised if this obligation is breached? Read on.

Sponsorship obligations affect standard business sponsors as well as temporary activities sponsors. Note that some of the obligations across standard business sponsors as well as temporary activities sponsors are similar, and whilst we cover only the obligations that affect standard business sponsors in this article, some of those obligations also apply to temporary activities sponsors.

Standard business sponsors are obligated to:

• Cooperate with inspectors
• Ensure equivalent terms and conditions of employment
• Pay travel costs to enable sponsored persons to leave Australia
• Pay costs incurred by the Commonwealth to locate and remove unlawful non-citizen
• Keep records
• Provide records and information to the Minister
• Ensure primary sponsored person works or participates in nominated occupation
• Not to recover, transfer or take actions that would result in another person paying for certain costs
• Provide training
• Provide information to Immigration when certain events occur
• Not engage in discriminatory recruitment practices

Read: What Obligations Does a Sponsor Have?

In this article we will briefly cover each obligation but focus on when the sponsorship obligation applies. For more information on each obligation, please refer to the article linked above.

When sponsorship obligations begin when it ends depends on what obligation is being considered.

Obligation to cooperate with inspectors

This obligation begins on the day that one is approved as a sponsor an ends five years after the day on which the person ceases to be a sponsor.

The sponsor and any employee of the sponsor with actual or apparent authority is required to cooperate with an official inspector. The inspector has the right to:

• Enter premises
• Inspect any work, process or object
• Interview persons while on premises or at a place
• Require a person to tell the inspector 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 to tell the inspector the person's name and address, if the inspector reasonably believes that the person has contravened a civil penalty provision

This means that even if a sponsored employee is no long under the employ of organisation, the organisation is still obligated to co with operate the Department of Home Affairs (DOHA) under the above terms up to five years after the end of the validity of their standard business sponsorship approval.

Obligation to ensure equivalent terms and conditions of employment

Sponsored persons are to be provided with 'terms and conditions that are no less favourable than that provided to, or would be provided to Australian citizens or permanent residents performing equivalent work in the same workplace and location (market salary rate)'.

Read: TSS 482, ENS & RSMS Visas: Salary Requirements

This obligation begins on the day that one is approved as a standard business sponsor and end on the day on which the sponsored employee ceases their employment with the sponsor.

Obligation to pay travel costs to enable sponsored persons to leave Australia

If the TSS 482/457 visa holder or secondary TSS 482/457 visa holder (dependent) requests for travel costs to be paid for for them to leave Australia, the sponsor is obligated to assume these costs. The reasons for the TSS 482/457 holder's departure has no leverage affecting this obligation. The costs must be reasonable and necessary.

This obligation commences on the day a sponsored person is granted the nomination application for their visa is approved and end on the earliest of one of the following events:

• The day the sponsored person has a nomination approved to work for a different sponsor
• The day the sponsored person holds a different subclass of substantive visa
• The sponsored person has left Australia and the relevant substantive visa has ceased
• If the sponsored person held a Bridging B visa when they left Australia and the last substantive visa held was a Temporary Work (Long Stay Activity), Training and Research, Temporary Activity, Special Program, TSS 482 or 457 visa, the day on which the bridging visa has ceased to be in effect

Obligation to pay costs incurred by the Commonwealth to locate and remove unlawful non-citizen

Should a TSS 482/457 visa holder decide to stay on in Australia after the validity of their TSS 482/457 visa has ceased and the government incurs costs in locating and removing the now unlawful non-citizen, the sponsor is obligated to pay the costs back to the government. The costs are capped at $10,000. The government will need to provide written notice to retrieve these costs.

This obligation commences on the day on which a sponsored person becomes an unlawful non-citizen. This obligation ends five years after the time the sponsored person leaves Australia.

Obligation to keep records

The sponsor is required to keep records demonstrating that they have been in compliance with their sponsorship obligations. Records must be kept in a reproducible format and need to be kept for at least 5 years.

This obligation begins on the day a person is approved as a sponsor and ends two years after the first day on which each of the following both occurs:

• The person ceases to be an approved sponsor or party to a work agreement and
• There is no sponsored persons employed by the sponsor

This means that from the point at which the above two events occur concurrently the sponsor will have a further five years that they are required to keep records.

Obligation to provide records and information to the Minister

This obligation starts when a person is approved as a sponsor and ends two years after the first day on which both of the following events occur:

• The person ceases to be an approved sponsor or party to a work agreement and
• There is no sponsored persons employed by the sponsor

This means that from the point at which the above two events occur concurrently the sponsor will have a further five years that they are required to provide records and information to the Minister, similar to the obligation to keep records.

Obligation to provide information to Immigration when certain events occur

The sponsor must give notice to the Department  when the following events take place:

• Cessation of the TSS 482/457 holder's employment
• Changes in the TSS 482/457 holder's roles and responsibilities
• Changes in information in what was provided in the sponsor's SBS application in relation to: training requirement, addresses and contact details
• If the legal entity of the sponsor ceases to exist
• The sponsor has paid for return travel costs for the TSS 482/457 holder's departure from Australia
• The sponsor has become insolvent / liquidated / bankrupt / experiencing severe financial turmoil
• New partners, directors and members to managing committee

This obligation commences from the day on which a sponsorship is approved and ends after the first day when:

• The person ceases to be an approved sponsor or party to a work agreement and
• There is no sponsored persons employed by the sponsor

Obligation to ensure primary sponsored person works or participates in nominated occupation

Considering the scenario we described above the following must be considered. It is an obligation on the sponsor to make sure that the majority of the roles and responsibilities carried out by the TSS 482/457 holder are clearly within those stipulated under that occupation's ANZSCO code description. Ad hoc duties are commonplace and such duties will not be penalised.

This obligation comes into effect from the day the primary sponsored person is granted their visa and ends on the earliest of the occurrence of one of the following events:

• The day on which the sponsored person is granted a further substantive visa that is in effect and is a visa of a different subclass to the last substantive visa held by the sponsored person
• The day on which the sponsored person is granted a further Temporary Activity visa with a new sponsor
• The first day for any of the following:
  • The primary sponsored person has left Australia
  • The Temporary Activity visa that the primary sponsored person was granted ceases to be in effect
  • The Bridging visa B has ceased to be in effect – if the primary sponsored person held a Bridging visa B when they left Australia and the last substantive visa held was a Temporary Activity visa

So in our example the visa applicant has not left Australia and has also not been granted a further substantive visa. The answer then is yes, the employer has the liability to ensure the original sponsorship obligations are being followed. None of the above listed events have actually occurred yet so the obligation is ongoing.

Obligation to not to recover, transfer or take actions that would result in another person paying for certain costs

Costs that cannot be recovered / transferred (in any manner) include:

• Cost of sponsorship and nomination charges
• Migration agent costs
• Administrative costs (e.g. recruitment exercise /advertising / agent)
• Costs associated with screening of candidates, interviews, reference checks (internal or outsourced)
• Salaries of recruitment or human resources staff
• Training costs including those associated with meeting training benchmarks
• Agreed costs in attracting the TSS 482/457 holder to move to Australia (e.g. flights)
• Other travel costs between the sponsor and TSS 482/457 holder

The obligation commences from the day a person is approved as a sponsor and ends when:

• The person ceases to be an approved sponsor or party to a work agreement and
• There is no sponsored persons employed by the sponsor

Obligation to provide training

It is an obligation for a sponsor to contribute to the Skilling Australians Fund (SAF) for every year that they are approved as a sponsor and in that period, has a sponsored TSS 482/ 457 visa holder. The obligation starts from the day on which a person is approved as a standard business sponsor and ends:

• Three years after the person is approved as a standard business sponsor if the period of approval is less than six years
• Six years after the person is approved as a standard business sponsor if the period of approval is six years or more

Read: TSS, ENS & RSMS Visas: Skilling Australians Fund In effect From 12 August 2018

Obligation not engage in discriminatory recruitment practices

The sponsor is not to show preference to certain citizenships or visa statuses in interviewing and hiring practices, or advertise positions visa mediums only open to people of certain citizenships (e.g. foreign / foreign language platforms / platforms used solely by those residing outside of Australia).

This obligation commences from the date on which a person becomes an approved sponsor or from 19 April 2016, whichever is later. This obligation ceases when the person ceases to be a standard business sponsor.

Read: Temporary Skill Shortage TSS 482 Visa: New Non Discriminatory Recruitment Practices Requirement & Sponsor Obligation

Many sponsorship obligations continue to apply even after a sponsored employee ceases to be employed by their sponsoring organisation. Please be careful to understand the requirements on each separate sponsorship obligation. We recently came across and unfortunate case where a sponsored employee has had their visa expire and is currently on a bridging visa awaiting a new Temporary Skill Shortage (TSS) visa (subclass 482). Despite the fact that that employee is no longer under their visa, the employer is still bound under their sponsorship obligations and that application is currently in rough waters as that employee was found not to still working in their nominated position whilst on their bridging visa.

Are you unsure as to how to adhere to these obligations or are you caught out in having inadvertently not complied with an obligation? ? Book a consultation to speak one of our highly experienced migration specialists. Call +61 2 8054 2537, 0434 890 199 or book online.

Related articles

Read: Standard Business Sponsor: An Introduction to the Bar or Cancellation of Sponsorship

Read: Standard Business Sponsor: Bar or Cancellation Assessment Factors

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Source: https://www.australiavisa.com/immigration-news/sponsorship-obligations-period-of-obligation/

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