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CHANGES TO SUBCLASS 457 SPONSOR OBLIGATIONS


From the 14th September 2009 all new and existing sponsors of Subclass 457 visa holders must meet new obligations.

There are some transitional arrangements for sponsors of employed visa holders such that sponsoring employers who are paying their primary sponsored person the Minimum Salary Level (“MSL”) prior to 14 September 2009, have until 1 January 2010 to move to paying “market salary rates”.

So What is a Market Salary Rate?

Standard business sponsors must pay all new Subclass 457 visa holders “market salary rates”.  The only exception to this is where the annual nominated earnings of the primary sponsored person are equal to or greater than $180,000.  Market salary rates are to be assessed depending on the circumstance of the position.  Thus, where there is an Australian equivalent in the workplace, the market salary rate will be assessed by whatever industrial arrangement applies to that worker or workers.  These arrangements could be in the nature of a collective agreement, an aware condition with over award salary rates, or a common law contract.

Where there is no Australian performing equivalent duties in that workplace, the employer then has the onus to prove a market salary rate by other means.  Thus, documented evidence relative to what employees are paid in similar workplaces would help substantiate the market salary rate.  Similarly, market remuneration surveys or ABS data might help establish the market salary rate.

The Temporary Skilled Migration Income Threshold (“TSMIT”)

The concept of a TSMIT commenced on 14 September 2009 and is set currently at $45,220.  This is only a notional sum and does not have a direct influence on what a worker should be paid in any one workplace.  However, the Department of Immigration and Citizenship (“DIAC”) have indicated that in most cases if a nomination is made below the level of the TSMIT, it is likely to be refused.

However, even if the proposed nominated salary is greater than the TSMIT, but less than the market salary rate, the nomination is also likely to be refused.  Similarly if the market salary rate is less than the TSMIT, but the proposed sponsor nominates a salary rate higher than the TSMIT, the nomination could still be refused, since the market salary rate that DIAC would compare to the TSMIT is lower.


Other Obligations

Other obligations under Subclass 457 changes have been strengthened.  These include:

1. Sponsors must pay reasonable and necessary travel costs to ensure both primary and secondary sponsored persons are available to leave Australia if the costs have been requested in writing by the sponsored person or by DIAC on the sponsored person’s behalf.
2. Sponsors must co-operate with inspectors appointed under the Migration Act.  This might include not only not hindering or obstructing an inspector, but ensuring that there is no concealment or attempt to conceal documents or other information.
3. Sponsors have an obligation to keep records of their compliance with other sponsorship obligations.  These records must be kept in a reproducible form or format.
4. Sponsors must provide certain records and information to DIAC in a manner and in a timeframe requested by them.  These records might include such things as tax returns, records of requests by sponsored persons to pay return travel costs and labour agreement documentation.
5. In the event that any sponsored person becomes unlawful, the sponsor might be required to pay DIAC’s costs in locating or removing those persons from Australia.  This is generally capped at approximately $10,000.
6. There is an ongoing obligation to provide information to DIAC in certain circumstances, such as where the sponsor changes address or contact details, where there is a cessation or expected cessation of the primary sponsored person’s employment and/or a change to the work duties carried out by that primary sponsored person.
7. Sponsors have an obligation to ensure that the primary sponsored person does not work in any other occupation other than the occupation that has been identified in the approved nomination.  Where a sponsor wishes to vary that occupation it is generally necessary to lodge a fresh nomination form before any change is implemented.
8. Sponsors are barred from recovering or seeking to recover from sponsored persons certain costs, including:

Sanctions
DIAC have grounds to take action where sponsors fail to satisfy their obligations.  These can include:

1. Barring the sponsor for a specified period from sponsoring more people;
2. Barring the sponsor for a specified period from future applications;
3. Cancelling some or all existing approvals;
4. Applying civil penalties up to $33,000 for a corporation and $6,600 for each individual failure;  or issuing an infringement notice up to $6,600 in respect to a Body Corporate;  or $1,200 for an individual for each failure to satisfy sponsorship obligations.

Further, DIAC may take administrative action where, for instance, false or misleading information has been supplied to DIAC or the Migration Review Tribunal (“MRT”);  or where the sponsor no longer satisfies the criteria for approval as a standard business sponsor;  or where a primary sponsored person has contravened a law relating to licensing, registration or membership which was required in compliance with the nominated occupation;  or has failed to pay certain medical or hospital expenses incurred by the sponsored person.

This Newsletter does not constitute specific advice and is provided in the nature of general information only.  It is not to be relied upon as specific legal advice.  Should you have any circumstance which requires specific advice, please contact us for that purpose.