Category: Compliance

Training 457 sponsorship

A Changed Definition of Training for 457 Sponsorship

As part of the bundle of legislative and policy reforms introduced to Australian work visas, including the Temporary Work (Skilled)(subclass 457) visa, on 1 July 2017 the Department of Immigration and Border Protection (DIBP) changed the definition of training for 457 sponsorship.

In applying to register as a 457 standard business sponsor, businesses are required to meet the requisite training benchmark. The training requirements include the following:

  1. For a business operating for less than 12 months, an Auditable Training Plan must be provided.
  2. For a business operating for more than 12 months, the options are as follows:
    1. Training Benchmark A: The business must demonstrate that 2% of payroll was placed in an industry training fund; or
    2. Training Benchmark B: The business can show that 1% of payroll expenditure was spent on training Australian staff.

Outline of the Key Training Definitional Changes

The key changes on 1 July 2017 include clarification of the following requirements:

  1. Definition of what constitutes payroll expenditure for a business; and
  2. Clarification of what can and cannot be counted towards training expenditure in order to meet Training Benchmark B.

What constitutes payroll expenditure?

The Federal Government has clarified that from 1 July 2017 payroll has an expansive definition and is considered to be one of the following:

  • The total amount of wages, remuneration, salary, commission, bonuses, allowances, superannuation contributions or eligible termination payments and payments made to relevant contractors or subcontractors; or
  • If the sponsoring business does not pay wages, contractors and subcontractors then the monetary value of director’s salaries, fees and drawn payments; or the profit of the business.

What Constitutes Training for Training Benchmark B?

The Federal Government has clarified that the following constitutes training for the purposes of Training Benchmark B:

  • for Australian employees to undertake a formal course of study, including any reasonable and necessary associated costs (e.g. costs of travelling to training venue) or access an online learning programme;
  • to RTOs to deliver face-to-face training to Australian employees that will contribute towards an Australian Qualification Framework qualification;
  • to purchase an eLearning platform or standalone training software; or
  • to cover the salary of:
    • Australian employees engaged by the business as apprentices or trainees under a formal training contract;
    • Australian employees who have completed an undergraduate or higher degree in a university within the last 365 days;  or
    • a trainer responsible for training Australian employees on a full time basis.

What Does Not Constitute Training for Training Benchmark B?

The Federal Government has clarified that the following cannot be counted towards training expenditure for the purposes of Training Benchmark B:

  • on-the job-training;
  • induction training;
  • staff completing online training courses;
  • purchasing software for use in normal duties;
  • membership fees;
  • purchasing books, journals or magazine subscriptions;
  • attending conferences for purposes other than continuing professional development;
  • hiring a booth at a trades show, conference or expo
  • training only undertaken by persons who are:
    • not Australian citizens or permanent residents;
    • principals in the business or their family members;
  • training that is not relevant to the industry in which the business operates or has a very low skill
  • level having regard to the characteristic and size of the business.

Proposed Future 457 Sponsorship Training Changes

Significant reforms are currently underway to the Australian visa program and when the new Temporary Skills Sponsored (TSS) visa replaces the subclass 457 visa, the Federal Government has announced that the current training provisions will be replaced by a work visa levy to be paid by standard business sponsors per worker.

Need Assistance?

It is crucial to each standard business sponsorship application that the correct evidence is provided to demonstrate meeting training benchmarks.

For advice and assistance with this process, contact us or email our firm at info@hartmanlawyers.com.au.

Disclaimer:

The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.

Sponsorship Compliance and 457 Visa Changes

Following Australian Prime Minister Malcolm Turnbull’s announcement on 18 April 2017 that the Temporary Work (Skilled)(subclass 457) visa will be abolished from March 2018, a host of changes to Australia’s work visa program are now being introduced in stages, including subclass 457 sponsorship compliance.

The Australian Federal Government has announced that it will implement sponsorship compliance reforms commencing on 31 December 2017. This includes creating a public database of sponsors sanctioned for failing to meet their sponsorship obligations in accordance with the Migration Regulations 1994 and related legislation.

Meeting Sponsorship Obligations

In order for a business sponsor to prevent breaching their subclass 457 sponsorship obligations and  appearing on a list published by the Department of Immigration and Border Protection (DIBP), the following steps are strongly recommended:

  • Ensure that the business meets the requisite training requirements in each 12 month period of the sponsorship;
  • Ensure that when sponsoring a 457 visa holder the business, or individuals within the business, do not receive a payment or gift for sponsoring the overseas worker;
  • Ensure that the 457 visa holder employee is working in the nominated occupation specified to the Department of Immigration and Border Protection (DIBP);
  • Ensure that the 457 visa holder is paid in accordance with information provided to the DIBP; and
  • Keep records of the 457 visa holder’s employment, such as payslips and leave records.

In addition, as of 31 December 2017 the DIBP will start collecting tax file numbers of 457 visa holders and matching data with Australian Tax Office records to ensure visa holders are being paid their nominated salary.

TSS visa and Sponsorship Compliance

The new Temporary Skills Sponsor (TSS) visa which will replace the 457 visa in March 2018 may be accompanied by reformed sponsorship obligations. For businesses sponsoring overseas workers under the TSS visa, it is important to remain informed of sponsorship obligations.

We will continue to monitor Australian work visa changes and inform our clients and contacts of future sponsorship compliance reforms.

For advice regarding sponsoring workers on a subclass 457 visa and compliance issues, please do not hesitate to contact us at info@hartmanlawyers.com.au for Australian immigration assistance.

Disclaimer:

The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.

arrangements for part-time employment of subclass 457 visa holders

Part-time Work and the Subclass 457 Visa

The Australian Department of Immigration and Border Protection (DIBP) has clarified arrangements for part-time employment of Temporary Work (Skilled)(subclass 457) visa holders in Australia.

The DIBP has emphasised that subclass 457 visa program is designed to fill genuine labour shortages within the Australian labour market where it is not possible to source Australian employees. It is therefore intended that subclass 457 visa holders are employed on a full-time basis.

Is it possible to nominate a 457 visa holder on a part-time basis?

However, in limited circumstances it may be possible for a business to employ subclass 457 visa holders on a part-time basis.  Part-time work arrangement may be approved in the following situations:

  1. Subclass 457 nomination criteria are met, including nominated earnings meeting the market salary rate and the salary threshold being met. (Please note that the DIBP has confirmed that pro-rata rates will not be considered when assessing meeting the salary threshold requirement, which is currently $53,900 per annum.)
  1. Part-time work may be approved where nominated earnings are a minimum of $250,000 per annum.

We also note that part-time positions cannot be approved for subclass 457 visa holders under a labour agreement. This is only possible through a standard business sponsorship.

Subclass 457 visa holders returning to work after maternity leave

It is possible that circumstances for a subclass 457 visa holder will change onshore, such as an employee taking maternity leave and wishing to return to work on a part-time basis. In this situation, it is possible for a subclass 457 visa holder to reduce their hours, however the following conditions must be met:

  • The pro-rata hourly rate of the approved nominated salary of the subclass 457 visa holder cannot decrease and they must receive the market salary rate;
  • The subclass 457 visa holder’s role and duties must remain consistent with the nominated occupation and position approved under the nomination;
  • Reducing hours to part-time is mutually agreed upon by the sponsoring employer and the subclass 457 visa holder, (it is recommended that sponsors obtain a written agreement); and
  • The subclass 457 visa holder is not employed under a labour agreement which does not allow for part-time positions.

If a subclass 457 visa holder’s salary is at least $250,000 per annum, it is also possible to reduce hours to part-time without an agreement in place.

However, it is generally considered inappropriate by the DIBP to reduce a subclass 457 visa holders hours to part-time. This would mean that their guaranteed annual earnings would decrease and sponsors must ensure that subclass 457 visa holders are provided with conditions no less favourable to their Australian counterparts.

For more information on applying for subclass 457 visas, please feel free to contact the author by email at rebecca@hartmanlawyers.com.au or by telephone on +61 3 9021 0986 or +61 (0)423 701 747.

Disclaimer:

The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.

Ceasing employment 457 visa

Ceasing Employment as a 457 Visa Holder

Following from our article last month regarding Transferring Employers for Subclass 457 Visa Holders- Important Policy Changes, the Australian Federal Government’s proposal to reduce the period a Temporary Work (Skilled)(subclass 457) visa holder can remain in Australia after ceasing employment with their sponsor has been introduced into the Migration Regulations 1994.

Instead of the previous 90 day period to remain in Australia, subclass 457 visa holders whose employment with their sponsor has ceased (either due to termination or resignation) will now have only 60 days to remain in Australia.

However, subclass 457 visa holders may be able to find another employer willing to sponsor them.  Policy updates from last month dictate that now the 457 visa holder’s new potential employer is only required to lodge a new nomination and (if required) sponsorship application within the 60 day period.  The nomination is no longer required to be approved within this period.

Please note that the 60 day amendment will affect subclass 457 visa holders where the visa was granted on or after 19 November 2016.

For advice regarding subclass 457 sponsorship, nomination and visa applications, please do not hesitate to contact us at info@hartmanlawyers.com.au for Australian immigration assistance.

Disclaimer:

The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.