COVID-19 and the current climate has forced significant changes in many businesses which include downsizing, redundancies, standing down workers, and changing employees’ duties due to work from home arrangements. Companies are making rapid decisions, but need to remember the fundamentals of immigration compliance to avoid a breach of migration law and sponsorship obligations
If compliance is not monitored carefully, your business could jeopardise its eligibility to sponsor future workers and may lead to legal ramifications for your company’s immigration program.
Have you complied with all sponsorship obligations during the pandemic?
Specific sponsorship obligations may vary depending on the visas your employees hold. However, there are general guidelines that apply to all types of Australian work visas. For example, you need to be aware of the following obligations that apply to employees on sponsored visas:
- Keeping records: Record keeping is crucial for a sponsoring employer since it creates a paper trail of your compliance. Some of the events and items that need to be recorded include Department notifications, a log of tasks performed by the sponsored person along with their compensation for the work, documents related to their training, receipts for return travel costs, a log of non-monetary benefits paid to sponsored people, a record of the terms and conditions of their employment and copies of employment contracts. Sponsors may be audited at any time for compliance with this obligation and must provide any information requested by the Department.
- Equivalent employment terms: Employers must offer equivalent working conditions to all their employees regardless of their visa or citizenship status. These terms have to be consistent with what the Department approved for the sponsored person. Changes to a sponsored person’s work hours, role or salary requires approval – depending on the circumstances, this may involve notification to the Department, or, in some cases, a new TSS nomination application must be lodged and approved before the change can take effect.
- Non-discriminatory recruitment practices: Australian law does not permit discriminatory hiring tactics. Standard business sponsors are not allowed to discriminate on the basis of a person’s visa or citizenship status. For example, a company cannot only hire or refrain from hiring people with certain citizenship status, or advertise specifically for people with particular visas. Similarly, companies need to ensure procedural fairness when reviewing roles for redundancy.
- Paying return travel costs: When requested in writing, sponsors are obligated to pay “reasonable” travel costs for sponsored employees and their families to leave Australia. This includes costs from the person’s place of residence to their port of departure and travel by economy class by air (or the equivalent for other forms of transportation) from Australia to their home country.
- Costs of locating and removing unlawful employees: If a sponsored person or one of their family members doesn’t hold a valid visa, a sponsor may be required to cover the expenses of locating and removing them from Australia – so it is crucial to ensure that sponsors keep track of their visa holder population particularly departing employees.
- Cooperating with inspectors: Sponsoring companies must work with inspectors to give access to records, work premises and anything else requested under the law. This is a requirement even if you’re in compliance with immigration rules.
- Reporting changes: The Department has to be made aware of certain events in writing within 28 days of the event occurring. This includes changes to your business name, changes in owners or stakeholders, alterations to the business structure, a closure of the business, bankruptcy, and even a change of address. What you’re obligated to report varies depending on your type of entity.
- Working in nominated occupation: Sponsored employees have to work in the occupation for which they were approved. To change the occupation, employers have to seek approval by lodging a new nomination for the new occupation approved by the Department before the person switches roles.
- No recovery of costs: Sponsors aren’t allowed to take any action, or seek to take any action, to recover costs incurred through the recruitment of the sponsored person, the process of becoming a sponsoring business or the costs of using a migration agent even if an employee ceases employment. Companies are solely responsible for those expenses.
- Paying for visa sponsorship conduct: It’s illegal to ask for, receive or give a benefit in exchange for visa sponsorship or employment in Australia.
Keeping track of your obligations with a compliance checklist
As a sponsor, there are numerous requirements to be aware of. This practical checklist contains the major points of compliance that should be tracked over time:
- Keep records of immigration status for all employees
- Keep records of visa type, conditions, and expiry dates
- Keep copies of VEVO checks
- Audit sponsored workers for any changes to the role and duties of their nominated occupation
- Keep copies of notifications made to the Department notifying changes to the business or employment of sponsored visa holders
- Ensure sponsored workers continue to be paid the nominated earnings and at the current market salary rate
- Keep records of return travel costs paid to sponsored visa holders
- Ensure contracts with recruiters and suppliers address immigration compliance
Could I be liable for non-compliance during the pandemic?
There are possible consequences if you are not meeting your sponsorship obligations, and regulators are still actively ensuring employers are complying with their sponsorship responsibilities. Whilst regulators may not be conducting site inspections due to the Coronavirus, they are still taking complaints and can compel businesses to hand over information about their compliance if requested. Regulators are also monitoring employers to ensure they do not abuse their new flexible-working options.
If companies fail to meet their compliance obligations, they may lose their approved sponsorship status and the ability to sponsor workers, jeopardise their existing sponsored visa holders, face financial penalties, and lose current sponsored staff, not to mention brand or reputational damage – so it is essential to stay up-to-date with your compliance.
For example, business decisions made on the run which may seem innocuous – like standing employees down due to reduced staffing needs, or having a sponsored person perform alternate duties due to COVID-19 restrictions – could put your sponsorship status at risk if not informed to the Department.
Do you need help determining if you are compliant with your sponsorship requirements?
Managing your business sponsorship compliance does not have to be overly complex, particularly when you can outsource your immigration compliance.
Our team is currently supporting clients with a fully outsourced compliance solution for employers, including for standard business sponsors and employers of other temporary visa holders.
If you need assistance reviewing your immigration compliance or a compliance solution that is in line with government regulations and best practices, please contact us today. Our knowledgeable immigration lawyers are ready to assist
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Nevett Ford Lawyers Melbourne
📞: +61 396 147 335