HR Daily - Webinar with Michael Walker and John Unger - 30 March 2017
Written By John Unger | Thu, Mar 30, 2017
Michael Walker and John Unger from TSS recently appeared on a webinar for HR Daily, assisting their subscribers with issues around compliance and obligations required for Australian visa sponsorship.
HR Daily also published an article following up on key points made by Michael and John, which can be read in full below.
Misunderstood obligations put sponsoring rights in jeopardy
The obligation to pay return travel costs for sponsored overseas workers is an “unusual” one that continues to trip up many employers, specialist advisors say.
TSS Immigration director John Unger and visa services manager Michael Walker tell an HR Daily Premium webcast this is a commonly misunderstood requirement with the potential to put an organisation’s ability to sponsor at risk.
“If you’re in a global company where people are coming and going from your Melbourne office, your London office, your Zurich office, you’re probably familiar with bringing people on assignment,” Unger says.
These employers expect to pay for their workers to relocate and return to their home countries at the end of the assignment, but often wrongly assume that when they sponsor someone on a 457 visa, for example after originally employing them as a working holiday maker, the obligation disappears.
The Department of Immigration’s view is that the employer is responsible for that sponsored employee remaining in the country, so if the employer dismisses them, then it’s potentially responsible for the cost of getting them home as well, Unger says.
“This is a very unusual kind of obligation,” he notes. “It’s sitting there on the books, but it must actually be activated by the person themselves and they have to activate it in writing… in a certain manner.”
The liability is to pay “reasonable necessary” costs for returning the person to their home country, and the employer must keep records about any payments they’ve made, he adds.
“It’s an obligation you may not always be thinking about; it may only be a hypothetical obligation, but it’s important to be aware of it.”
Another risk is that if an employer has sponsored someone, brought them to Australia, and they “go AWOL” Immigration could potentially ask the organisation to pay the costs of locating and removing that person, Unger says.
Taking the initiative to notify the Department immediately will, however, go a long way.
“If you’ve taken steps to notify the Department that person has absconded, from our experience, the likelihood of them asking you to pay that sort of cost is low,” Unger says, adding that diligence in notifying the Department of other changes, such a change in occupation, is also crucial.
A further commonly misunderstood sponsorship requirement is the obligation not to recover costs from a sponsored employee, Unger says, noting that as of December 2015 this type of breach can attract civil and criminal penalties, or result in sanctions and visa cancellation.
On the topic of audits, Walker and Unger say organisations can determine whether they are in “reactive mode” and unprepared for a Border Force visit by asking when they last conducted an internal audit.
If a specific event, change or third party was the trigger, it might be time to organise a proactive one, they say, noting that it’s far easier to keep paperwork up-to-date than to revisit it months or years later for an audit.
Outsourcing increases risks
Outsourcing an organisation’s immigration function to an external party often makes commercial sense, but complete delegation is risky, Walker and Unger say, and employers should always play a part in ensuring compliance.
Immigration is a “rule-based discipline”, and in order to meet business objectives and ensure legal compliance, employers should understand the rules for themselves.
This is an area where strict liability applies, and a breach can attract penalties of up to $108,000 per illegal worker, civil penalties of up to $43,200 for responsible individuals, and hefty criminal penalties for individuals (up to $64,800 and/or imprisonment) and corporations ($324,000 for each conviction).
The risk of losing the right to sponsor overseas workers in the future could also have a serious impact on a business, particularly where these employees form a significant percentage of the workforce.
“When you apply to be approved as a sponsor, you make declarations you will adhere to certain legally enforceable obligations. Those obligations are enforceable under what’s called ‘strict liability’ so inadvertent mistakes or ignorance is not necessarily a defence under the law,” Walker says.
“We appreciate that you may outsource the immigration function to immigration firms, but appreciate that it is risky to rely entirely on an external migration agent to ensure compliance,” Unger adds.
It follows that HR departments should at least be aware of their legal obligations, and have enough knowledge to “manage” their migration agent and be confident their advice and work is sound.
One of our migration agents will be in contact as soon as possible.