Immigration Lawyers and Migration Agents

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Market Salary and Equivalent Employment Terms and Conditions

Standard business sponsors are required to offer employment terms and conditions that are comparable to those offered to Australian citizens and permanent residents.

This is required to ensure overseas workers are not being exploited for cheap wages or long work hours.

You can be exempted from demonstrating market salary rates if the proposed annual earnings of the worker is at least AUD 250,000.

You will need to show that the terms and conditions offered to the sponsored overseas worker are of the same wages and working conditions as an Australian employee.

If there are no comparable Australian employees in a similar position, the standard business sponsor should refer to relevant industrial instruments such as modern awards to determine market salary and acceptable employment conditions. The Fair Work Ombudsman (https://www.fairwork.gov.au/) is a good reference to ensure acceptable employment conditions are in place.

Temporary Skilled Migration Income Threshold (TSMIT)

Although a separate requirement, the Temporary Skilled Migration Income Threshold (TSMIT) is an important consideration when determining the Market Salary for a 457 visa application. The rules in relation to the TSMIT are:

• The market salary for the position must be greater than the TSMIT
• If the market salary for the position is lower than the TSMIT then you will not be able to sponsor an overseas worker for the position under the 457 visa programme
• You cannot pay an overseas worker above the market salary rate just to meet the TSMIT

The TSMIT is currently set at AUD 53,900.

If you need further information that is specific to your business, industry or situation, please contact us to find out more details on the 457 visa application requirements.

We are able to explain the nomination requirements to employers.

Do you need help?

Our team of experience Immigration Lawyers and Migration Agents look forward to assisting you with your Australian visa or appeal.

Based in Adelaide South Australia, we provide Australian Immigration advice to people and businesses from all over the world.

What is Labour Market Testing?

Implemented in November 2013, the Labour Market Testing requirement tasks standard business sponsors to test the local labour market before hiring an overseas worker for nominated position.

The purpose of the Labour Market Testing is to ensure that available job opportunities are provided to the local workforce first before looking to sponsor an overseas individual to fill the role required.

What do you need to do to meet the Labour Market Testing Requirement?

Standard business sponsors need to record efforts and attempts to hire local Australian citizens or permanent residents.

The recruitment activities need to be sufficient to justify that the local workforce cannot fulfil the requirements of the nominated position due to the lack of skills, qualifications or relevant work experience.

The Labour market testing must have been undertaken within twelve months prior to lodging a nomination.

Such recruitment efforts may include:

• The posting of job advertisements.
• The details of dates, contents and expenses of the advertising.
• Conducting interviews and tabulating the outcome of all applications for the advertised position.

Are there any exemptions to the Labour Market Testing requirement?

There are avenues for exemption from the Labour Market Testing. You can be exempt from Labour Market Testing for the following reasons:

Occupation Level

Occupations described by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) as skill level 1 or 2

Skill level 1 occupations are occupations that require an Australia degree level qualification or at least five years relevant experience, which may substitute for the formal qualification.

Some examples of skill level 1 occupations include General Managers, Marketing and Advertising Managers, IT Managers, Farmers and Agricultural Managers, etc.

Skill level 2 occupations require an Australia Qualifications Framework (AQF) Associate Degree, Advanced Diploma or Diploma qualification or at least three years of relevant experience as a possible substitute for the formal qualification.

Some examples of skill level 2 occupations include ICT professionals such as Developer Programmers, Software Engineers, Business Professionals and Teachers.

However some skill level 1 and 2 occupations still require Labour Market Testing to be done. These occupations include positions in the engineering and nursing profession. You can refer to the list here. If you are nominating an occupation in these professions, you will need to provide evidence of Labour Market Testing.

International Trade Obligations

1. The worker you nominate is a citizen/national of China, Japan or Thailand, or is a citizen/national/permanent resident of Chile, Korea or New Zealand.
2. The worker you nominate is a current employee of a business that is an associated entity of your business that is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile, China,​ Japan, Korea or New Zealand.
3. The worker you nominate is a current employee of an associated entity of your business who operates in a country that is a member of the World Trade Organisation, where the nominated occupation is listed below as an “Executive or Senior Manager” and the nominee will be responsible for the entire or a substantial part of your company's operations in Australia.
4. Your business currently operates in a World Trade Organisation member country and is seeking to establish a business in Australia, where the nominated occupation is listed below as an “Executive or Senior Manager”.
5. The worker you nominate is a citizen of a World Trade Organisation member country and has worked for you in the nominated position in Australia on a full-time basis for the last two years.

When should I conduct the Labour Market Testing?

Labour Market Testing must have been conducted within 12 months before the lodgement of a 457 visa nomination. Evidence of Labour Market Testing must be presented at the time of nomination lodgement.

Do you need help?

Our team of experience Immigration Lawyers and Migration Agents look forward to assisting you with your Australian visa or appeal.

Based in Adelaide South Australia, we provide Australian Immigration advice to people and businesses from all over the world.

The position must be an occupation on the 457 List which is called the Consolidated Skilled Occupation List. (insert link to the list).

Not all occupations can be sponsored for a 457, so it is very important to determine if the position you want to go ahead with is eligible for approval.

The most popular occupations for 457 visa sponsorship for the year 2014-2015 to 31 March 2015 are as follows:

1. Developer Programmer
2. Cook
3. Café or Restaurant Manager
4. Marketing Specialist
5. Software Engineer
6. ICT Business Analyst
7. University Lecturer
8. Management Consultant
9. General Practitioner
10. Resident Medical Officer
11. Chef
12. Sales and Marketing Manager
13. Accountant (General)
14. Mechanical Engineering Technician
15. ICT Project Manager

If the occupation to be nominated is not on the Skilled Occupation Lists then a Labour Agreement will be required. You can always speak to Work Visa Lawyers if you need to clarify the occupation or to learn more about Labour Agreements.

Do you need help?

Our team of experience Immigration Lawyers and Migration Agents look forward to assisting you with your Australian visa or appeal.

Based in Adelaide South Australia, we provide Australian Immigration advice to people and businesses from all over the world.

Stage 2: Nomination Application

There are a number of position related criteria to be fulfilled by the business to be successful with the nomination.

The 457 nomination requirements include:

• The position must be an occupation on the 457 List which is called the Consolidated Skilled Occupation List. (insert link to the list)
• Meeting the Temporary Skilled Migration Income Threshold (TSMIT)

This is the minimum annual salary you must pay for the sponsored 457 visa worker. The TSMIT is currently A$53,900.

You need to note that if the average market salary for the position is lower than the TSMIT, you cannot simply overpay an overseas worker to enable sponsorship under the 457 visa programme.

• Fulfil the Labour Market Testing (LMT) requirements (insert a link)

This requires the business to test local labour markets to demonstrate effort to recruit local workers before deciding to sponsor an overseas worker for the required position.

• Market Salary at Australian Standards
• This involved providing Employment Terms that are equivalent to terms offered to an Australian employee
  • The sponsored worker must work directly for the business
  • The work and position must be genuinely available and relevant to the operations of the business

The requirements are complex and may vary according to different industries. Please contact Work Visa Lawyers if you need a more detailed explanation that is relevant for your business or industry.

Do you need help?

Our team of experience Immigration Lawyers and Migration Agents look forward to assisting you with your Australian visa or appeal.

Based in Adelaide South Australia, we provide Australian Immigration advice to people and businesses from all over the world.

It is critical that the 457 visa holder and business sponsor adhere to the obligations and conditions of the 457 visa when it is approved. Failure to meet the conditions will result in visa cancellations and/or removal of sponsorship status for the business.

457 business sponsor obligations

To prevent exploitation of overseas workers and to ensure skill shortages are genuinely met the sponsor will need to do the following:

• Cooperate with the Department for checks on compliance
• Ensure employment conditions are fair
• Keep and maintain records of employment for the 457 visa holder
• Ensure that the sponsored 457 visa worker does not perform duties other than what is required for the nominated occupation
• Do not obtain payment from the sponsored worker for the costs of the 457 visa application
• Continue to meet the Training Benchmark requirements
• Pay the travel costs for the sponsored worker to leave Australia when the visa validity expire

Do you need help?

Our team of experience Immigration Lawyers and Migration Agents look forward to assisting you with your Australian visa or appeal.

Based in Adelaide South Australia, we provide Australian Immigration advice to people and businesses from all over the world.

The 457 Visa is no longer available, but there are other sponsorship visa options such as the 482, 186, 494, and DAMA.

Click here to learn How to Find a Sponsor for 482, 186, 494, and DAMAs Visas. 

If you would like to go ahead with an employer-sponsored application, you will have to secure a job offer from an employer. 

The job offer will have to be for an acceptable role on the CSOL list and you will have the required qualifications, skills and experience to fill the role.

How do I find a 457 Sponsor?

You will need to consider the usual pathways for finding employment, which could include:

• Employment: Online Employment Advertisers

              Seek
              Careerone

• Jobs advertised in the major papers for the parts of Australia you are interested.
• Recruitment Agents
• Follow up any personal contacts or networks you may have in Australia.

No Payment for Sponsorship  - 457 Requirements

The Department of Immigration announced on 14 December 2015 new criminal and civil penalties and visa cancellation provisions in relation to payments for sponsorship.  \

The legislation imposes for sanctions on a person who asks for, receives, offers or provides a benefit in return for a visa sponsorship or employment that requires visa sponsorship .

The aim is to:

·         Prevent employers asking potential employees for money or other benefits for a sponsored visa position.

·         Prevent applicants from offering employes money or other benefits for a sponsored visa position.

The penalties for payment for Sponsorship:

The maximum civil penalty for individuals is $43,200 for an individual person. The maximum criminal penalty for individuals is two years imprisonment and up to $64,800. 

The maximum fine for corporations is currently to $324,000 for each criminal conviction. The maximum criminal penalty for bodies corporate is currently $216,000.

The visa holder can have their visa cancelled.

The sponsor can have their Standard Business Sponsorship cancelled.  If the employer has multiple employees on 457s, then if their sponsorship is cancelled, none of the 457 holders can work for the employer.  This can be highly disruptive for an employer. 

Do you need help?

Our team of experience Immigration Lawyers and Migration Agents look forward to assisting you with your Australian visa or appeal.

Based in Adelaide South Australia, we provide Australian Immigration advice to people and businesses from all over the world.

Training Requirements for 457 Business Sponsor Applicants

Auditable training plan – less than one year trading

New businesses that are in their first year must have an auditable training plan to demonstrate how they meet the training benchmarks.

Training Benchmarks must be met for Businesses trading for a year or more:

A business can meet the training requirement through one of two benchmarks. This can be either:

Training Contribution to Industry fund of 2% of Business Payroll: (Training benchmark A)

Recent expenditure to the equivalent of at least two per cent of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business

What is the definition of an Industry Training Fund?

Industry training funds are statutory authorities responsible for providing funding for training of eligible workers in certain industries, such as construction and mining.

You should contribute to a fund that operates in the same industry as your business.

I can not find an Industry Training Fund?

If your industry does not have an eligible training fund, you can contribute to:

• a recognised industry body that provides training opportunities for its members, provided they reserve the funds contributed for training
• a recognised scholarship fund at a university or TAFE college that supports education or training for Australians in the same or a similar industry as your business.

Recent Training Expenditure to 1% of Business Payroll: (Training benchmark B)

The expenditure must be the provision of training to employees of the business who are Australian citizens or Australian permanent residents.

Types of Training that are acceptable:

• paying for a formal course of study for your Australian employees
• funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for your Australian employees
• employing apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business
• employing a person who trains your Australian employees
• paying external providers to deliver training for Australian employees
• providing on-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating all of the following:
  • the learning outcomes of the employee at each stage
  • how the progress of the Australian employee will be monitored and assessed
  • how the program will provide additional and enhanced skills
  • the use of qualified trainers to develop the program and set assessments
  • the number of people participating and their skill and occupation.
• Expenditure on graduates who are part of a formal training program
• Expenditure on apprentices and trainees - you can count 100 per cent of the salary if they are employed under a formal training agreement. The formal training must be lodged with the relevant state or territory.
• Training provided by a franchise head office for franchisees can be acceptable if you can:
  • submit quantifiable evidence of structured training provided to your employees (for example, session plans, learning objectives)
  • make a commitment to continue to provide training to your employees
  • quantify the actual expenditure on training.

Ongoing Commitment to Training:

The employer must be able to demonstrate training expenditure for every year that they are a business sponsor.

This is very important because the Immigration Department does monitor Businesses Sponsors.

457 Business Sponsors Industry Training Contributions:

What is the definition of an Industry Training Fund?

Industry training funds are statutory authorities responsible for providing funding for training of eligible workers in certain industries, such as construction and mining.

You should contribute to a fund that operates in the same industry as your business.

I can not find an Industry Training Fund?

If your industry does not have an eligible training fund, you can contribute to:

• a recognised industry body that provides training opportunities for its members, provided they reserve the funds contributed for training
• a recognised scholarship fund at a university or TAFE college that supports education or training for Australians in the same or a similar industry as your business.

If you cannot identify an eligible training fund for your industry, you can consider the following institutions:

Bond University

Box Hill Institute

The Gordon Institute of TAFE

Griffith Business School

Hunter Institute of Technology

Illawarra Institute of TAFE

International College of Hotel Management

Kangan Institute

Melbourne Polytechnic

Queensland Construction Training Fund (BERT Training Queensland)
Restaurant & Catering Industry Association of Australia

Victoria University

William Angliss Institute of TAFE

There are a number of requirements that must be met for an employer business to become an approved business sponsor for subclass 457 visas.

The 457 Business Sponsorship criteria include:

• The business must be lawfully operating in Australia
• The business must be able to demonstrate a commitment to training Australian Citizens and Permanent Residents
• There is no adverse information known to the Department about the applicant for approval to become a sponsor

Training Benchmark

The Department has a strong focus on employers demonstrating that they provide at least a benchmark level of training to current Australian citizen and permanent resident employees.

If an employer cannot meet the training benchmark for recent expenditure on training, the training requirement can still be met by making ongoing contributions to an industry training fund.

Sponsorship undertakings

There are a number of undertakings that the employer must agree to as part of becoming an approved business sponsor. Further information about the obligations available here.

Do you need help?

Our team of experience Immigration Lawyers and Migration Agents look forward to assisting you with your Australian visa or appeal.

Based in Adelaide South Australia, we provide Australian Immigration advice to people and businesses from all over the world.