Obligations for TSS Business Sponsors
When sponsoring Subclass 482 Temporary Skills Shortage workers (or 457 visa holders), employers need to be aware of potentially significant sponsorship obligations which apply.
Failure to comply with these obligations can result in cancellation of an existing sponsorship, refusal of a sponsorship renewal, fines and possibly court action.
The main sponsorship obligations are as follows:
Cooperation with Inspectors
Employers are required to cooperate with Workplace Inspectors.
The following would be considered a breach of this obligation:
- Concealing the location of persons and documents
- Obstructing inspector or preventing a person from assisting
- Assaulting, intimidating or threatening inspectors
Commences: date of approval of sponsorship
Ceases: 5 years from ceasing to be a sponsor
Equivalent Terms and Conditions of Employment
Conditions for TSS/457 visa holders must be "no less favourable" than conditions for Australian permanent residents and citizens
Employees must be paid at least the Temporary Skilled Migration Income Threshold of $53,900, as well as a 'market rate' as determined by conditions which would apply to Australian citizens or permanent residents.
Commences: date of approval of TSS/457, or nomination if already the holder of a TSS/457
Ceases: Cessation of employment or grant of further visa
Travel Costs
The employer must pay the cost of return travel for TSS/457 visa holders if properly requested.
The request must be properly made - in particular it must:
- Be made by the Department of Immigration, the primary TSS/457 holder (i.e. the sponsored employee) or by a secondary TSS/457 holder (i.e. members of the employee's family unit)
- Specify the persons covered
- Specify the country of passport they wish to travel to
- Be made whilst person holds TSS/457
The employer's obligation is to pay "Reasonable and necessary" costs only.
Such costs would usually involve:
- Travel costs for both primary and secondary visa holders
- Travel to the point of departure from Australia
- Cost of return to the country of passport via economy class air travel
The costs must be paid within 30 days of request
Commences: date of approval of TSS/457, or nomination if already the holder of a TSS/457
Ceases: grant of further visa, grant of nomination for new employer or permanent departure
Costs to Commonwealth - Location and Removal
This obligation would cover the cost of detection and removal incurred by the Commonwealth if the TSS/457 visa holder overstays their visa. It only covers costs incurred between when the person becomes illegal and when they leave Australia.
If return costs have already been paid by the employer, then only the difference between this and the actual cost is payable.
A maximum limit of $10,000 is applicable for this obligation.
Commences: date person becomes illegal
Ceases: 5 years from date person leaves Australia
Maintenance of records
The employer is obliged to keep certain records, including:
- Request for payment of return travel costs and when received
- Details of payment of return travel costs - date, who for, amount
- Details of notification to the Department of Immigration - when and how transmitted
- Tasks undertaken by TSS/457 holder + location
- Training provided to Australians working in the business
Commences: date of approval of sponsorship
Ceases: 2 years after ceasing to be a sponsor and there are no primary or secondary TSS/457 holders
Notification to Department of Immigration
The employer must notify the Department of Immigration of certain events via registered post or electronic mail to specified address which depends where the sponsorship application was processed by the Department of Immigration.
Notification must be made
within 28 days, and examples of notifiable events include:
- Cessation or expected cessation of employment
- Change to training which may affect approval as a business sponsor
- Changes to the legal structure of the employer
- Payment of return travel for a TSS/457 visa holder
- Insolvency/bankruptcy/administration
Commences: date of approval of sponsorship
Ceases: 2 years after ceasing to be a sponsor and there are no primary or secondary TSS/457 holders
Cost of Sponsorship Approval and Recruitment
The employer must not seek to recover or have another person pay for the cost of:
- Obtaining sponsorship approval
- Recruitment of the primary sponsored person
Commences: date of approval of TSS/457, or nomination if already the holder of a TSS/457
Ceases: grant of further visa, grant of nomination for new employer or permanent departure
It is unlawful for individuals to pay an employer to sponsor them for a visa. This would include situations where the individual directly pays the employer, or a deduction is made from their salary, or the individuals provides any other benefit to the employer. It will result in visa refusal, visa cancellation, fines and even imprisonment.
