Who can become a sponsor (457 visa)?

Who can become a sponsor?

To become a sponsor, you must be able to show that your business:

• is a lawfully operating business
• has no relevant adverse information against your business.

Australian businesses must also demonstrate their commitment to employing local labour as well as non-discriminatory recruitment practices.
There are two ways you can become an approved sponsor:

• Option 1: Apply to be a standard business sponsor
• Option 2: Negotiate a labour agreement.

Option 1: Apply to be a standard business sponsor

The standard business sponsorship arrangement is the most common way to sponsor a skilled worker using the subclass 457 visa program. You must lodge an application to become a standard business sponsor.


You can have only one standard business sponsorship approved at any given time (that is, one sponsorship approval per legal entity) which is usually valid for five years. You can apply to extend your sponsorship at any time during this five-year period by lodging a variation application.


The requirements for approval as a standard business sponsor differ for businesses that are outside and in Australia.


Business in Australia
You must attest, in writing, that you have a strong record of, or a demonstrated commitment to employing local labour. You must also declare that you will not engage in discriminatory recruitment practices.


Make the attestation and the declaration about your workplace record in your sponsorship application form.
You must also meet training requirements. This means you must either:

• meet the training benchmarks if you have traded in Australia for 12 months or more
• have an auditable plan to meet the training benchmarks if you have been trading in Australia for less than 12 months.

Business outside Australia
You must be seeking to employ a skilled worker to either:

• establish, or help establish, a business operation in Australia
• fulfil obligations for a contract in Australia.

If your business does not yet have an operating base in Australia, you are not required to satisfy the training requirement.

Option 2: Negotiate a labour agreement

A labour agreement is a formal arrangement negotiated between an Australian employer and the Australian Government. You might be able to enter into a labour agreement if you are in one of the following situations:

• the occupation of the workers you want to employ is not listed on the Skilled Occupation Lists (Formerly Known as Form 1121i) or theAustralian and New Zealand Standard Classification of Occupations (ANZSCO)
• you are a recruitment company seeking to sponsor skilled workers to be on-hired to another businesses, and the occupations requested are on the Consolidated Sponsored Occupations List (CSOL)
• standard immigration options are not suitable.

You must be able to provide evidence that:

• there is a genuine and systemic shortage of skilled workers
• there are no suitably qualified Australian workers available
• you have a commitment to training Australians.

A labour agreement comes into effect when it has been signed by all parties involved in the negotiations. A labour agreement is typically valid for three years.


How to propose a labour agreement


You need, among other things, to:

• identify the relevant skills shortage in the business and why these vacancies cannot be filled by Australian workers (you need to show you have tried to recruit in Australia)
• specify the number of skilled workers needed from outside Australia
• specify the skill and English language requirements that relate to the nominated occupations. Semi-skilled occupations can be considered provided they are specialised and in demand
• include copies of correspondence showing that relevant stakeholders have been consulted.

You might be able to use a template labour agreement if there is one for your industry or your worker’s occupation. A template labour agreement is a set of standard parameters for similar employers: it does not guarantee an agreement will be approved.


If the template does not suit your needs, you might be able to negotiate an individual agreement.


Labour agreements include a requirement to provide training to Australian employees.
When you have a labour agreement in place, you are an approved sponsor for the term of operation of the agreement. You can then nominate skilled workers from outside Australia under the terms of the labour agreement.


You will also need to meet your sponsorship obligations and any other terms and conditions specified in the agreement.  If you breach the terms and conditions of your agreement, we could suspend or terminate it.


Standard business sponsors

To sponsor a worker as a standard business sponsor, you must:

• be a lawfully operating business
• have no relevant adverse information against your business.

If your business is in Australia, you must also:

• meet training requirements
• demonstrate your commitment to employing local labour
• not engage in discriminatory recruitment practices.

You can use Visa Entitlement Verification Online (VEVO for Organisations) to check the work entitlements of your prospective employees.

A lawfully operating business

You must be a lawfully operating business to apply to be a standard business sponsor. This applies to businesses both in and outside Australia.
To demonstrate this you must show both of the following:

• your business is legally established
• your business is actually operating.

A business that exists only on paper cannot satisfy this sponsorship requirement.
If you do not operate in Australia, you must be able to show that you need a skilled worker to:

• come to Australia to establish, or help establish, a business operation with connections with a business located outside Australia
• fulfil, or help in fulfil, a contractual obligation.

If your business is new, you can still satisfy this requirement if you can provide evidence that your business is in fact operating, even if this has been for only a short period of time.
Examples of the documents you can use to show that your business is legally established and operating are in the Document checklist.


If you operate a business under a trust arrangement you must provide details of the Trust Name and the Trust ABN when you complete the application form.  The application should be made using the name of the Trustee as it appears in the Trust Deed.


Details of the principals of your business such as Owners, Partners, Directors and major Shareholders should be provided when you complete the application form.


Contact us today for more information and assistance.

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VISA UPDATE: Subclass 400 Visa (short term work visa)

You can apply for this visa if you need to enter Australia to undertake one of the following activities:


Highly specialised work

You can apply for this visa to do short-term, highly specialised, non-ongoing work in Australia if you have specialised skills, knowledge or experience that both:

• can assist an Australian business
• cannot reasonably be found in the Australian labour market.
  Highly specialised work is usually work that either:
• is done by people with an occupation listed in Major Groups 1, 2 or 3 of the Australian and New Zealand Standard Classification of Occupations (ANZSCO),
  or
• requires skills and knowledge that are specific to an international company, such as installing imported equipment, after-sales service or emergency repairs

Invited participants

You can apply for this visa if you have been invited by an organisation to participate in a cultural or social event or events on a non-ongoing basis.

The inviting organisation must be both:

• operating lawfully in Australia
• directly responsible for the event or have a formal role in preparing for or conducting it.
• You cannot accept any salary, wages or other remuneration for participating in the event, other than:
• prize money
• appearance fees
• reimbursement for your reasonable expenses of doing the activity
• payments from your non-Australian employer.

You can apply for this visa if you are, for example, a sportsperson participating in specific events or touring as part of a sports team, a public lecturer, an artist, an author or a photographer.

This visa is not intended for business people attending a conference or taking part in meetings or business negotiations. You can apply for a Visitor visa (subclass 600)-Business Visitor stream instead (such as Visitor visa (subclass 600). 

Emergency Workers and Other Exceptional Circumstances

In very limited circumstances, this visa may be granted in Australia’s interest. In these cases, the department needs to be satisfied that the activity identified in the visa application is of national significance.

For example, this visa could be granted to emergency workers to come to Australia after a natural disaster.

NOTE: Your work or activity must be non-ongoing. This means that you can finish the work and activity in three months or less. Do not make arrangements to stay in Australia any longer than that. You also should not agree to being rotated through a position on a short-term basis as one of a number of overseas workers. If the work is ongoing, and even if your contract is less than three months, apply for a Temporary Work (Skilled) visa (subclass 457).

Generally you can stay in Australia for up to three months where required, but depending on your work or activity a longer period of up to six months may be allowed in limited circumstances.

 

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Luxembourg & San Marino to be added to Work and Holiday visa eligible countries for travel to Australia

Two new Memorandums of Understanding have been signed to establish reciprocal Work and Holiday visa arrangements with San Marino and Luxembourg. Each arrangement will allow up to 100 young adults from Australia and the partner country to enjoy a holiday in each other's country, during which they can undertake short term work and study.

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Subclass 457 Visa - Training Benchmark Requirements

As a Subclass 457 Employer Sponsor, the business must meet prescribed training benchmarks. 


The Migration Regulations require that the business must provide clear evidence that there has been, and continues to be, adequate provision for business related training for existing employees (Australian citizens and Australian permanent residents).  This training requirement must be met for at least three (3) years from the date of sponsorship approval, depending on the term of your sponsorship approval (and on the basis that the business continues to employ a subclass 457 visa holder). This policy reflects the government’s intention to ensure that the employment of skilled overseas workers will not prejudice any commitment and investment by the business in providing adequate training to employees who are Australian citizen or permanent residents.

 

TRAINING BENCHMARK REQUIREMENTS

Employers wishing to sponsor under the subclass 457 visa program must demonstrate their contribution and commitment to the training of employees who are Australian citizens and Australian permanent residents is related to the purpose of the business.

 

If your Business Has Been Trading For 12 Months or More

The Sponsor must provide evidence of meeting one of the following training benchmarks:

Ø  Training expenditure to the level of 1% of its payroll of Australian employees for the most recent financial year, OR failing to meet this requirement

Ø  Pay 2% of the payroll to an industry training fund,

 

and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for at least three (3) years, depending on the term of approval of your business sponsorship.

 

HOW THE BUSINESS CAN PROVIDE EVIDENCE

Expenditure that can count towards this benchmark relating to employees who are Australian citizens and Australian permanent residents includes:

 

Ø  Receipts for a formal course of study for employees or for TAFE or University students attending training in the workplace, as part of the organisational training strategy

Ø  Funding a scholarship in a formal course of study approved under the Australian Qualifications Framework or, for TAFE or University students, as part of the organisational training strategy

Ø  Employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business (please provide a copy of Apprenticeship Agreement)

Ø  Employment of a person who trains the business’ Australian employees who are Australian citizens and Australian permanent residents as a key part of their job (please provide evidence of Trainer’s qualifications)

Ø  Evidence of payment of external providers to deliver training for Australian employees

Ø  On-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating:

v  the learning outcomes of the employee at each stage;

v  how the progress of the employee will be monitored and assessed;

v  how the program will provide additional and enhanced skills;

v  the use of qualified trainers to develop the program and set assessments; and

v  the number of people participating and their skill/occupation.

Nevett Ford Lawyers Melbourne can provide advice and assistance with all visa types, including the Subclass 457 visa.

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