Employer’s Sponsorship Obligation

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The Sponsorship Obligation

As a standard business sponsor, you must agree to make, and meet, certain obligations in relation to your sponsored employee and any family members included in the visa application. These obligations are prescribed by legislation and are as follows:

Obligation Explanation Duration of the Sponsorship Obligation
To cooperate with inspectors Inspectors are being appointed to investigate sponsors Starts when the sponsorship is approved and ends 5 years after the day on which the person ceases or ceased to be a sponsor
To ensure equivalent terms and conditions of employment You must ensure that the terms and conditions of employment provided to a primary sponsored person are no less favourable than the terms and conditions the person provides, or would provide, to an Australian citizen or permanent resident to perform work in an equivalent position in the persons workplace at the same location If the nominated person holds a visa, this obligation commences from the time the nomination is approved
If the nominated person does not hold a visa, this obligation commences from the time the visa is granted
This obligation ceases when the primary sponsored person ceases employment, or is granted a further substantive visa
To pay travel costs to enable sponsored person to leave Australia You must pay reasonable and necessary travel costs to enable the sponsored persons to leave Australia. The cost is for economy air travel and includes internal travel within Australia. If the nominated person holds a visa, this obligation commences from the time the nomination is approved.
The costs must be requested in writing by the visa holders or by DIAC If the nominated person does not hold a visa, this obligation commences from the time the visa is granted
The costs must be paid within 30 days.
The travel is from Australia to the country for which they hold a passport specified in the request to pay travel costs. This obligation ceases when another nomination is approved, a further substantive visa is granted or when the visa holder has left Australia and no longer holds the 457 visa
You must keep records of paying the air travel
To pay the Commonwealth for locating and removing visa holders who have overstayed their visa You have an obligation to pay the costs incurred by the Commonwealth in locating and/or removing the visa from Australia:

  • If the Minister has requested the payment by written notice
  • These costs will be capped at $10,000 per person (less any amount paid under the travel costs obligation)
If the nominated person does not hold a visa, this obligation commences from the time the visa is granted
If the nominated person does not hold a visa, this obligation commences from the time the visa is granted
This obligation ceases when the primary sponsored person ceases employment, or is granted a further substantive visa
To keep records You must keep records of compliance with the obligations:

  • All records must be reproducible and some must be capable of verification by an independent person
  • A list of records must be kept
This obligation commences from the time a sponsor is approved
This obligation ceases 2 years after the last sponsored person ceases with the sponsor
To provide records and information to the Minister You must provide records/ information that does to determining whether:A sponsorship obligation is being, or has been complied with; andOther circumstances in which the Minister may take action, exist or may have existed This obligation commences from the time a sponsor is approved
Must be provided on request and in the manner and timeframe requested This obligation ceases 2 years after the last sponsored person ceases with the sponsor
To provide information to DIAC when certain events occur Certain information must be provided to the DIAC when certain events occur. This obligation commences from the time a sponsor is approved
This obligation ceases when the sponsorship ceases, and where the employer is no longer sponsoring a visa holder
To ensure primary sponsored person does not work in an occupation other than an approved occupation You must ensure that the primary sponsored person does not work in an occupation other than the occupation for which it has been approved for. If the occupation is to be changed, a new nomination application must be made If the nominated person holds a visa, this obligation commences from the time the nomination is approved.
No independent contractors (unless an exempt occupation) If the nominated person does not hold a visa, this obligation commences from the time the visa is granted
This obligation ceases when another nomination is approved, a further substantive visa is granted or when the visa holder has left Australia and no longer holds the 457 visa
Not to recover certain costs from a primary sponsored person or secondary sponsored person You must not recover or seek to recover, all or part of the costs (including migration agent costs):

  • That relate to the recruitment of the primary sponsored person
  • Associated with becoming a sponsor or former approved sponsor
If the nominated person holds a visa, this obligation commences from the time the nomination is approved.
If the nominated person does not hold a visa, this obligation commences from the time the visa is granted
This obligation ceases when another nomination is approved, a further substantive visa is granted or when the visa holder has left Australia and no longer holds the 457 visa

Events that must be notified

Event

When to notify the department

The primary sponsored person’s employment ceases, or is expected to cease
  • Within 10 working days of the primary sponsored person ceasing employment
  • The sponsor may notify the department of the final date of the primary sponsored person’s employment. However, if the primary sponsored person does not cease employment, or ceases employment on a different date, then the sponsor must notify the department of this.
There is a change to the work duties carried out by the primary sponsored person Within 10 working days of the change or event occurring
If the sponsor is a standard business sponsor, there is a change to the information provided to the department 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 Within 10 working days of the change or event occurring
If the sponsor is a party to a labour agreement, a change to the sponsor’s address and contact details or the training information provided in the labour agreement Within 10 working days of the change or event occurring
The sponsor has paid the return travel costs of a primary sponsored person or secondary sponsored person in accordance with the obligation to ‘pay return travel costs’ Within 10 working days of the change or event occurring
The sponsor has become insolvent within the meaning of subsections 5 (2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001 Within 10 working days of the change or event occurring
The legal entity of the sponsor ceases to exist Within 10 working days of the change or event occurring

 

Training Benchmarks

The business is not required to demonstrate that they are an industry leader in training,

The business is required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business.

The training benchmarks for an established business are:

A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor.

OR

B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor.

Expenditure that can count towards this benchmark includes:

  • paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy
  • funding a scholarship in a formal course of study approved under the Australian
  • Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy
  • employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business
  • employment of a person who trains the business’ Australian employees who are
  • Australian citizens and Australian permanent residents as a key part of their job
  • evidence of payment of external providers to deliver training for Australian employees
  • on-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating:
    • the learning outcomes of the employee at each stage,
    • how the progress of the employee will be monitored and assessed;
    • how the program will provide additional and enhanced skills;
    • the use of qualified trainers to develop the program and set assessments; and
    • the number of people participating and their skill/occupation

Expenditure that cannot count towards this benchmark includes training that is:

  • delivered on-the-job, other than on the job training which meets the requirements outlined above under the heading ‘expenditure that can count towards this benchmark’
  • confined to only one or a few aspects of the businesses broader operations, unless the training is in the primary business activity
  • only undertaken by persons who are not Australian citizens or permanent residents
  • only undertaken by persons who are principals in the business or their family members
  • only relating to a very low skill level having regard to the characteristic and size of the business.

What is payroll?

Payroll is the amount of money an employer pays in wages to their employees, in the 12 months prior to application lodgement. Payroll expenditure includes any wages, remuneration, salary, commission, bonuses, allowances, superannuation contributions (mandatory or otherwise) or eligible termination payments that are defined as wages in the Act relating to payroll tax in the relevant State or Territory.

What is recent expenditure?

For expenditure to qualify as ‘recent’, the evidence provided should demonstrate that the expenditure occurred in the 12 months immediately preceding the application date. This is irrespective of whether the applicant is seeking to meet Training Benchmark A or Training Benchmark B.

Is this just a ‘one off’ commitment?

No. As a sponsor, you must meet the training benchmark requirement every year that you are a sponsor. In making the commitment to meet the training benchmarks on an ongoing basis, sponsors are expected to fulfil this commitment during their period of approval as a sponsor. Sponsors who do not continue to meet the training benchmarks during their period of approval may be barred from sponsoring overseas workers or have their approval as a sponsor cancelled.

What is an industry training fund?

Industry training funds are statutory authorities responsible for providing funding for training of eligible workers in certain industries. Industry training funds operate in a range of sectors including construction and mining, but are not limited to these industries.  Applicants seeking to contribute to an industry training fund should use a fund that operates in the same industry as the business. To meet this benchmark, applicants must provide evidence of having made these contributions, such as a receipt or letter from the industry training fund or registered training organisation.  In some sectors where there is no statutory industry training fund operating, recognised industry bodies who provide training opportunities for their members have established procedures where they will accept contributions towards the provision of such training. Revenue received for training is quarantined in their budget to be used for training purposes only with a small component able to be used to administer the fund. Contributions to such funds are acceptable for the purposes of meeting training benchmark A.

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