Implications for Businesses Sponsoring Overseas Workers During COVID-19
The unprecedented nature of COVID-19 has resulted in significant disruptions to Australian communities as a whole. It is also adding legal, financial and emotional complications to businesses that currently employ or intend to hire non-Australian skilled workers; specifically, businesses that sponsor them under work visas.
Sponsors have many legal obligations and responsibilities that they must continue to meet, and failure to do so may result in civil or criminal enforcement. While we are all distracted by COVID-19, it is more so imperative for the business executives to remember and act to ensure the legal integrity of their business is maintained by upholding both employment and migration laws.
The Recent Changes to Business Operation
We are aware that many businesses are reducing their operations, and some are left with no choice but to shut down temporarily and some permanently.
As a result, we are becoming alarmingly aware of the sponsored visa workers who are currently experiencing reduced work hours, salary cuts, and even being made redundant.
Potential Breach/Non-Compliance With Sponsor Obligations
Some of the most common breaches/non-compliances with sponsor obligations owed to foreign workers may include:
Reducing the salary
Reducing the working hours
Permanent stand down
Termination of employment
Unlike the Australian workers, employers must remember that sponsored visa workers have additional concerns under the immigration laws.
For example, current migration laws do not allow sponsored workers to take a pay cut for any reasons, including COVID-19 pandemic.
Importance of Complying With Your Sponsorship Obligations
Only a few information has been made available about any temporary concessions granted to sponsoring employers who are affected by COVID-19.
Some officers at the Department of Home Affairs (the Department) may allow some leniency while considering your business’s compliance with your obligations. However, COVID-19 is not a Get Out of Jail Free card, and you should not be too relaxed when dealing with sponsored workers.
A sponsor (including its owners and directors) who fails to meet their sponsorship obligations may face a range of possible sanctions including:
cancellation of their approval as a sponsor
being barred from sponsoring other workers
being barred from making future applications for approval as a sponsor
being issued with an infringement notice of up to:
o $1,260 for individuals and $6,300 for bodies corporate per obligation breach for a first notice
o $2520 for individuals and $12,600 for bodies corporate per obligation breach for subsequent notices.
civil penalties imposed by the courts (for example, up to $63,000 for a corporation and $12,600 for an individual for each failure)
Enforceable Undertaking between the sponsor and the Department of Home Affairs / Australian Border Force.
More than one sanction can be imposed.
The Department will publish information identifying sponsors who have not complied with their sponsorship obligations and any action taken against them. This public naming and shaming will undoubtedly detriment the public image and reputation of the brand, the business and it’s owners.
Therefore, during these uncertain times, we recommend that businesses to consult their migration professionals when it comes to dealing with their overseas employee, especially those who are currently a holder of Subclass 482 or 457 Visa.
Do not take a laid-back approach. Be proactive and protect your business and your interests.
Sponsor Monitoring Unit
The Department promotes and accepts anonymous reports from any individuals if a business is suspected to be in breach of their legal obligations.
The Department monitors your compliance with your sponsor obligations when you are a sponsor and up to five years after your sponsorship ends.
They also monitor your sponsored employees to ensure they comply with their visa conditions
Your compliance with the sponsorship obligations might be monitored by Immigration inspectors, Fair Work Inspectors, or Fair Work Building Industry Inspectors who have investigative powers under the Migration Act 1958. Failure to cooperate with inspectors is a breach of your sponsorship obligations.
Sponsorship Sanctions and How to Avoid It
You may have already made some hastily decisions that affect one or more sponsored visa workers to reduce business operations costs out of desperation to save your business. If you think that you may have breached any of your sponsorship obligations, please contact us.
Do not make the mistake of thinking that the Department will understand and accept your decisions. The Department is even more critical and sensitive to foreign workers and labels them as ‘vulnerable workers’.
How Can Agape Henry Crux Help You
At Agape Henry Crux, we have put together a team of immigration lawyers experienced in dealing with the Sponsor Monitoring Unit, representing our business clients of all sizes to avoid or minimize sanctions under the relevant laws.
We will comprehensively assess your circumstances to identify whether any breaches took place, and also advise you to avoid any future sanctions and consequences that may affect your business and you as an individual.
Please contact us on 02 7200 2700 or email us at info@ahclawyers.com and we will help you book in a time that suits you best to strategize a prevention or a solution to any complications that you may have.