Monitoring of Sponsors – Australian Border Force

In our October 2019 newsletter, Ajuria Lawyers reminded business sponsors of the importance of ensuring compliance with sponsorship obligations.

The Sponsorship Monitoring Unit of the Australian Border Force (ABF) appears to be very active. During the month of October, 111 sponsors were monitored. Outcomes of these audits included significant penalties, cancellation of approval as a sponsor, being barred from sponsoring other workers for a period and being issued with infringement notices.

The ABF also maintains a public register of sanctioned sponsors; it states that public disclosure aims to deter other sponsors from breaching their obligations and protects foreign workers from exploitation by enabling them to inform themselves about working for a potential sponsor.

The ABF’s current focus appears to be on industry sectors covered by Awards or other industrial agreements; these sectors include hospitality and construction.

The Award system is a complex one. While employment law is outside of our scope as immigration lawyers, we have observed the following:

• Many employers choose to “annualise” wages as this makes it easier to manage payroll. Some Awards or industrial agreements have specific “annualisation” clauses; under one hospitality Award, for example, annualisation requires the salary to be at least 25% more than the base rates of pay, as per the Award. This can result in sponsored employees being paid a salary that may match the salary on their visa approval, that nonetheless does not meet the minimum required under the Award. This constitutes a breach of sponsorship obligations.
• The Australian Border Force also seems to be reviewing whether or not it is appropriate to annualise salaries in the first place.
• In another recent and high profile case, the Fair Work Commission has questioned the appropriateness of claiming an exemption from the Award or industrial agreement, based on the occupational classification (for example, being a manager).
• Some employers have classified sponsored employees differently under the Award and for visa purposes. For example, classified as a Cook for payroll, but as a Chef de Partie for the visa. Such inconsistency is an issue if the employer is monitored. It is important that sponsored employees are employed in their approved occupations, and to be aware that any change in roles after a visa is granted may require the approval of the Department of Home Affairs.

Ajuria Lawyers expects that compliance activities will be a feature of the 2020 immigration landscape, and will continue to work closely with business sponsors to ensure compliance.

DISCLAIMER This information is current as of 16 January 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.