Employer sponsorship obligations
Overview
Approved standard business sponsors have ongoing legal obligations under s 140H of the Migration Act 1958 (Cth) and the Migration Regulations 1994. The obligations begin when the sponsor is approved and continue for the period of sponsorship. Key obligations include paying the sponsored worker at the equivalent rate to an Australian worker, not passing sponsorship costs to the worker, keeping records, cooperating with inspections, and notifying the Department of prescribed events. Breach may result in civil penalties, barring, or cancellation of sponsor approval.
The sponsorship obligations framework is designed to protect both the sponsored worker and Australian workers in the same occupation. The "no transfer of costs" obligation prevents employers from exploiting the sponsored worker's dependence on the employment relationship by charging them for the cost of the visa. The "equivalent terms and conditions" obligation prevents employers from undercutting Australian workers' wages and conditions.
Legal basis
- Section 140H — the obligations of approved sponsors
- Section 140K — sanctions for breach: civil penalties (infringement notices and court orders); barring the sponsor from future sponsorships; cancellation of sponsor approval
- Migration Regulations 1994, regulation 2.79 — the detailed sponsorship obligations (pay obligations, training benchmarks, cooperation, notification)
How it works
Key obligations
1. Equivalent terms and conditions
The sponsored worker must receive terms and conditions of employment that are no less favourable than the terms that would be provided to an Australian citizen or permanent resident performing the same role in the same location. This includes pay, leave entitlements, superannuation, and other conditions.
2. No transfer of sponsorship costs
The sponsor must not seek to recover, directly or indirectly, certain migration-related costs from the sponsored worker. Prohibited transfers include the cost of sponsor approval, nomination fees, and visa application fees paid by the employer on behalf of the worker.
3. Record-keeping
Sponsors must keep specified records relating to the sponsored worker's employment, terms and conditions, and activities. Records must be maintained for at least 4 years and produced to authorised officers on request.
4. Cooperation with inspections
Sponsors must cooperate with authorised officers from the Department (or the Australian Border Force) conducting workplace inspections. Officers may inspect records and premises and ask questions of employees and management.
5. Notification obligations
Sponsors must notify the Department within prescribed time limits of certain events, including:
- The sponsored worker's employment ceases
- The sponsored worker does not commence employment
- There is a change to the business (merger, sale, insolvency)
- The sponsored worker's occupation or location changes
6. Skilling Australians Fund (SAF) levy
Sponsors must pay the Skilling Australians Fund (SAF) levy when lodging a Subclass 482 nomination. The levy replaces the former training benchmark obligations. Small businesses pay $1,200 per year per worker; large businesses pay $1,800 per year per worker.
Monitoring and enforcement
The Australian Border Force (ABF) Sponsor Monitoring function conducts proactive and reactive monitoring of sponsors. Inspections may be triggered by complaints from workers, random selection, or other intelligence. Workers who believe their rights are being breached can make confidential reports to the Department.
Sanctions
- Infringement notice — a financial penalty issued without court proceedings for less serious breaches
- Civil penalty order — court proceedings for more serious breaches; penalties up to hundreds of thousands of dollars
- Barring — prevents the sponsor from having future nominations approved for a specified period
- Cancellation of sponsor approval — revokes the employer's approved sponsor status