Employing temporary skilled workers in Australia can provide businesses with access to a diverse talent pool and specialised skills that may not be readily available locally. However, it also involves navigating a complex landscape of immigration laws and regulations. Employers must be aware of their obligations and the criteria that need to be met to ensure compliance and avoid penalties. Let me outline key considerations and obligations for employers hiring temporary skilled workers in Australia.
1. Understanding Visa Types
Australia offers several visa options for employing overseas workers, each with specific requirements and obligations. The most common employer-sponsored visas include:
- Temporary Skill Shortage (TSS) Visa (Subclass 482): Allows employers to address labour shortages by bringing in skilled workers for up to four years.
- Employer Nomination Scheme (ENS) Visa (Subclass 186): Provides a pathway to permanent residency for skilled workers who their employer nominates
- Skilled Employer Sponsored Regional (Subclass 494): Similar to the 482 visa but specifically for employers in regional Australia
2. Sponsorship Obligations
Employers must become approved sponsors to employ foreign workers on a sponsored visa. This involves:
- Sponsorship Application: Employers must apply to become a Standard Business Sponsor (SBS) and demonstrate that their business is legally established and actively operating.
- Training Obligations: Employers must contribute to Australian training by meeting the Skilling Australians Fund (SAF) levy requirements.
- Compliance with Sponsorship Obligations: Sponsors must adhere to various obligations, including ensuring equivalent terms and conditions of employment, keeping records, and reporting certain events to the Department of Home Affairs.
3. Criteria for Sponsoring Foreign Workers
Employers must ensure that the overseas workers they sponsor meet specific criteria:
- Skills and Qualifications: The overseas worker must possess the necessary skills and qualifications for the nominated position, which must be on the relevant Skilled Occupation List.
- English Proficiency: The worker must demonstrate a sufficient level of English proficiency, typically through a standardised test.
- Health and Character Requirements: The worker must meet health and character requirements, including medical examinations and police checks.
4. Monitoring and Reporting
Employers have ongoing obligations to monitor and report on the employment of ALL temporary skilled workers:
- Record-Keeping: Maintaining accurate and up-to-date records of ALL overseas temporary skilled worker’s employment, including pay slips, job descriptions, and work hours.
- Reporting Changes: Notify the Department of Home Affairs of any significant changes, such as the sponsored temporary visa holder leaving employment or changes in business ownership.
- Compliance Audits: Being prepared for potential compliance audits conducted by the Department of Home Affairs to ensure adherence to sponsorship obligations.
5. The Migration Amendment (Strengthening Employer Compliance) Bill
The Bill extends employer obligations beyond their sponsored temporary workers to encompass all overseas temporary workers. This includes individuals, for example, working holiday visas, student visas, and graduate student visas.
Under this Bill, employers are required to ensure compliance with Australian workplace laws for all these visa holders, not just those they have directly sponsored. The legislation aims to enhance protections for a broader range of temporary workers, ensuring they receive fair treatment and proper working conditions. By broadening the scope of employer responsibilities, the bill seeks to strengthen the integrity of the Australian immigration system and safeguard the rights of temporary overseas workers.
6. Consequences of Non-Compliance
Failure to comply with immigration laws and sponsorship obligations can result in severe penalties, including:
- Fines and Sanctions: Financial penalties for non-compliance, which can be substantial.
- Cancellation of Sponsorship: Loss of sponsorship approval, preventing the employer from hiring foreign workers in the future.
- Reputational Damage: Negative impact on the business’s reputation, which can affect relationships with clients, employees, and regulatory bodies.
7. Avoiding the Penalties
The only way to avoid these penalties is to take ‘reasonable steps’ at ‘reasonable times’ to check visas.
Just doing a one-off VEVO check before employment is not sufficient because an employee’s visa status can change after employment commences.
For instance, a working holiday maker can work full time for 6 months with an employer, but if they change to a student visa, they can only work for 48 hours per fortnight. Unless visa checks are done at regular intervals, throughout the employee lifecycle, the employer may unwittingly be in breach of the legislation.
8. How We Can Help
Migration Downunder have partnered with the leading compliance technology provider to be able to offer a Work Rights Check that goes beyond the standard VEVO Check. If any issues arise, our team can quickly identify solutions, mitigating and minimising risk to the company.
If you’d like to know more about this new technology that we can offer you, please get in touch with one of our experienced Registered Migration Agents.
Conclusion
Employing foreign workers in Australia offers numerous benefits but comes with significant responsibilities. Employers must understand and comply with the legal requirements, ensure that sponsored workers meet the necessary criteria, and adhere to ongoing obligations to maintain their sponsorship status. By doing so, employers can effectively leverage the skills and talents of overseas skilled workers while contributing to a compliant and fair labour market.
For more information, sign up for the upcoming webinar on Employer Compliance hosted by Senior Migration Agent Katrin Hodder.
