Re: Subclass 186 Employer Nominated Scheme (Temporary Residence Transition Stream) Permanent Residency Visa (the Subclass 186 TRT).
One of the requirements for the Subclass 186 TRT is to demonstrate 3 years of work experience with the Sponsor of your Subclass 482 Visa. What happens when you need to take time away from work such as sick leave or maternity leave?
Work Experience Requirements
For the Subclass 186 TRT, you need to show 3 years of work experience whilst on the subclass 482 visa working with your Sponsor.
When calculating your 3-year eligibility period, you need to take into consideration any periods of leave, both paid annual leave, and unpaid leave.
Leave Without Pay
Visa holders may take both paid (e.g. annual leave) or leave without pay (e.g. sick or emergency leave) during your 3-year eligibility period.. However, not all leave can be counted towards your 3-year eligibility period.
If you had any periods of unpaid leave, this is classified by the Department as “Leave Without Pay” which cannot be counted towards your 3-year eligibility period.
Some 482 visa holders need to take maternity leave during their 3-year eligibility period. This means time away from employment for an extended period, and can involve both paid and unpaid leave.
Department guidelines state that any unpaid periods of leave cannot be counted towards your 3-year eligibility period.
If you had paid maternity leave, you may be able to count that experience towards your 3 years. However, any unpaid maternity leave is considered “Leave without pay” which cannot be counted. We agree that this policy position is unfair, but it is the policy we must work with none the less.
If you think you are eligible for Permanent Residency, you should obtain your leave records from your employer to calculate when you may be eligible.
This post explores how to become a Standard Business Sponsor of Temporary Work Visas
what the obligations are for your organisation are once it becomes a Standard Business Sponsor.
What is a Standard Business Sponsor?
Before employing overseas workers for a subclass 482 or subclass 494 visas, businesses must apply to become Standard Business Sponsors. A Standard Business Sponsorship allows employers to nominate overseas workers for 5 years. This Approval can be renewed close to the end of the expiry.
How to apply for a Standard Business Sponsorship?
To become a Standard Business Sponsor, you need to demonstrate to the Department that your business:
Is lawfully operating in Australia; and
There is no adverse information about the business or its directors.
What are your obligations?
The Department has a prescribed sponsorship compliance framework, setting out obligations that Sponsors must satisfy. The Department also has powers to act on any breaches of these obligations which can carry serious civil or criminal penalties.
Your obligations begin before your new employee starts working with your business. Before any new employee begins, you need to check to ensure that they have the necessary work rights. Do not assume that they are Australian or have work rights. Penalties apply to businesses that employ workers who are unlawful or do not have the necessary work rights.
This list is not exhaustive but here are some common obligations for employers:
Obligation to ensure equivalent terms and conditions of employment.
Obligation to pay travel costs to enable sponsored persons to leave Australia;
Obligation to keep records of compliance.
Obligation to not recover costs related to the business application;
Ensure the sponsored employee only works in the nominated occupation;
Notify the Department of the cessation of a sponsored employer;
Notify the Department change of work duties of the sponsored employee.
Notify the Department of Changes within the business (e.g., new director, change of business name or address).
You should contact your legal representatives as soon as possible to ensure not only compliance with your obligations but that you have acted within the prescribed timeframe of 28 days.
If you are unsure about whether you need to notify the Department about certain changes, you should contact your legal representatives to guide you on the next steps.
What can you do to uphold your obligations?
There are numerous steps your HR department or managers can take to ensure compliance with these obligations. Alternatively, you should contact your legal representative.
Conduct VEVO checks to ensure they have a valid Australian Visa and Work Rights (VEVO checks). This should be completed before their employment and regularly during their course of employment.
Checking specified documentation such as passports and Immi Visa Grants
Keep records of visa grants and passport ID pages
Notify the Department as soon as possible when there are any changes to both the sponsor and sponsored employee.
What is adverse information?
As discussed above, your business must not have adverse information known about the employer or any person associated with it. If there is any adverse information, the Department must be satisfied that it is reasonable to disregard this information.
In migration law, adverse information relates to the sponsor, the nominator and any person associated with the sponsor.
Adverse Information is defined as the following:
Any person has been found guilty by a court of an offence under a Commonwealth, State or Territory law;
Acted in contravention of such law;
Subject to administrative action (including being issues with a warning) by a competent authority, for such contravention;
Is under investigation, subject to disciplinary action or subject to legal processing;
Has become insolvent within the meaning on subsections 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001.
These matters include the following:
Occupation health and safety;
People smuggling and related offences;
Slavery, sexual servitude and deceptive recruiting;
Trafficking in persons and debt bondage.
If your business has adverse information, the Department can take into consideration a range of factors to disregard that information. These include:
the nature and seriousness of the adverse information;
whether the adverse information arose recently or a long time ago;
how the adverse information arose, including the credibility of the source;
whether the adverse information has been substantiated, for example, by a formal action or finding by a court, department, or regulatory authority (a ‘competent authority’) — or whether there are investigations, disciplinary actions or proceedings that are not yet finalised;
where the adverse information is an unsubstantiated allegation, the credibility of the information and its source;
likely to reoccur (including whether there have been steps taken to guard against this);
how relevant the adverse information is to the person’s suitability as an approved sponsor or nominator;
whether there are any compelling circumstances affecting the interests of Australia;
It is recommended that businesses provide a statement of how it occurred, how you have remedied the breach and demonstrate any procedures the business has put in place to ensure compliance with that relevant law.