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Small H only 111x74

Small Biz Matters – a half hour program each week where you can work

ON your business rather than IN it.

with Sarah Gillis

Director of Aspire Strategic Visa Solutions

Date: 31st March 2015

Intro:

A:         As a small business owner we are constantly surrounded by red tape and one area which is particularly complex is that of employment. It’s difficult at the best of times to find the right person, and keep the right person if they’re perfect for the role. But what if that employee is from overseas and is currently on a Working Holiday or Student visa? Would you still consider them for long term employment? Do you ask yourself – what’s involved? How much red tape do I have to wade through? Is it worth it in the end?

Well, here to untangle this (what seems to the rest of us to be) very complex issue is Sarah Gillis, Principal Consultant at Aspire Australia, Strategic Visa Solutions and an expert in the field of Australian migration and working visas.

Sarah, can you tell me a little bit about background and what led you to this career path?

S:        Thanks Alexi. I was working as a solicitor and obtained a job in a migration law firm. I learned the ropes over the first four years and was accredited as a specialist by the law society of new south wales. Since then I have specialized in migration law and have 15 years experience under my belt. Having said, that, I continue to learn each day as the regulations and policy changes frequently. What I love about my work, however, is that we are helping to bring our clients’ dreams of living and working in Australia into reality.

Part 1 – Restrictions & Stats on working visa holders

A:         So who is and isn’t allowed to work in Australia?

S:        Well, apart from permanent residents and citizens and NZ citizens living in Australia, everyone else needs a visa that permits work. The most common ones would be the working holiday maker visa and the Student visa, but there are also occupational training visas, sports visas and other specialist visas. And other visas, such as Tourist visas, do not permit work at all.

A:         What are the work restrictions for students and working holiday makers?

S:        Students can work a maximum of 40 hours per fortnight during study periods and full time during breaks. Their partners will also have the ability to work part time or, if the Student is studying at degree level, the partner can work full time.

Working Holiday Makers are permitted to work for one employer for a maximum of six months.

A:         Right, so if a student or working holiday maker is working for an Australian business and that business would like them to work full time, how can they go about it?

S:        That is where the sponsorship for a working visa comes in. The employer must obtain approval to employ the person either on a 457 visa – a four year visa which many people have heard about in the media but perhaps have a skewed opinion about. Or a permanent residence Employer Nomination Scheme visa.

A:         Yes there has been plenty of media coverage about the 457 visa over the past year or two. How many people would currently be in Australia on 457 visas at the moment?

S:        As at the end of December 2014 there were about 90 000 primary 457 visa holders in Australia.

Part 2 – Weighing up the decision to sponsor on a 457 visa

You’re approached by a business as they are thinking about hiring someone on a visa, how do they go about employing them? What sort of advice do you give them to weigh up the decision?

  • Bear in mind timing is very important, you must still abide by the restrictions of their existing visa
  • What is the value to their business to keep that skilled person
    • Is the employee not easily avail in Aust or has unique experience from overseas
    • The company has to be prepared to pay $53,900 minimum to the person, need to pay market rate salary and salary needs to be above this. “Skilled positions” can be researched via lists on Dept of Immigration website

What is the cost & effort to keep them

Part 2 – Eligibility & the process

You’re approached by a business as they are thinking about hiring someone who is not an Australian permanent resident or citizen and asks you “I want to keep them, how do I move them onto a 457 visa?” What sort of advice do you give them to weigh up the decision?

First I explain that there are three steps that need to be completed and three approvals that need to be obtained from the Department of immigration and Border Protection:

First, the company must be approved as a sponsor
Second, the nominated position must be approved
Third, the proposed employee’s visa application must be approved

Then we work out the likelihood of those approvals being obtained.

  1. For the sponsorship – the company applies for an overall approval that will last three years during which time it can nominate as many 457 visas as it wishes.To obtain that approval the business will provide details about its operations and activities, its staff levels, its financial status and ability to employ the nominee, any previous workplace or immigration issues, and the training provided to its Australian staff.Businesses wishing to sponsor under the 457 programme are required to spend either 1% of gross payroll on the training of Australian employees or pay 2% of gross payroll into an industry training fund.

OK, so then for step 2

Yes, the nomination. This application relates to the position which must be on the Australian Government’s list of available occupations – this can be accessed on the DIBP website – search for CSOL. If the position that the company has available matches one of those occupations, then we look at what salary the company is intending to pay. For the 457 visa, the salary threshold is currently $53 900 however it must also match market rates. This means that the proposed salary is what would be paid to an Australia to do the same work.

The sponsor must provide a written contract of employment to the 457 visa holder outlining all these conditions; this safeguards both the employer and the employee.

Finally, and importantly, the sponsoring business must show that the position is a genuine position within its operations.

This is one area where I have seen companies who have prepared and submitted applications by themselves, have run into trouble. Either by not offering the appropriate salary or by not being able to justify clearly why the position is necessary. If it is a new position, then how has it come about? If it is an existing position then why did it become vacant?

For some occupations, too, labour market testing must be undertaken. Generally this is for all trade occupations and for nursing and engineering positions. Sponsors need to advertise the position to ensure that there is not an Australian candidate available to fill the position.

OK, so if the sponsorship and nomination applications are approved, then how about the third step, the visa application?

  1. Right, well this is where the rubber hits the road as without the visa approval, the business will not be able to employ the candidate on a long term basis.To be approved, the visa applicant must show that he or she has the skills to undertake the duties of the nominated position. This may be based on the qualification and or work experience that the person has. In some occupations, specialist qualifications or registration may be required. And in some occupations, the Department of Immigration may require a formal skills assessment.Before embarking on the whole sponsorship process, therefore, it is really important for the employer to know that, in the end, the candidate will be likely to get the visa.

    Apart from proving their skills, the visa applicant also has to have English language ability – either a score of 5 on the IELTS test or provision of evidence of English medium schooling.

Great, so with the 457 visa approved, the person can now start work?

Yes, and the 457 visa is available for up to four years.

Part 3 – What’s Next & General Tips

A:         So, Sarah, a business has been approved as a sponsor and has their 457 visa holder working in their business. What happens next?

S:        The 457 visa holder must then start work within 90 days of the approval of the visa and hopefully all goes well with the employment.

At the same time, the sponsoring employer must ensure that it keeps its end of the bargain by paying the 457 visa holder the correct wages, provide the agreed terms and conditions and not change the 457 visa holder’s occupation without first seeking approval from the Department of Immigration.

Further, the sponsor must maintain its sponsorship obligations to keep records – such as payroll and HR records relating to the employment of the nominee – and these are no different to those that would be kept by a business for any employee. The business must also maintain its annual expenditure on training as we mentioned above and keep records of the same.

A: DO YOU WANT TO MAKE A COMMENT ABOUT RECORD KEEPING HERE??

If both the company and the nominee abide by the conditions of their sponsorship and visa respectively, then they should maintain a good relationship and after two years the company may be willing to nominate the 457 visa holder for permanent residence.

A:         Now, Sarah, you are a migration agent registered with the Australian Government’s Migration Agents Registration Authority. Why would a business or a visa applicant choose to use a migration agent?

S:        Alexi, I tell people it is like changing the oil in your car. We can probably all do it, but if there are experts who can do it, then I can have peace of mind knowing that the job is going to be done right, and save myself a whole lot of time in the meantime.

A:         For businesses time costs money and if your time can be better spent growing your business instead of trying to work out all the ins and outs of how to get approved then engage with the experts!

S:        That’s right Alexi and speaking of time, the process that we discussed above can take four to eight weeks to be finalized at the Department of Immigration. If, however, the Department needs to come back to ask questions, the application will not be re-examined for another 28 days. It is very important, therefore, to provide all the material with the application so that the application can be efficiently processed and the business can have their employee on board sooner.

A:         As we mentioned earlier, there is a lot of news about this topic and there seem to be many changes, is that right?

S:        Yes. There is also currently a review into the 457 programme with the outcome due before Easter. This will no doubt bring in more changes.

A: So again, it is important to engage with someone who knows what they’re doing and keep on top of the requirements.

A:         Finally, Sarah, our listeners may think that this is all too confusing and cumbersome, what would your response to that be?

S:        Well, Alexi, that is why we are here, as professionals who have made this area of law our career. But, in addition to that, if that employee or candidate is one who is going to bring skills, experience and knowledge to your business, and give you an advantage, then the 457 programme is well worth considering

Thank yous and close.