Employing foreign workers may be necessary to address labour shortages and skills gaps within your business. However, as an employer who sponsors or nominates foreign workers, you will have several business obligations with which you must comply. Staying aware of your employment obligations is essential, as your business can face various consequences for breaching them. This article will outline the general sponsorship obligations and detail the range of potential consequences that employers can face due to non-compliance.
What are My Sponsorship Obligations?
There are several sponsorship obligations in place that you are legally required to comply with. Most obligations apply generally. However, some may vary depending on:
- the type of business sponsorship; or
- the relevant visas pursued under sponsorship or nomination.
These obligations aim to:
- maintain appropriate working conditions;
- prevent worker exploitation;
- ensure people use visas for their intended purposes; and
- standardise the requirements across all Australian sponsors.
Will My Compliance Be Monitored?
The DOHA monitors sponsorship compliance with the obligations during the sponsorship period and up to five years after the sponsorship period ends. The DOHA may also monitor sponsored employees to ensure they comply with their visa conditions.
Monitoring may be conducted by:
- immigration inspectors;
- Fair Work inspectors; or
- Fair Work Building Industry inspectors with investigative powers under the Migration Act 1958 (Cth).
What Happens if I Breach My Sponsorship Obligations?
The Department will consider a range of information and circumstances when determining what action to take (if any). DOHA may impose sanctions or other consequences on the sponsor if it comes to their attention that:
- the sponsor has not met their obligations;
- the sponsor provides false or misleading information to the DOHA or the Administrative Appeals Tribunal;
- the sponsor no longer meets the criteria for approval as a sponsor or for sponsorship renewal;
- the sponsor has been found by a court or competent authority to have contravened a Commonwealth, state or territory law; and/or
- the sponsored visa holder breaks laws relating to the licensing, registration or membership needed to work in the nominated position.
Consequences of Breaching My Sponsorship Obligations
The DOHA could take one or more of the following actions against the sponsor, depending on the scale and severity of the breach:
- impose an ‘enforceable undertaking’ requiring the signatory to promise, in writing, to undertake specific actions to rectify failures that led to the breach/es and that non-compliance will not happen again;
- publish information, including personal information, identifying the sponsor who has not complied with the sponsorship obligations, including the business ABN, past breaches, and any action taken against the sponsor;
- impose bars preventing further visa sponsorships for a specific period;
- refuse or cancel sponsorship applications and associated approvals/ visas;
- cancel all of the sponsor’s existing sponsorship approvals;
- issue an infringement notice of up to AUD 16,500 for a body corporate and AUD 3,300 for an individual for each failure;
- apply to a court for a civil penalty order of up to AUD 82,500 for a corporation and AUD16,500 for an individual for each failure; and
- commence civil litigation concerning the contraventions if the Department is satisfied that it is in the ‘public interest’.
What Should I Do If I Have Breached My Obligations?
Discussing this with a migration lawyer or agent as soon as possible is important. This is especially so if it regards any monitoring or information requests received from the DOHA, site visits, or possible breaches so that you can obtain tailored advice for taking appropriate actions that could assist in minimising any punitive measures that may be imposed.
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Key Takeaways
Once you sponsor or nominate a foreign worker, you will have several ongoing legal sponsorship obligations to comply with. Therefore, you must be aware of your responsibilities to ensure you comply and avoid the range of consequences that can be imposed or enforced on your business. The Department will monitor compliance throughout your sponsorship and, at times, beyond the term of your sponsorship.
If you have received any notices or requests or suspect you may have breached your obligations, you should seek professional advice on your next steps. If you have any questions or concerns, our experienced immigration lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Breach of your sponsorship obligations can have serious consequences, including enforceable undertakings, penalty orders up to $85,000AUD, publication of information about the business and its breach, refusals/cancellations of sponsorship and associated applications or visas, and bars which can prevent you from sponsoring foreign workers in the future.
Monitoring may be conducted by immigration inspectors, Fair Work inspects or Fair Work Building Industry inspectors.
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