For large corporations employing sponsored visa holders, navigating the complex web of sponsorship obligations is not just good practice – it is a legal imperative. Breaches can lead to significant penalties, reputational damage, and disruption to your talent pipeline.
This is not just about compliance- it is about robust risk management and maintaining your social license to operate.
The Foundation: Migration Act & Regulations
Your obligations stem primarily from Australia’s Migration Act 1958 and, in much greater detail, the Migration Regulations 1994. Specifically, Part 2A, Division 2.19 of the Regulations outlines the day-to-day requirements for approved sponsors.
Key Obligations Your HR Team MUST Master:
While the list is extensive, here are critical areas for HR focus:
- Equivalent Terms & Conditions (Reg. 2.79): Always ensure your sponsored employees are paid at or above the Australian market rate for their role. Underpaying is a major breach.
- Record Keeping (Reg. 2.82): Maintain meticulous records (payroll, employment contracts, notifications, termination of employment) for at least 5 years. If it is not documented, it did not happen in the eyes of the Department of Home Affairs (the ‘Department’).
- Notification of Changes (Reg. 2.84): This is where many large corporations fall short. You have a strict 28-day window to notify the Department of key events, including:
- Cessation of employment for a sponsored worker.
- Changes to the sponsored worker’s duties or location.
- Changes to the legal name or structure of your business.
- Significant adverse information about the sponsored person.
- No Cost Recovery (Reg. 2.87): You cannot pass on nomination or sponsorship costs to your sponsored employees. This includes visa application fees.
- Cooperation with Inspectors (Reg. 2.78): Be prepared to provide access to premises and records if requested by a departmental inspector.
Why HR Needs to Be Proactive:
The Department of Home Affairs and the Fair Work Ombudsman (FWO), supported by the Australian Border Force (ABF), utilise an integrated, data-driven compliance network and joint field operations to actively monitor and enforce sponsorship obligations. By leveraging real-time ATO payroll integration, these relevant government authorities can identify discrepancies in salary and occupation instantly. Accordingly, having a strong internal checking system is now essential for every company
The Cost of Non-Compliance:
- Financial Penalties: Civil penalties can reach over $79,000 per breach for corporations.
- Sponsorship Sanctions: Your company could be barred from sponsoring new visa holders for a period or have its existing sponsorship cancelled.
- Reputational Damage: Negative publicity can severely impact your employer brand and ability to attract global talent.
Key Takeaway for HR:
Treat sponsorship obligations with the same diligence as WHS or privacy laws. Implement robust internal processes, conduct regular internal audits, and ensure your HR team is thoroughly trained and up-to-date.
Need Assistance?
Navigating these complex regulations requires specialist knowledge. Our migration team at Nevett Ford can help your organisation develop compliant frameworks, conduct audits, and respond to departmental queries.
+++++++
Reference/Internet Source – YDP
Migration Act 1958 (Cth)
*Notes. Civil Penalties –
- S 140Q of the Migration Act – 240 penalty unit
- S 4AA of the Crimes Act 1914 – “penalty unit” means the amount of $330
- https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca191482/s4aa.html
Migration Regulations 1994 (Cth)
ATO website
FWO Website
