# What can I do if my employer missed the first year of training benchmark



## lihan (Mar 31, 2014)

I am looking for some suggestions for my situation.

I am on 457 visa for about 2 years. But my employer missed training benchmark for the first year. 

Now I want to apply for 186 visa, and he can't provide the evidence of training benchmark for the first year.

Is there a way to resolve this? Can we pay 2% of payroll now and count it towards the first year?

Thanks for your advices.


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## CCMS (Oct 10, 2013)

In general terms:

It depends on when the sponsorship was approved, as obligations have changed after 1 July 2013. As it is at the moment, the sponsor must satisfy the training benchmark for each and every year. You can't "backdate" the contribution.

I can't comment on your situation specifically without having access to the sponsor's documentation and evidence.


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## lihan (Mar 31, 2014)

The sponsor was approved in April 2012, does that mean we don't have to meet the training benchmark for each year of this two years? As long as the costs in second year covers the cost we should spend in the first year?

Thanks.


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## CCMS (Oct 10, 2013)

It is important that the employer has met his sponsorship obligations and has met the subclass 457 visa training requirements *in each year* he has been a standard business sponsor. This means that he must have fulfilled the requirements that he committed to when he was first granted the SBS.

In relation to a sc. 186 Temporary Residence Transition Nomination, a business that has been operating for a period of at least 12 months is required to demonstrate:

for training benchmark A, recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor

or

for training benchmark B, recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor.

For expenditure to qualify as 'recent', the evidence in regard to training expenditure must demonstrate that the expenditure was incurred in the 12 month period immediately before the lodging of the nomination. This applies regardless of the benchmark (A or B) the nominator seeks to satisfy.


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## masudparves (Jun 4, 2014)

Hi lihan,
So what did u do to skip this problem,if your employer pay 2% to training fund ? so it could be ok to apply 186 visa ?
Please let us know.
Thanks


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## matteob8610 (Nov 24, 2014)

Hi Lihan,

May I know whether your application in the end has been approved or not? What did you do?
I am in the same boat; the sum of the training even exceeds the 1% but most part of the amount has been paid during the second year.
Are we able to get the 186 Visa? My 457 visa was approved in Nov 2012.

Just let me know please.

Thank you
Matt


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## CCMS (Oct 10, 2013)

There may be a way around it if average training expenditure over the entire period is meeting one of the benchmarks. It would have to be looked at on a case by case basis.


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## matteob8610 (Nov 24, 2014)

CCMS said:


> There may be a way around it if average training expenditure over the entire period is meeting one of the benchmarks. It would have to be looked at on a case by case basis.


As I said, the expenditure is more than 1%.
The salaries are around 300k per year and in 2 years the company spent around 8k in training.
The problem is that 6 grand has been spent the last year.

i think we are right with the average.

What di you think.
I'm frustrated.

Thanks 
Matte


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## CCMS (Oct 10, 2013)

matteob8610 said:


> As I said, the expenditure is more than 1%. The salaries are around 300k per year and in 2 years the company spent around 8k in training. The problem is that 6 grand has been spent the last year. i think we are right with the average. What di you think. I'm frustrated. Thanks Matte


Like I said, those things need to be considered on a case by case basis. I can't comment on individual cases without having access to all relevant information.


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## Deh (Apr 28, 2017)

CCMS said:


> There may be a way around it if average training expenditure over the entire period is meeting one of the benchmarks. It would have to be looked at on a case by case basis.


Hi. You said that there may be a way around it. May I ask where can I find any conclusive answer? Has the tribunal ever decided in favour of a similar case or is the information on the Immi policy? Thank you in advance.


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## CCMS (Oct 10, 2013)

Deh said:


> Hi. You said that there may be a way around it. May I ask where can I find any conclusive answer? Has the tribunal ever decided in favour of a similar case or is the information on the Immi policy? Thank you in advance.


The answer is in the migration regulations ( which are freely available, but you may have to look at the the regulations as they were in force at different relevant dates) and the Procedures Advice Manual (PAMs), which is only available by subscription. Any tribunal rulings would refer to the above.

I have addressed issues like this before successfully, so another potential source is a Registered Migration Agent with relevant experience.


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