# Employer wants the employee to payback the 482 costs if the employee leaves



## lambruscokid (Jun 6, 2018)

Hello,

An employer has offered me a TSS 482 visa, but they put a condition in the contract to make me pay back the visa costs (visa fee plus their migration agency fees) in case I leave the company before 2 years.

Is that legal?

Thanks!


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## CCMS (Oct 10, 2013)

The employer has to pay all costs associated with the sponsorship and nomination and cannot claim back any of those costs from the employee.

They do not have to pay for the costs of the visa application. As for the clause in your contract, check with FairWork about the legality of it. If it is not legit, you can be guaranteed that DHA will pick up on it too.


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## PaulDG (Nov 16, 2016)

*Fair enough*



lambruscokid said:


> Hello,
> 
> An employer has offered me a TSS 482 visa, but they put a condition in the contract to make me pay back the visa costs (visa fee plus their migration agency fees) in case I leave the company before 2 years.
> 
> ...


Put yourself in the employers place. You outlay a fairly large some of money to hire someone to do a job for you, but then they decide to quit leaving him you a large hole in your budget when you have to re-advertise the position, interview and finally place someone. Arrange a new visa, travel and hotel accommodation is not a cheap exercise. So suck it it up princess and give our employers a fair go. 
Or if you don't like the contract, then don't sign it. Simples


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## lambruscokid (Jun 6, 2018)

Thank you CCMS

What about the migration agency costs for the visa application?

I am forced to use their migration agency, so I think is unfair to pass this fees to the employee if he leaves, but maybe it's legal.


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## CCMS (Oct 10, 2013)

lambruscokid said:


> Thank you CCMS
> 
> What about the migration agency costs for the visa application?
> 
> I am forced to use their migration agency, so I think is unfair to pass this fees to the employee if he leaves, but maybe it's legal.


They can't force you to use any particular agent, but of course they don't need to sponsor you either, if you are not comfortable with their requirements.

Personally I would not be too comfortable with their arrangement. It may all be perfectly legit, but I have seen too many scams in this area and as a sc. 482 holder you will be in a pretty vulnerable position. Do some research on the employers and the agency they are using to make sure it is all above board.

I cannot advise you on the legality of that clause in the contract, but it is not all that unusual and understandable from the employer's point of view, because of the amount of money they have to spend on sponsoring you. In the past I have handled many cases for 187 visas that had a similar clause. I can't tell you about the 482 visa without researching it.

I can't tell you either if they are actually able to enforce that clause, if you have a valid reason for leaving the employment. Obviously they want to protect themselves against people getting sponsored by them at great expense and then shooting through after a few months.

Do your research and be clear about your expectations and future plans. Check with FairWork about the contract.


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## lambruscokid (Jun 6, 2018)

PaulDG said:


> Put yourself in the employers place. You outlay a fairly large some of money to hire someone to do a job for you, but then they decide to quit leaving him you a large hole in your budget when you have to re-advertise the position, interview and finally place someone. Arrange a new visa, travel and hotel accommodation is not a cheap exercise. So suck it it up princess and give our employers a fair go.
> Or if you don't like the contract, then don't sign it. Simples


It was necessary to insult?
Put yourself in the employee place, employers exploit people using this abusive clauses.


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## lambruscokid (Jun 6, 2018)

CCMS said:


> They can't force you to use any particular agent, but of course they don't need to sponsor you either, if you are not comfortable with their requirements.
> 
> Personally I would not be too comfortable with their arrangement. It may all be perfectly legit, but I have seen too many scams in this area and as a sc. 482 holder you will be in a pretty vulnerable position. Do some research on the employers and the agency they are using to make sure it is all above board.
> 
> ...


Thank you very much for your help Nick! Very useful


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## CCMS (Oct 10, 2013)

lambruscokid said:


> Thank you very much for your help Nick! Very useful


You're welcome. Just be careful what you get into.

Unfortunately there are plenty of unscrupulous employers who will blatantly exploit temporary visa holders.What is worse is that there are dodgy migration agents out there colluding with these crooks.Hospitality seems to be one of the main areas of concern, but it is widespread across other industries as well.

On the other side of the coin, there are plenty of good employers out there who sponsor people in good faith only to be burnt by them , because they shoot through at the first opportunity.

It's a jungle out there.


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## PaulDG (Nov 16, 2016)

Australian employers have every right to demand full reimbursement of costs from any prospective overseas employee in their contracts. No argument.


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## lambruscokid (Jun 6, 2018)

PaulDG said:


> Australian employers have every right to demand full reimbursement of costs from any prospective overseas employee in their contracts. No argument.


Well, you're wrong. No argument.


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## PaulDG (Nov 16, 2016)

lambruscokid said:


> Well, you're wrong. No argument.


I am wrong am I?
You are freaking out because you don't like the conditions of employment and you want reassurance from someone in Australia about your concerns. I am merely pointing out that Australian employers have every right to protect their investment by demanding reimbursement of visa costs if the person they employed to do a certain task skips on them before the job is finished. A very fair call. And like I said before, if you don't like it, you don't have to accept it.


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## lambruscokid (Jun 6, 2018)

PaulDG said:


> I am wrong am I?
> You are freaking out because you don't like the conditions of employment and you want reassurance from someone in Australia about your concerns. I am merely pointing out that Australian employers have every right to protect their investment by demanding reimbursement of visa costs if the person they employed to do a certain task skips on them before the job is finished. A very fair call. And like I said before, if you don't like it, you don't have to accept it.


You are the one freaking out, insulting me for no reason. I'm pretty calm.
And yes, you're wrong because employers don't have the right to claim whatever they want just because it's in a contract and it's signed, they have to respect the law. And fortunately Australia has laws to protect employees from employers abuse, even if you don't like it.


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## lambruscokid (Jun 6, 2018)

CCMS said:


> You're welcome. Just be careful what you get into.
> 
> Unfortunately there are plenty of unscrupulous employers who will blatantly exploit temporary visa holders.What is worse is that there are dodgy migration agents out there colluding with these crooks.Hospitality seems to be one of the main areas of concern, but it is widespread across other industries as well.
> 
> ...


You're right, it's a jungle. And I had both experiences here in Australia, good employers who care about their employees, and others that they're total slavers.


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## Mania (Sep 7, 2016)

PaulDG said:


> I am wrong am I?
> You are freaking out because you don't like the conditions of employment and you want reassurance from someone in Australia about your concerns. I am merely pointing out that Australian employers have every right to protect their investment by demanding reimbursement of visa costs if the person they employed to do a certain task skips on them before the job is finished. A very fair call. And like I said before, if you don't like it, you don't have to accept it.


And Paul, perhaps it would be useful to add to the community rather then to antagonise, hypocritical of me to say, but, the point stands non the less.

"
Not recover from, transfer or charge certain costs to another person

You must not take any action or seek to take any action that would result in the transfer or charging of costs (including migration agent costs) to another person, such as a sponsored visa holder or their sponsored family members.

This includes costs that relate to:
the recruitment of the person you sponsored
becoming or being a sponsor, or a formerly approved sponsor.

This obligation:
starts on the day the sponsorship is approved
ends on the following two events:
you cease to be an approved sponsor
you are no longer sponsoring a visa holder.
Sponsors are also required to pay certain costs associated with becoming a sponsor and not pass these costs, in any form, onto another person.

These include:
cost of sponsorship charges
migration agent costs associated with the lodgement of sponsorship and visa applications
administrative costs and any sundry costs an employer incurs when they conduct recruitment exercises, including:
recruitment agent fees
migration agent fees
the cost of job advertising
screening of candidates, short listing, interviews and reference checks
salaries of recruitment or human resource staff
the cost of outsourcing background checks, police checks and psychological testing where they relate to an employer determining an applicant's suitability for the position
training of new staff
responding to queries for prospective candidates, and advising unsuccessful applicants
travel costs for the sponsor to interview and/or meet the applicant either overseas or in Australia."


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## CCMS (Oct 10, 2013)

PaulDG said:


> Australian employers have every right to demand full reimbursement of costs from any prospective overseas employee in their contracts. No argument.


Actually they don't have that right at all. In fact it is illegal to make the employee pay for anything to do with recruitment, sponsorship or the nomination. The employee may only pay for the visa application costs. This is clearly stated on the relevant section on the DHA web site.


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## CCMS (Oct 10, 2013)

PaulDG said:


> I am wrong am I?
> You are freaking out because you don't like the conditions of employment and you want reassurance from someone in Australia about your concerns. I am merely pointing out that Australian employers have every right to protect their investment by demanding reimbursement of visa costs if the person they employed to do a certain task skips on them before the job is finished. A very fair call. And like I said before, if you don't like it, you don't have to accept it.


Why the hostility? The OP is asking a perfectly reasonable question. I would want reassurance as well in a situation like this.

I cannot advise on contract law, but the DHA does scrutiny these contracts and the nomination will fail if the contract does not comply.

The clause in itself is not unusual, but I am not sure if it is allowed in the context of a 482 application. As stated before, the OP should check with FairWork to put his mind at ease.

My main concern is that the agent is employed by the sponsor. On the one hand that means that all visa costs will be covered by the sponsor ( unless the employer leaves the employer within a certain period). On the other hand, the agent may not be representing the visa applicant's best interests as they are beholden to the employer.


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## ampk (Sep 21, 2013)

I am going through a EBA at the moment. Our company wants to put very large training bonds on staff, so I did some research.

I think you will find a few things interesting.

The company can not make you repay any amount that is not primarily for your benefit. * I think you will find that your employer has put forward to the Immigration Department that they and Australia will benefit by giving you a visa.

Your agreement as in the contract or our case, written in to the EBA to repay the money can be withdrawn at any time. * This should stop them from taking money from your termination payment (+$50K penalty if they do). This does not mean you don't have to pay the money back - but it is up to them to legally get it back from you on agreed terms.

Deductions from wages or salary: when are they permitted under the Fair Work Act? - Employment and HR - Australia


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## lambruscokid (Jun 6, 2018)

Thank for the answers!

Apparently they want all the costs to be paid back. The nomination, the application, and the migration agency costs for both. So it's not legal.

Cheers


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## CCMS (Oct 10, 2013)

lambruscokid said:


> Thank for the answers!
> 
> Apparently they want all the costs to be paid back. The nomination, the application, and the migration agency costs for both. So it's not legal.
> 
> Cheers


That's is most definitely illegal. I can't see how a nomination could possibly be approved if these conditions are in the employment contract. Furthermore on the application form the sponsor has to specifically declare that they won't be doing this sort of thing.

There are plenty of scams like this around where people are employed on the promise of a sponsorship, then are made to pay all the application costs and get underpaid for their work as a bonus.

I would look for another sponsor...


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## Antoine1804 (Jun 13, 2018)

It is a contract, by signing it you abide to the company policy. If you're not happy with it, then do not sign it. It's as simple as it gets. There is no obligations for you to sign.
What's illegal however if having your employer requesting for rembursement after you left assuming this was not appearing in your contract at the first instance. PaulDG was a bit raw but right in his advice.


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## CCMS (Oct 10, 2013)

Antoine1804 said:


> I've had the same condition in my contract. Got legal advice on it and it is 100% legal.
> It is a contract, by signing it you abide to the company policy. If you're not happy with it, then do not sign it. It's as simple as it gets. There is no obligations for you to sign.
> What's illegal however if having your employer requesting for rembursement after you left assuming this was not appearing in your contract at the first instance. PaulDG was a bit raw but right in his advice.


The facts on the matter are clear and readily available.

The contract must meet FairWork requirements.

Under no circumstances is it legal for the sponsor to try and retrieve ANY costs associated with the sponsorship and nomination applications, no matter what the contract says.

Contract law and migration law are 2 seperate areas of law. Migration law is very specific about this issue.


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## lambruscokid (Jun 6, 2018)

Antoine modified his original message, I will reply anyway about what he said about the legal advice:

It's interesting, because I had legal advice too, and the lawyer said exactly what Nick says.

No matter what's on the employment contract even if you sign it, clauses against the law cannot apply.


Anyway, the company was too suspicious with other weird clauses and I finally accepted another company offer with way better conditions and without these kind of clauses. But this information will be very useful for others in the same situation. Thanks!


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## CCMS (Oct 10, 2013)

lambruscokid said:


> Antoine modified his original message, I will reply anyway about what he said about the legal advice:
> 
> It's interesting, because I had legal advice too, and the lawyer said exactly what Nick says.
> 
> ...


I think you made the right decision and congratulations on doing proper research and standing up for your rights.

This threat also highlighted how little understanding there is of migration issues in general and this issue in particular in the wider community.


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## lambruscokid (Jun 6, 2018)

CCMS said:


> I think you made the right decision and congratulations on doing proper research and standing up for your rights.
> 
> This threat also highlighted how little understanding there is of migration issues in general and this issue in particular in the wider community.


Yes it does!
Thank you very much for your help!

Cheers


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