Businesses who sponsor international talent to work in Australia can be investigated by regulatory organisations who make sure the terms of employment meet the correct criteria and visa holders are being treated fairly in accordance with Australian immigration regulations.
The main regulatory bodies are the Fair Work Ombudsman (Fair Work Inspectors) and the Department of Home Affairs (Australian Border Force personnel).
An investigation of your sponsored employee records and activities can take place at any time. If you are prepared, it will be a formality rather than a stressful experience.
Types of investigation
Fair Work Ombudsman Workplace Investigation
If you are investigated by Fair Work, officials will review your staff’s working hours, pay and conditions to determine whether people are being paid and treated in accordance with Australian workplace regulations. It’s easy to assume that it’s fast food restaurants or retailers with casual employees who are most likely to be scrutinised for issues such as underpaying staff, but any employer of workers, large or small, can be held accountable if their entitlements and superannuation are not paid in accordance with Australian regulations.
Department of Home Affairs Sponsor Monitoring
Department of Home Affairs Sponsor Monitoring is undertaken by the Australian Border Force and is focused on individuals working under a visa of any kind, including sponsored work visas and other kinds of visas. It examines whether or not the conditions of the visa are being met and reviews employer information to ensure compliance with record-keeping and reporting requirements.
General preparation for investigations
As an organisation with foreign national employees, it is important to be aware of your obligations in the following areas:
- Sponsorship obligations are complied with, including ensuring equivalent terms and conditions of employment for sponsored employees, and visa holders must receive the same pay and conditions as Australian employees in equivalent positions
- Visa conditions are complied with, including work hours and guaranteed earnings are met
- Record-keeping and reporting: Sponsors must maintain accurate records and report certain events to the Department of Home Affairs, such as changes in employment conditions
- Ensuring the sponsored employee works only in the nominated occupation: The employee must perform the job for which they were sponsored.
An investigation will be smoother if your organisation has comprehensive, easy-to-access documentation relating to each foreign national employee.
To be prepared, make sure you can locate and share:
- Record of visa held: such as an excerpt from the Visa Entitlement Verification Online system (VEVO)
- Employment contracts and payslips: To demonstrate compliance with equivalent terms and conditions
- Payroll: records of working hours and rates of pay
- Records of changes to responsibilities: If a sponsored employee has changed roles or location, this needs to be recorded and reported correctly
- Migration records: Copies of visa applications, nomination approvals and any correspondence with the Department of Home Affairs
- Financial records: These may be requested to verify your organisation’s capacity to meet sponsorship obligations.
Work with your immigration partner to prepare a checklist of required documents so necessary information can be quickly compiled and provided.
So your organisation can respond effectively, it helps to give a specific individual or team responsibility for this area of HR management.
Internal investigations and compliance checks
Conducting an internal immigration investigation is a best-practice strategy.
This involves:
- Reviewing employment contracts and comparing them with actual pay records to ensure alignment
- Checking record-keeping practices to ensure all necessary documents are up-to-date and easily accessible
- Ensuring reporting mechanisms are in place for notifying the DHA of any required changes within the prescribed timeframe
- Ensuring any changes to sponsored employee responsibilities or conditions have been accurately logged and reported.
As a final precaution, educate your sponsored employees to ensure they understand their obligations regarding any changes in their work-related plans or circumstances.
Penalties for non-compliance
If an employer is found to be non-compliant with immigration and visa sponsorship requirements, they risk a fine or having work visas revoked. Directors may also be held liable, or the business may be unable to sponsor employees in the future.
Finding the right support for regulation compliance
Prevention is always better than cure, and while investigations may happen regardless, the outcome can be managed by making sure your immigration partner is able to advise you on compliance, regulation changes and what you can have prepared to ensure investigations don’t cause disruption or result in employer sanctions.
Your partners at The Migration Agency are up to date with all the requirements of immigration reporting and audits. Connect with us to ensure your business is compliant and ready in case a regulator comes knocking.
