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45.1 Assessment of “lawfulness“ – overseas business
An applicant that is lawfully operating a business outside Australia and does not lawfully operate a business in Australia may apply for approval as a standard business sponsor in order to employ a 457 visa holder to work for them in Australia to establish a branch or subsidiary, or some other business activities such as joint ventures and agency distributorships. They may also seek to become an approved standard business sponsor so that they can employ a 457 visa holder to fulfil contractual obligations in Australia on their behalf. See also regulation 2.59(g) and advice on considering this criterion at section 102 Operating a business outside Australia – reg 2.68(i).
To be approved as a standard business sponsor, such an applicant must demonstrate to the satisfaction of the delegate that it is legally established under the relevant laws of the country in which they operate. This means that, if there is a business registration system under the laws of the home country, it is expected that the applicant seeking to be approved as a standard business sponsor would be registered in accordance with those laws and requirements. Applicants who operate a business in their home country without registration in a situation where there is provision for this would not be considered as meeting the “lawful” component of the ‘lawfully operating a business’ criterion in regulation 2.59(c).
The Migration regulation 1994 (Cth), PAM3, Pt 2A Div 2.16
104 Commitment to training – reg 2.68(k)
Applicants are required to have fulfilled any commitments they made in relation to the training requirement and complied with any obligations under Division 2.19 relating to their training requirements, for their most recently approved standard business sponsorship. See section 46.4 Training benchmarks – overview. If the applicant’s most recent sponsorship was approved on the basis that the applicant operated a business outside Australia (that is, they were an overseas business sponsor), this criterion will not be applicable. This is because the applicant would not have been required to make any commitment to training requirements, nor would they have been subject to any obligations relating to training.
The training obligation requires Australian sponsors to meet the training benchmarks for each year in which they had had a 457 holder working for them for all or part of that year, for a total period of three years (or six years if they have been afforded Accredited Status).
Expenditure against training benchmarks is to be assessed using an annual reporting cycle based on the anniversary date of the original sponsorship or variation approval. Officers should not attempt to assess training benchmarks on a pro-rata basis for a period shorter than 12 months.
Refeence – LEGENDCOM – Migration > 2014 > 09/05/2014 – > P. 09/05/2014 – > PAM3 – MIGRATION REGULATIONS – DIVISIONS > Sponsorship applicable to Division 3A of Part 2 of the Act – Sponsorship >VARIATION OF TERMS OF APPROVAL AS A SPONSOR
Payroll refers to the amount of money an employer pays in wages to their employees during the relevant 12 month period (as noted above, this must be the 12 months prior to lodging the recent application or the most recent full financial year).
Payroll expenditure includes any wages, remuneration, salary, commission, bonuses, allowances, superannuation contributions (mandatory or otherwise) or eligible termination payments that are defined as wages in the Act relating to payroll tax in the relevant State/Territory.
For the purposes of the training benchmarks, irrespective of whether they are included for payroll tax purposes or not, payments made to contractors or sub-contractors should be included as payroll expenditure if any work provided by the contractor is related to the service/product provided by the sponsor’s business (for example, the contractor is a bricklayer and the applicant is a construction company).
In circumstances where a contractor or subcontractor has been contracted to provide materials, in addition to work, the cost of materials should be itemised and excluded when calculating payroll expenditure (for example, the contractor is providing both bricklaying services and bricks to be used for the applicant’s project, the applicant should deduct the cost of the bricks purchased).
Payments made to contractors, such as an accountant or a migration agent, who provide a service to the applicant that is not directly related to the service the applicant provides to its customers do not need to be included as payroll expenditure.
Note: If payments to contractors are included as payroll expenditure, any eligible training expenditure in respect of the contractors may also be counted towards meeting the benchmarks.
Reference – https://legend.online.immi.gov.au/Migration/2017/03-02-2017/legend_current_mp/Pages/_document00002/level%20100047.aspx?searchstring=(%22payroll%22)#Trainingbenchmark
Training benchmark A – industry training fund (2% of the payroll)
Training benchmark B – training employees (1% of the payroll)
Example of training calculation at the time of SBS variation.
If the nominator’s most recent standard business sponsorship (SBS) was approved on 24/01/2013 and was valid until 24/01/2016 so in order to meet the requirements as outlined in Regulation 5.19(3)(f)(i)(A), the nominator will need to demonstrate they have ‘fulfilled any commitments’ they made relating to meeting either Training Benchmark A or B, in full, for every sponsorship year an UC-457 visa holder was approved to be nominated by the nominator.
For example – If on 10/02/2014, an UC-457 visa holder was approved to be nominated by the nominator for a period of 3 years. The nominator is therefore required to demonstrate meeting either Training Benchmark A or B for the following sponsorship periods:
24/01/2014 to 23/01/2015
24/01/2015 to 23/01/2016
For more details please contact
Manmohan Makkar (MARN 1388274) – Specialised in employment visas
Ph: 02 96354744