The contents of this article are correct as at 23 February 2009
The Minister for Immigration, the Hon. Chris Evans, has released draft amendments to the Migration Regulations which significantly affect the obligations owed by 457 temporary business visa sponsors to their employees and DIAC.
The draft amendments propose increased and onerous sponsor obligations and would operate in conjunction with the Migration Legislation Amendment (Worker Protection) Act 2008.
As summary of these changes are as follows:
- Sponsors must co-operate with workplace inspectors who may inspect businesses up to five years after the sponsorship agreement has ceased.
- Sponsors must pay a minimum salary level to a primary sponsored person 457 visa holder. A future legislative instrument will specify how this will be determined and paid.
- Sponsors must now pay any costs incurred by the Commonwealth Government in locating a primary or secondary sponsored person, and/or removing the primary or secondary sponsored person from Australia.
- Sponsors must also keep records of a kind to be specified in a future legislative instrument, in an auditable and reproducible format for up to seven years. These records and further information must be provided to the Minister upon request and sponsors now have a five year long obligation to provide information to DIAC within 10 days when certain events occur, such as, but not limited to, the cessation of a sponsored employee or the change of business ownership.
- Enforcement of sponsor obligations can involve the barring of sponsors, the cancellation of a sponsorship and administrative sanctions or pecuniary penalties of up to $33 000.
Significantly the draft Regulations do not outline any health insurance for employers but rather leave such responsibilities to the sponsored employee. This would be a substantial change from the current position, which places the obligation for public health costs on employers.
The draft Regulations are now subject to comment from a panel of industry, union and state government representatives who will provide feedback to government.
The Regulations are expected to come into effect in September 2009. Sponsoring employers should be aware that, while they cannot exclude liability for sponsorship obligations, there are various ways of minimising risk.
We assist sponsors to minimise their potential liability under the 457 sponsorship regime.
If you would like to discuss the legal implications of the current sponsorship obligations as well as the proposed changes, please click here to contact us.