The Australian government places the responsibility for immigration compliance on employers and sponsoring organisations.
This responsibility arises in the following ways:
- Having to ensure and being able to prove that workers or contractors have appropriate work rights and are working in accordance with any visa work conditions. This involves making certain a person is not working for you:
- while they are unlawfully in Australia;
- when they are lawfully in Australia, but have no work rights; or
- in a manner inconsistent with restrictions attaching to their visa.
- Having to comply with obligations arising under sponsorship agreements, including: standard business; accredited; temporary activities and training; and labour agreements. There are a range of obligations that cover areas such as:
- record keeping
- providing records and information to the Department when requested
- reporting to the Department when certain events occur
- ensuring sponsored persons are paid in accordance with the approved nomination
- ensuring sponsored persons work, train or undertake the approved occupation, program or activity
- assuming and paying for certain costs and expenses associated with the application process
- paying the travel costs of certain sponsored employees
Failure to comply with these responsibilities, may give rise to:
- An offence, which could lead to warnings, infringement notices, significant monetary penalties, and in serious cases imprisonment; or
- “Adverse information” that may affect the capacity of the employer to sponsor or nominate workers for visas; or
- Other sanctions such as a bar on sponsorship for a period of time, or cancellation of sponsorship agreements or Labour Agreements and associated sponsored visas.
Non compliance may also lead to reputational damage, especially as the government has the power to “name and shame” transgressors.
This is a complex area of law and the requirements are strict. Preventing non-compliance may seem like a daunting responsibility. Although it is not possible for employers to “contract out of” or avoid the application of these responsibilities, nevertheless, one can put in place effective measures and processes to make this more manageable and identify and minimise risk. Separately, where a breach has occurred, it is necessary to consider and implement a strategy on how to address the breach.
How we can assist
We offer comprehensive support in the area of compliance, including advising on:
- The operation of sponsorship obligations, visa conditions and other work restrictions
- How to identify and manage risk
- Robust policies and processes toward ensuring compliance within workplaces, including the provision of assistance with implementation
- How to create effective compliance systems and conduct self “health” checks
- Documentation, including employment agreements, to align with obligations
- Maintaining adequate records
- Notification requirements
- Managing and responding to audits
- How to respond to claims by the Department involving breaches of immigrations laws and/or sponsorship obligations
- The necessary steps to be followed in circumstances where there has been a failure to comply with sponsorship obligations and other immigration laws
- Systems to allow the tracking of visa expiry dates
We also provide tailored workshops and client centred training for human resource teams.
To discuss how we can assist you with immigration compliance for your organisation, please click here to contact Visa Lawyers Australia