HR managers and immigration departments should always have sponsorship compliance top of mind. However, it’s especially important at this time of the year when performance reviews, promotions, and internal changes are taking place.
Staying compliant with Australia’s sponsorship regulations for employers ensures that your organisation can continue sponsoring foreign workers and protects employees who are currently in the country on work visas. Here, we’ll review some sponsorship obligations and provide tips on staying compliant with current rules.
Following government rules amidst changes
Change occurs within businesses for many reasons. Maybe you want to reward an employee with a raise for a job well done, or shift someone to a different department where their skills are needed. Or, if you’re in the middle of an expansion, maybe you need to send employees to a new location.
These routine events are usually not problematic. However, sponsored employees are affected by rules that don’t apply to Australian residents. For example, a salary increase or a position switch could trigger a change in a sponsored employee’s visa status. If the change is large enough, it could render their current visa invalid.
Many sponsored employees have been affected by COVID-related changes. Struggling businesses may have had to cut hours or stand down workers, while booming businesses may have given raises or bonuses to excellent employees. Know that these decreases and increases may need to be reported for compliance purposes.
This poses challenges for both businesses and employees to ensure that it is compliant with employment and migration laws. From a business standpoint, a company could be in breach of its sponsorship obligations or visa conditions for implementing changes to its workforce, leading to scrutiny from the government or lose its ability to sponsor future workers due to non-compliance. For employees, the status change could interrupt their progress toward permanent residency, or affect their ability to stay in Australia.
Thankfully, the fair work regulator and the immigration authorities have provided guidelines for businesses and have clear rules about changes that can affect a person’s visa status. To stay compliant, it’s essential to evaluate the impact of any changes and, if necessary, inform the department of any changes before they occur.
Workforce changes that can affect your compliance
Reporting is essential for staying compliant with regulations. If you’re unsure about what to report, err on the side of caution and share any information that you feel is relevant. You must report the following changes to the immigration department within 28 days to remain compliant:
- Changes to information in the sponsor’s application
- Failure to participate in activities related to a sponsor’s visa
- Payment of return travel costs
- Changes to formal arrangements
- Changes to staff exchange agreements
- Alterations to a business’ licensure or if a business ceases to exist
A compliance checklist for Australian businesses
Here are some major items to keep track of in regards to immigration compliance:
- Maintain records of immigration status for all employees
- Track 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
- Maintain copies of notifications made to the Department notifying changes to the business or employment of sponsored visa holders
- Make sure sponsored workers continue to be paid the nominated earnings states on their visa and at the current market salary rate. Market salary rate should be calculated based on the salary of an equivalent Australian worker within the business, and if no equivalent worker is available, then benchmarked at external market rates.
- Keep records of return travel costs paid to sponsored visa holders and notifications made to the Department of Home Affairs
- Ensure contracts with recruiters and suppliers address immigration compliance
You can find the specific rules, including notification timelines, for visa compliance here.
Understanding the consequences of non-compliance
The immigration department can take several routes of discipline if companies don’t meet their sponsorship obligations.
- Administrative sanctions
You may be barred from sponsoring visa holders for a certain period of time or disapproved for sponsorship applications. The department can also cancel all of your existing sponsorships if the violations are significant enough.
- Enforceable undertaking
The department has the power of enforceable undertaking. What this means is that they can require companies to provide a promise in writing that they’ll take specific actions to comply with visa obligations and to fix certain failures. The department will then enforce the terms that have been agreed upon.
- Fines
Immigration officials can levy fines for non-compliance. Costs can be as high as $1332 AUD for individuals and $6660 AUD for companies on the first offence. For subsequent offences, the amount rises to $2664 AUD for individuals and $13,320 AUD for companies.
Additionally, they can compel companies to appear in court and impose civil penalties. The limits on these are $13,320 AUD per violation for an individual and $66,000 AUD for a company.
Sub-header: Other items sponsorship compliance requirements to watch out for
Finally, the government can impose other sanctions for a variety of conditions, including:
- Providing false or misleading information
- No longer meeting the standards for sponsorship
- Lawbreaking by the company
- Lawbreaking by the sponsored individual
These enforcement actions may sound daunting, but with some research, planning, and proactive measures, you can avoid significant issues.
It’s also worth noting that many employers are unaware that things completelyly unrelated to immigration constitute “adverse information” that must be reported when applying for future visas. Examples include an employment law claim from an employee, a fair work infringement, a consumer complaint to the fair trading tribunal, or a deletion or change in any other law.
Protecting your company and your employees
Staying compliant with all the rules can be challenging simply because there are grey areas. While all the conditions are spelt out, you may have questions about your specific situation. The good news is that with some guidance, you won’t have to worry about non-compliance.
The Migration Agency can assist with verifying that you’re following all state and national regulations regarding sponsorship compliance. We provide peace of mind to companies of all sizes through compliance consulting and assistance. Get started with our free compliance self-audit, simply reach out to us for it or if you need further assistance. Contact us today.
