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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Australia to commence consultations for the new 5-year temporary Parent Visa

The Australian Government has announced that community consultations are about to commence to develop a continuous 5-year temporary visa for parents of Australian citizens or permanent residents. The visa, which the Coalition had promised during the election campaign in June, is set to take effect on July 1, 2017.

At present parents of Australian citizens or permanent residents can apply for a 5-year visitor visa but can only spend up to 12 months in the country in any 18-month period and the visa is offered on a case-by-case basis to applicants who have lodged a concurrent permanent parental visa application. Otherwise the visa is for a 12-month period only.

The announcement comes after the Productivity Commission released a report that suggested supporting parents of immigrants cost the country too much at between $2.6 billion and $3.2 billion over their lifetimes.

The commission recommended an overhaul of the visa scheme, proposing among other changes that families of non-contributing parents paid for private health insurance and provided financial guarantee so they would not be a burden to the Australian government.

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Visa consequences of Turkish failed coup

The failed coup in Turkey will carry significant consequences for Turkish visa applicants.

 

On one side, Turkish citizens in Australia who claim to be opponents of the government will now have a chance to lodge protection visa applications on the basis that they will face persecution if they return to Turkey. Similarly, Turkish citizens seeking Condition 8503 waivers and Schedule 3 waivers (in respect of onshore partner visa applications) will be able to rely on the uncertain political situation in Turkey to have greater chances of success.

 

On the other, Turkish citizens in Turkey will possibly face increased difficulties when lodging student as well as visitor visas since the Department is likely to use the unstable situation in Turkey as a ground to refuse the said applications.

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Brexit impacts for Australians/Brits

The result of the recent referendum in Britain has opened a fundamental crack in the Western world. However this does not impact much on Australians with British passports. Living and working in Britain will be as easy as it was before Brexit for those with UK passports and ancestry visas — nothing will change. Additionally, those wanting to travel to Europe on holiday will still be able to because Aussies and Brits are able to visit much of continental Europe without visas in the first place, so crossing borders will still be relatively easy.

 

On the other hand, Australian holiday makers who need to visit the UK or the EU may need to get an extra stamp in their passport when visiting. Currently Australian holiday-makers don’t require a visa for entry to either the EU or the UK, and can travel relatively freely between countries after being processed at one entry point. Any changes will depend on how tightly the UK secures its borders in the wake of the decision to separate from the EU.

 

No fewer Australians are expected to travel to the UK and Europe as a result of the Brexit result. It could even trigger an increase in visitors because of exchange rate fluctuations expected to favour the Australian dollar. But on the downside, longer customs queues are expected at major airports like Heathrow because EU residents may have to be processed like Americans and other international travellers. They are currently sent through a separate line without any restrictions. Heading in the other direction, there is a risk a possible recession in Britain and the pound’s plunge could shrink the number of visitors to long-haul destinations like Australia. The UK is currently our third biggest source of overseas visitors so of great importance to the Australian economy.

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Use of Labour Agreements – 457 Visas

Standard 457 applications involve the sponsoring employer nominating an occupation contained on a list known as the Consolidated Skills Occupation List (CSOL).

It sometimes occurs that a sponsor wishes to nominate an occupation which is not listed on the CSOL, in which case the standard 457 programme is not appropriate.

In situations such as this, the business may wish to give consideration to applying for 457 visas under what is known as a Labour Agreement. These agreements can be utilised in respect of skilled and semi skilled positions if it can be shown that there is a clear lack of available employees in the local labour market. For example, many abattoirs bring meat workers into Australia under Labour Agreements as there is a big shortage of people with the necessary skills to properly bone and slice meat.

The starting point in applying for approval of a Labour Agreement is to be able to demonstrate that there is a skills shortage in the relevant industry. It is also necessary to show what efforts have been taken to obtain suitably qualified persons and what training programs the employer has in place should such persons be found. It is also often necessary to enlist the support of peak body groups or unions where appropriate.

In the past there has been some reluctance on the part of employers to seek to enter into Labour Agreements – probably largely due to the perception that negotiating with a government department is a difficult thing to do. While there may be some truth in that, the department does make it clear that it is open to consider applications, and usually a well-documented case can be finalised within 80 days and even sooner, if urgent.

Nevett Ford lawyers has experience with preparation of labour agreements and would be happy to assist employers who may wish to investigate this option.

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Visa Requirements to be Eased for Skilled Foreign Workers

The Abbott government has new plans to ease elements which they have described to be ”unnecessarily restrictive” for the skilled foreign worker visa scheme. This includes strict English language proficiency rules which have been the cause of a number of applicants’ failure to be granted a visa in the first place.

It is in the opinion of the Greens, Labor, and the unions that what the Abbott government is actually doing is making life much harder for Australian job seekers, especially when it shows the country’s unemployment rates have risen. However, the plan was welcomed by major business groups, saying that the proposal was ”balanced.”

Mr. Scott Morrison, the minister for the Department of Immigration and Border Protection, has shown his support for some of the outlined recommendations enumerated in a 457 visa program report commissioned by the government.

The minister played down the likelihood of moving quickly to get rid of the labour market testing, and that he suggested there are other, far less controversial suggestions which were going to get the support of the Senate.

Labour market testing was legislated by the former government of then Prime Minister Julia Gillard, and it requires the potential employers of individuals under the 457 visa program to show that they tried looking for a candidate from the local labour market to make sure that Australians had the opportunity first and foremost to get the job, before it is made available to foreign workers.

There was a report published on Wednesday that said the labour market testing which was conducted by employers should be abolished as it did not guarantee reliability and had actually been proven ineffective a number of times in the Australian context.

Mr. Morrison said that the labour market testing regime that was started by the former Gillard government was laborious and was one of the reasons why the program was suffocating with regulation at the unions’ urging. He continued on by saying that he sees himself as a ”realist” and that there were a lot of other recommendations which he could undertake in a far less controversial manner.

The review had twenty two recommendations all in all, and it also included there be changes done to the English language requirements for the applicants of the 457 visa program.

It was suggested in the report that the requirement be shifted to an average of at least 5, instead of necessitating visa applicants to get a score of 5 in all of the four tests which comprise of the following: Listening, speaking, reading, and writing.

The report was also calling for greater flexibility to the businesses or industries that are asking for concessions to the English language requirement on a case to case basis.  The Immigration minister is all for changes to be made in this area.”The English language requirements are unnecessarily restrictive, serving more as an industrial lock-out rather than an honest attempt to ensure appropriate language skills which the government does believe is important,” said Mr. Morrison on a speech to the National Press Club in Canberra. ”There are more practical ways to achieve what is needed here and moving to an averaging system would remove much unnecessary cost and complexity.”
He was also in support of a recommendation to make adjustments on salary rate rules in the market.
These rules will be placed to make sure 457 visa holders receive the same pay and the same conditions of employment as Australians who are doing the same kind of work. However, employers are exempted from showing market rates for job positions that have a salary of two hundred fifty thousand dollars per year.

In the report, it said that the market rate should still be one of the core components of the 457 visa program however, the threshold of earnings for the exemption needs to be reduced to the same level that was applied prior to the year 2013.

”I support the continuation of the market rate framework, but will, in line with the recommendations of the review, look favourably on introducing a deregulation measure that brings the income bar for exemption from market rate assessment in line with the top marginal tax rate of one hundred eighty thousand dollars,” Mr. Morrison said. ”I am also attracted to the proposals that support trusted legitimate sponsors & help them manage their compliance & reporting obligations more effectively, whilst making it more difficult for those with dishonest intent to make fraudulent application.”
The minister also went on to say that he agrees with the fact that the process of sponsorship renewal needs to be made more simple. He also thinks that reporting time frames need to be extended, and the legislation be brought forward to make it illegal for visa applicants to pay sponsors for a migration outcome. He believes that it needs to be reinforced by a heavy penalty and a framework of conviction.

According Mr. Bill Shorten, the leader of Opposition, unemployment is now at a twelve-year high in the country, which is similar to the unemployment rate in the United States.
”I think the government needs to carefully consider whether or not it wants to make it easier to bring in 457 visa holders at a time when Australians can’t find jobs,” stated Mr. Shorten.

According to Mr. Marles, the Immigration spokesman to Labor, the plans to lower down the English language requirements is ”extremely alarming” and could potentially harm safety in the workplace as overseas workers will be left ”at risk of being exploited by dodgy employers.”
Mr. Adam Bandt, the deputy leader of the Greens, stated that his party is going to ”strongly fight any move to remove the need to advertise locally.”

”If employers do not even have to look for workers locally first, the 457 visa program will turn back into a pool of cheap labour from overseas,” Mr. Bandt said. ”Benefitting some employers at the expense of workers and the long-term skills base of the country.”

Ms. Ged Kearney, the president of the Australian Council of Trade Unions, said it would be completely ”ludicrous” if the labour market testing was abolished.
”Unemployment is at a twelve-year high,” she said. ”Yet, instead of creating a plan for jobs & investing in skills & training, the answer from the government & big businesses is to make it easier for employers to bring in foreign workers.”

Australian Mines and Metal Association (or AMMA), a resource industry employer group, has expressed their support in ”more practical & effective” standards when it comes to English language testing and lowering the comparison in the market salary rate.
”Clearly employers should not be burdened with onerous salary comparison requirements for high-income earners being paid more than one hundred eighty thousand dollars per year,” said Mr. Steve Knott, the chief executive of AMMA.
However, it is being argued by the Australian Chamber of Commerce and Industry that the labour market testing was ”red tape” as there were a lot of employers who are already aware of their local labour market’s strengths and weaknesses even before all of these issues have been thrown into the spotlight.

The report was conducted by a panel of 4 members, and was also led by Mr. John Azarias, a former public servant.

The review was commissioned by Sen. Michaelia Cash, the assistant minister of the Department of Immigration and Border Protection (DIBP). She said that the panel led by Mr. Azarias had consulted with one hundred fifty organisations from different stakeholder groups that comprised of unions, employers, and individuals concerned.

“Notably the independent panel found no evidence to back the claims made by the previous Labor government of widespread rorting of the program,” Senator Cash stated when asked about the issue on Wednesday. “The government will announce a detailed response to the report shortly.”

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