Plain English Guide to Sponsoring Skilled Staff from Overseas

Plain English Guide to Sponsoring Skilled Staff from Overseas

If your business is having difficulty recruiting skilled staff from within the Australian labour market, you may wish to consider sponsoring suitably qualified and experienced staff from overseas.

Prior to commencing the sponsorship process it is important that employers secure proper advice. This advice needs to address not only the specific DIAC application processing requirements, but also a number of broader issues such as sponsor’s obligations in relation to minimum salary, superannuation and medical costs for the sponsored workers and the value of well structured employment contracts.

The Department of Immigration and Citizenship (DIAC) has a number of visa programs in place which are designed to assist Australian businesses to obtain overseas staff to meet specific skill shortages in Australia.

There are many benefits to be gained from recruiting overseas staff, over and beyond the satisfaction of an immediate demand for skilled labour. There are the added benefits of obtaining new or enhanced skill sets, new ideas and an understanding of and access to new markets.

What options are available to sponsor overseas staff?

There are options to sponsor staff directly from overseas or to sponsor non-Australian persons who might already be working, studying or visiting in Australia on other types of visas. Staff may be sponsored on either a temporary basis (for up to four years) or permanently. If you initially sponsor staff on a temporary basis, you are generally able to subsequently sponsor them on a permanent basis.

1. Temporary Staff

The Temporary Business (long stay) visa allows highly skilled personnel to come to Australia to work for an approved employer for up to four years. The prospective employer must first apply to become a standard business sponsor. Business sponsorship allows employers to sponsor a specified number of temporary business entrants within a two year period.

Employers must demonstrate to the DIAC they can satisfy the sponsorship criteria, including their ability to comply with undertakings in relation to the approved number of sponsored employees.

A business sponsorship is valid for either two years or until the approved number of positions is filled, whichever happens earlier. If employers wish to sponsor additional entrants they need to make a new sponsorship application.

The position nominated to be filled by the overseas employee must meet minimum skill and salary levels. At present there is no age limitation specified for the sponsored employee.

2. Permanent Staff

The Employer Nomination Scheme (ENS) has been developed for Australian employers to recruit permanent, highly-skilled staff from overseas (or temporary residents currently in Australia), when they have been unable to fill a vacancy from within the Australian labour market or through their own training programs.

The ENS process has two stages:

a. nomination by an employer; and

b. the nominee’s application for a visa.

The nomination will be assessed against the following requirements.

The employer must:

be actively and lawfully operating in Australia
have a genuine need for a paid employee to fill a position in the employer’s business
have a satisfactory record of compliance with immigration law and workplace relations law
have made adequate provision for training existing Australian employees, or if a newly established business, be making adequate provision for future training of Australian employees.

The position in the employer’s business must:

be full-time and available for at least three years
be in accordance with the standards for working conditions provided under Australian industrial laws
correspond to an occupation on the ENS List of Occupations (which is published in a Government Gazette Notice)
attract a base salary that is at least the minimum salary that has been published in a Government Gazette Notice for the occupation.

To be eligible, the visa applicant (the potential employee) must:

either:

have worked full-time in Australia in the occupation for which they have been nominated for the last 2 years, including at least the last 1 year working for the nominating employer (applies only to applicants already in Australia)

have been nominated to fill a highly paid senior executive position with a salary of more that $165,000 per annum

have had their skills assessed as suitable by the relevant skills assessing authority (published in a Government Gazette Notice) and, unless exceptional circumstances apply, have at least 3 years experience in the occupation
be able to satisfy any mandatory licensing, registration or professional membership requirements
unless exceptional circumstances apply, be less than 45 years of age
unless exceptional circumstances apply, have vocational English language ability
along with all family unit members, meet mandatory health and character requirements.

Exceptional circumstances
In certain circumstances, where a position is so unusual or highly specialised that the employer is unlikely to find anyone who meets the established criteria to fill the vacancy, exceptions to the 3 years experience, age or English language requirements can be made.

The visa applicant must include a submission with their visa application which demonstrates the special skills required and/or the difficulties their employer experienced finding a nominee who does meet the experience, age or English language requirements.

What are my obligations as a sponsor?

An applicant for approval as a standard business sponsor of a temporary business long stay visa applicant must make the following undertakings:

to ensure that the cost of return travel by a sponsored person is met;
not to employ a person who would be in breach of the immigration laws of Australia as a result of being employed;
to comply with its responsibilities under the immigration laws of Australia;

to notify Immigration of:

- any change in circumstances that may affect the business’s capacity to honour its sponsorship undertakings; or
- any change to the information that contributed to the applicant’s being approved as a sponsor, or the approval of a nomination;

to cooperate with the Department’s monitoring of the applicant and the sponsored person;
to notify Immigration, within 5 working days after a sponsored person ceases to be in the applicant’s employment;

to comply with:

- laws relating to workplace relations that are applicable to the applicant; and

- any workplace agreement that the applicant may enter into with a sponsored person, to the extent that the agreement is consistent with the sponsor’s undertaking to DIMIA;

to ensure that a sponsored person holds any licence, registration or membership that is mandatory for the performance of work by the person;
to ensure that, if there is a gazetted minimum salary in force in relation to the nominated position occupied by a sponsored person, the person will be paid at least that salary;
to ensure that, if it is a term of the approval of the nomination of a position that a sponsored person must be employed in a particular location, the applicant will notify Immigration of any change in the location which would affect the nomination approval;
to pay all medical or hospital expenses for a sponsored person (other than costs that are met by health insurance arrangements);
to make any superannuation contributions required for a sponsored person while the sponsored person is in the applicant’s employment;
to deduct tax instalments, and make payments of tax, while the sponsored person is in the applicant’s employment; and
to pay to the Commonwealth an amount equal to all costs incurred by the Commonwealth in relation to a sponsored person.

The importance of an employment contract

When sponsoring an employee from overseas, it is important that the employer has in place an appropriate employment contract prior to commencement. There are a number of areas that must be covered in the contract and it is best to seek advice from your solicitor to ensure you have considered the full range of issues.

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