AUSTRALIA – Update on Sponsorship Obligations and Redundancies
The Department of Immigration and Citizenship (DIAC) has recently announced updated amendments to the sponsorship obligations, with regard to record keeping requirements for return travel costs and equivalent terms and conditions. Separately, this alert seeks to clarify the situation around staff redundancies and sponsorship of visas.
Return Travel Costs
What is the Return Travel Cost Obligation?
If 457 visa holders request for payment of return travel costs in writing, the Business Sponsor employer must provide an economy class ticket (or cost of) to the home country and transfers to and from airports for the overseas employee (and any secondary visa holders) within 30 days of receiving this written request. The employer (or its authorised representative) must notify the DIAC within 10 business days of making this payment, and records must be kept. This obligation ceases only if the 457 visa holder changes status, or transfers to another employer, or has already left Australia.
The new announcement from the DIAC provides very specific instructions on how records of meeting the return travel costs obligation should be kept, as follows: Regulation 2.82(3)(a) applies to standard business sponsors, religious worker sponsors, special program sponsors or a party to a work agreement and requires that the person must keep the following records:
- the written request for payment of return travel
- a record of when the request was received and
- a record of how the sponsor complied with the request (including the costs paid, who the costs were paid for and the date of payment which is maintained in a manner that is capable of being verified by an independent person).The Department considers an independent person is a person who is free from influence or authority of the sponsor, who can establish the correctness of a record on the basis of the presented facts.
All of the records must be kept in a reproducible format. No record needs to be kept for more than five years.
Equivalent Terms and Conditions of Employment
What Is the Equivalent Terms and Conditions of Employment Obligation?
Business sponsors are required to ensure that terms of conditions of employment provided to sponsored workers are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same location.
The new announcement from the DIAC provides very specific instructions on how records of meeting the return travel costs obligation should be kept, as follows: Regulation 2.82(3)(c) applies to standard business sponsors or a party to a work agreement and requires that the person must keep:
- a record of money paid to the primary sponsored person
- a record of the money applied or dealt with in any way on the primary sponsored person's behalf or as the sponsored person directed
- a record of agreed non-monetary benefits provided to the primary sponsored person including the agreed value and the time at which, or the period over which, those benefits were provided
- a record of terms and conditions of employment of equivalent workers within the workplace
- a record of tasks performed by the primary sponsored person and the location(s) where the tasks were performed
- if a party to a work agreement, the sponsor must keep records specified in the work agreement.
The Department's position is that cash payments are generally not capable of being verified by an independent person. If a sponsor chooses to pay sponsored persons in cash, the onus is on the sponsor to ensure that they keep records of such payments. To avoid any doubt, sponsors are strongly encouraged to use salary payment methods such as Electronic Funds Transfers.
Redundancies under Employer Nomination
DIAC are currently writing to employers who have made staff redundant asking them to explain the reason behind their sponsorship for permanent residency. Visa Executive, Peregrine’s partner in Australia, would like to quash rumours that any company who makes staff redundant will receive these letters, as this is not correct. Please note that DIAC source their information regarding redundancies through researching the media and information from unions.
- Note the new required formats for keeping records of meeting return travel cost and equivalent terms and conditions obligations
- If your company has made or plans to make large numbers of redundancies and is also sponsoring for permanent residence, please contact Peregrine or Visa Executive directly, and we will discuss the details with you and assist in preparation of an appropriate submission to be included in the permanent residence application.