The Government has released its draft employer obligations for employers of 457 visa holders, which underpin the broad monitoring and sanction provisions contained in the new
Worker Protection Act 2008 (the
Act) (as discussed in our update
Tougher requirements foreshadowed for employers of overseas workers). The draft obligations pick up some, but not all, of the recommendations contained in the
Deegan Report which recommended widespread changes to the 457 visa program. Importantly, the draft obligations do not include the recommendations of the Deegan Report that sponsors pay health care costs or school fees for their sponsored employees and their families.
The draft obligations, which will apply retrospectively to existing as well as new sponsors, require sponsors of overseas workers under the 457 visa arrangements to:
- pay a minimum salary to sponsored 457 visa holder employees, which the Government has indicated is likely to be based on the market rate paid to Australian workers employed in similar positions;
- pay return travel costs or costs incurred by the Government for the location and removal of sponsored 457 visa holders and all accompanying family members;
- keep certain records and provide information; and
- co-operate with Inspectors appointed under the Act.
Payment of market rate minimum salary
Responding to the current economic climate, Minister for Immigration and Citizenship, Senator Chris Evans stated that the 457 visa arrangements are "not to be used to employ overseas workers at the expense of local labour."
It is unclear how market rates will be set and at what levels, but "paying market rates for subclass 457 visa holders will effectively make them a more expensive option for employers," Senator Evans said.
The Deegan Report made some recommendations on how market rates might be set but it is unclear whether these recommendations will be adopted.
Payment of return travel costs or costs incurred by the Government
Sponsors will be required to pay the travel costs of 457 visa holder employees and any accompanying family members if the costs are reasonable and necessary, and if:
- the request is made by the 457 employee or any accompanying family member while they continue to hold a 457 visa;
- the request is made in writing; and
- the travel is to be undertaken within a reasonable period.
Costs would need to be paid within 30 days of receiving the written request and be for travel at economy class or equivalent to the country from which they came. The obligation to pay costs ceases 30 days after the employee or accompanying family member departs Australia permanently, or when the visa holder is granted a further visa, or when a nomination lodged by another sponsor to employ the person is approved.
If return travel costs have not been paid, sponsors can be required to pay costs, up to a limit of $10,000, incurred by the Government to locate and remove sponsored 457 visa holder employees or their accompanying family members.
Record keeping and notification requirements
Sponsors will continue to be required to keep records in relation to their sponsored visa holders and their sponsorship, and to comply with requests for information. Employers should keep records for seven years, after which time their obligation ceases. It is expected that detailed guidelines on what records need to be kept will be made available at a later date.
Sponsors will need to notify the Department of Immigration and Citzenship (DIAC) when certain events occur, such as when a sponsored employee ceases work; if the legal structure or ownership of the sponsoring entity changes; if the sponsor can no longer continue to meet the requirements of sponsorship approval, in particular training Australian staff, and when a sponsor is declared bankrupt, is going into receivership or is being wound up. DIAC must be notified that an employee has ceased work within ten days of cessation.
Obligation to co-operate with inspectors
The draft obligations require sponsors to cooperate with inspectors exercising their powers under the Act. These obligations commence when an employer is approved as a sponsor, and cease five years after the day an employer ceases to be a sponsor.
Sanctions
The Act makes provision for cancelling an employer's sponsorship status or barring an employer from accessing the 457 visa provisions for a period of time, where the sponsor has failed to meet one or more of their obligations. The draft obligations expand the circumstances in which a sponsor can be barred or cancelled to include:
- the provision of false or misleading information;
- where the sponsor has contravened a Commonwealth, State or Territory law, including where an employee has been found to work in contravention of a law requiring them to be licensed, registered or have membership in order to carry out their work;
- where the sponsor has recovered or sought to recover costs from a 457 sponsored employee or any accompanying family members in relation to some or all of the costs of recruitment or costs associated with obtaining sponsorship, nomination or visa approval; and
- where a sponsored employee has been working in an occupation other than the nominated occupation for which their visa was granted.
Conclusion
A panel of industry, union and state government representatives will consider the draft obligations and report back to Government, and further detail and refinements can be expected. The timing of the introduction of the new obligations remains uncertain.
Hall & Wilcox's
Migration Services team offer strategic advice and practical assistance by registered migration agents. We provide advice and assistance with temporary and permanent visa applications for work, training or other purposes; develop risk strategies to ensure compliance with sponsorship obligations and immigration laws; and formulate appropriate HR policies and employment contracts for expatriate employees.