In today’s globalised world, businesses and workers are more mobile than ever before. In Australia, many foreign enterprises that have set up a business locally wish to employ staff from their original, international office. This article details how a French business that has set up operations in Australia can legally bring their French employees to work in Australia.
A business in Australia that wishes to hire French employees will need to apply to the Department of Immigration and Border Protection (‘the Department’) to be able to sponsor them. For their part, the employees will need to apply for the appropriate employer sponsored visa with the Department. The appropriate visa depends on whether the business wishes to sponsor the workers for a temporary or Australian permanent visa.
The relevant temporary visa is the Temporary Work (Skilled) Visa (Subclass 457) (‘457 visa‘).
The business must first become a sponsor. There are two ways to do this:
- Apply to be a Standard Business Sponsor; or
- Negotiate a labour market agreement.
A labour market agreement is a formal arrangement negotiated between an employer and the Australian government. An agreement is only possible where there exists a genuine skills shortage and no suitably skilled or qualified Australian workers. An employer cannot employ workers under an agreement that they merely prefer – there must be a genuine shortage.
More commonly, employers apply to become a Standard Business Sponsor with the Department. A business must meet the specific sponsor obligations for the 457 Visa. In general, sponsors must:
- Ensure comparable terms and conditions of employment;
- Keep adequate records;
- Co-operate with departmental inspectors;
- Provide information to the department when certain events occur;
- Ensure that the sponsored employee works or participates in the nominated occupation, program or activity.
- Pay any necessary travel costs to enable the person to depart Australia;
- Not recover, transfer or take actions to result in another person paying certain costs;
- Pay any costs incurred by the Commonwealth to locate and remove unlawful non-citizens.
It is the employer’s responsibility to meet all of their sponsor obligations, even if they have the assistance of a Registered Migration Agent.
The department continually monitors a business’ compliance and that any sponsored workers observe all of the conditions attached to the 457 Visa. The department also has the right to monitor a business for up to five years after it ceases being a sponsor. Sanctions apply for the failure to meet an obligation. All enterprises also need to be aware that the law now provides new civil and criminal penalties if any person asks for, receives, offers or provides a benefit in exchange for sponsorship or employment requiring sponsorship.
If an employer nominates French employees, that occupation must be on the Consolidated Sponsored Occupations List (CSOL). The employee must also have the requisite skills. They may require a skills assessment.
The employee also needs to apply for the 457 Visa. On this visa, French employees can work in Australia for up to four years, bring their family with them to work or study and travel in and out of Australia without restriction. As with any visa, they must meet the Character and Health Requirements. They will need adequate health insurance and to observe all its conditions. The employer and employee can lodge their applications online at the same time. Sponsoring an employee costs $420. The visa itself costs $1060. Any additional applicants aged over eighteen cost an extra $1060; those under eighteen, $265. Visa prices are always subject to change so verify the correct price at the time of application.
There are two appropriate visas:
- Employer Nomination Scheme Visa (subclass 186) (‘186 visa); or
- Regional Sponsored Migration Scheme Visa (subclass 187) (‘187 visa’).
An 187 visa is only available if the employee is nominated to work in an approved regional area. Unless your business is in such an area, you must sponsor an employee for an 186 visa.
All sponsors must meet the particular requirements for the 186 visa. In general, sponsors must:
- Operate a business in Australia lawfully and actively;
- Have a genuine need for a paid employee to fill a skilled position;
- Pay a market salary rate;
- Offer a skilled position in the applicant’s field that is full-time and ongoing for at least two years; and
- Comply with all Australian workplace and immigration laws.
Also, the Department must not hold any adverse information about your business.
The business must first nominate the employee and then the employee makes an application for the position. Sponsoring an employee for an 186 visa currently costs $540. However, these prices are subject to frequent change.
When an employee applies for the visa, they must apply in one of three streams:
- Direct Entry Stream;
- Temporary Residence Transition Stream; or
- Agreement Stream.
Applicants must apply for the correct stream. The Temporary Residence Transition Stream applies to employees on a 457 visa, who have worked in Australia for two years on that visa in the same occupation where their nominating employer wants to offer them a permanent position in that occupation. The employer cannot be subject to a labour agreement.
The Direct Entry Stream applies for those individuals who never have, or only briefly, worked in Australia. It can also apply to temporary residents who do not qualify for the Temporary Residence Transition Scheme. The Agreement Stream applies for those holding 457 visas sponsored under a labour agreement.
Employees must meet all health and character requirements. These also apply to any family members included in the application. Applicants must have appropriate English Language Skills unless exempt. They must also be aged below 50 unless they qualify for an exemption.
The applicant must have all relevant skills, qualifications, licences and registrations necessary for the position. If an employer nominates them for the Direct Entry Stream, their occupation must be on the CSOL. They will also require a skills assessment.
Applicants must also meet the requirements particular to each different stream and need to lodge their application online within six months of departmental approval of the employer’s nomination
The visa costs $3,600.00. Any additional applicants aged below eighteen require an extra $900; those aged over eighteen cost an extra $1,800.00. Visa prices are subject to change so check the correct price closer to the date of lodgement. Of course, it is possible for a business looking to sponsor French nationals to sponsor them first for a 457 visa and later for an 186 visa.
LegalVision provides qualified and expert advice to business and has helped many businesses. It would be our pleasure to help you. Call LegalVision today on 1300 544 755.
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