New for September – New Updates to the Sponsorship Visas

264 Businesses Sanctioned for Breaching Sponsorship Obligations

The Department of Home Affairs works closely with their partner organization, The Australian Border Force (ABF), to ensure the integrity of Australia’s migration program. During the period from 1 July 2022 to 31 March 2023 the ABF took punitive action against 264 businesses due to violations of their sponsorship obligations.

What are Sponsorship Obligations?

As a sponsor there are various obligations which apply beyond the term of sponsorship approval. To renew or retain your current sponsorship each business must continue to meet their obligations. Non-compliant employers shall have their name published on a publicly available register of sponsors who breach their sponsorship obligations.

These obligations include:

Notifying the Department when certain events occur, such as a change in: Legal name Trading name Business structure Owners, directors, principals and partners Notifying the Department of Home Affairs within 28 calendar days if your sponsored visa holder leaves employment or the nature of the employment changes; Covering all costs associated with sponsorship and nomination applications; Ensuring your employee works only in the nominated occupation; Ensuring the terms and conditions of employment applied to the visa holder are equivalent to Australian workers; Not engage in, or have not engaged in, discriminatory recruitment practices that adversely affect Australian citizens, or any other person, based on their visa or citizenship status; Keep records to show your compliance with your sponsorship obligations; Must provide records or information if requested by a departmental officer; Pay travel costs to let the sponsored employee and their sponsored family members, leave Australia; Pay costs to locate and remove an unlawful non-citizens; Cooperate with inspectors.

Non-Compliance of your Sponsorship Obligations

There are various actions that can be taken if the sponsorship obligations are not met. The department will consider a range of information and circumstances when determining what actions to take, if necessary.

The Department of Home Affairs will monitor your compliance with your sponsorship obligations whilst you are a sponsor and even up to 5 years after your sponsorship ends. 

Immigration inspectors, Fair Work inspectors, or Fair Work Building Industry inspectors, all of whom possess investigative authority under the Migration Act 1958, may oversee your adherence to sponsorship obligations. Non-cooperation with these inspectors constitutes a violation of your sponsorship responsibilities. Some of the most common breached sponsors obligations owed to foreign workers:

• Reducing the salary
• Reducing the working hours
• Permanent stand down
• Termination of employment

A sponsor who fails their obligations will likely be faced with sanctions. These can include one or more of the following:

Administrative

• Cancellation of their approval as a sponsor
• Being barred from sponsoring other workers
• Being barred from making future applications for approval as a sponsor

Civil

• Being issued with an infringement notice of up to:
  • AUD 1,878 for individuals and AUD 9,390 for bodies corporate per obligation breach for a first notice
  • AUD 3,756 for individuals and AUD 18,780 for bodies corporate per obligation breach for subsequent notices
• Civil penalties imposed by the courts (up to AUD 93,900 for a corporation and AUD 18,780 for an individual for each failure.)

Enforceable Undertaking

Enforceable undertaking between the sponsor and the Department of Home Affairs / Australian Border Force. This is a written agreement, promising to undertake to complete certain actions to show that the failures have been rectified and won’t happen again.

Sanctions to Sponsors

For nominations, it is mandatory to indicate a salary that is at least equal to the TSMIT. For the Employer Sponsored Program, the salary must also be equivalent to the Annual Market Salary Rate. This is to ensure employers aren’t underpaying or disadvantaging Australians by sponsoring migrant workers.

While this requirement may exclude lower skilled occupations from the program, the Department is able to appropriately consider the following elements of the AMRS, as long as employers provide sufficient and suitable evidence justifying their claims, including:

• What is considered equivalent work
• Where there is no equivalent worker or award/agreement, employers must provide evidence of how they determined the AMSR
• What counts as guaranteed monetary earnings for an actual or theoretical equivalent Australian worker
• Allowing the AMSR to include non-monetary benefits
  

This does not mean migrant workers with the same experience can be paid more than Australian workers in the same position.

Penalties Applied

In May 2023, two IT companies located in Victoria have been penalized a total of $90,750 as a result of investigations conducted by the Australian Border Force (ABF) regarding the misuse of Australia’s visa system. The ABF Sponsor Monitoring Unit in Victoria initiated separate inquiries into these IT firms following various reports to Border Watch and an internal referral from the Department of Home Affairs. 

In one of the cases, allegations emerged concerning the exploitation of foreign workers, which included instances of employee underpayment. Multiple interviews were conducted with individuals who were sponsored by the IT company to work on Temporary Skill Shortage (TSS) visas. 

Subsequently, upon a visit by ABF officers to the company’s offices in Melbourne, the company provided a range of documents, including payslips and employee records. The investigation revealed that the company frequently utilized the TSS visa program. Over a span of six months, a monitoring process was carried out on the company, with particular emphasis on evaluating its adherence to sponsorship obligations.

This evaluation aimed to ensure that sponsored workers received terms and conditions of employment equal to those of Australian workers and that they were employed in their designated skilled roles. ABF officers identified a total of 11 violations in relation to the company’s sponsorship obligations, with nine of these violations involving underpayment of sponsored workers. Such underpayment of foreign workers constitutes a severe breach of obligations, leading to the ABF issuing a civil penalties infringement notice totaling $90,750, along with a formal warning notice.

Key Notes

Upon sponsoring or nominating a foreign worker, you’ll assume a series of continual legal sponsorship duties. It is crucial to fully understand these responsibilities to ensure compliance and prevent potential consequences for your business. 

The Department will conduct compliance checks during your sponsorship period and may continue monitoring even after it concludes. If you’ve received any notices or requests, or if you suspect any breaches of your obligations, it is advisable to seek professional guidance regarding your next course of action.