Global Executive Mobility more than just a people issue

Transcription

1 Global Executive Mobility more than just a people issue Andrew Ball, Partner, Workplace Relations, Employment & Safety Jock McCormack, Partner, Tax Chris Headon, Senior Associate, Intellectual Property & Technology 1 Date of presentation

2 Increasing trend of Global Executive Mobility 21 February

3 Thousands Increasing trend of Global Executive Mobility 50 Migration Program Statistics Employer Sponsored / / / / /2012 Source: 21 February

4 Increasing trend of Global Executive Mobility Number of 457 visas granted in 2011/12 by Major Group of the nominated occupation Source: Department of Immigration and Citizenship 457 State/Territory summary report , pg 8 21 February

5 Increasing trend of Global Executive Mobility More than just a skills shortage Developing leaders of the business Attracting and retaining talent Transferring knowledge Dealing with emerging markets Insert filename here Date of presentation 5

6 Planning for Global Executive Mobility Employment Law Immigration Employee Safety & Security Local, National, International Regulation Taxation 21 February

7 Global Executive Mobility When do Australian employment laws apply? Long Service Leave Documentation 21 February

8 Compliance with employment laws Australian assignment Scenario Foreign corporation home country employer Foreign citizen employee Australian corporation host company Fair Work Act 2009 (Cth) National system employer Constitutional corporation Foreign corporation Foreign corporation will be required to comply with the Fair Work Act February

9 Compliance with employment laws Australian assignment Implications? National Employment Standards eg minimum wages, annual leave, personal leave, parental leave, requests of flexible working arrangements Modern award coverage Provisions relating to termination eg unfair dismissal and adverse action Insert filename here Date of presentation 9

10 Compliance with employment laws Australian assignment Gardner v Milka Ware International Limited Gardner commenced working for Milka in New Zealand Gardner split his time 50/50 in Australia and New Zealand At time of termination Mr Gardner was working in Australia Milka objected to the unfair dismissal application New Zealand "registered, directed and owned" company Traded in New Zealand only Employed Mr Gardner in New Zealand Paid Mr Gardner in New Zealand dollars into Mr Gardner s New Zealand bank account 21 February

11 Compliance with employment laws Australian assignment Fair Work Australia The fact that Milka was incorporated in New Zealand means that it is a foreign corporation within the meaning of s51(xx) and therefore, to the extent that it employs employees to perform work in Australia, it is a national system employer as defined in s14 of the Fair Work Act 21 February

12 Compliance with employment laws Overseas assignment Scenario Australian corporation home country employer Australian citizen employee Foreign corporation host company Can the Fair Work Act 2009 (Cth) apply in this scenario? Fair Work Act 2009 (Cth) Australian employer Australian based employee Significant Fair Work Act 2009 (Cth) application 21 February

13 Compliance with employment laws Overseas assignment Implications? National Employment Standard eg minimum wages, annual leave, personal leave, parental leave, requests of flexible working arrangements Modern award coverage Provisions relating to termination eg unfair dismissal and adverse action 21 February

14 Long Service Leave Scenario Significant service within a group of companies Assignment to Australia Assignment and employment ends in Australia Long service leave principles Service with one group company is considered service with another group company Service is deemed to be continuous Foreign corporations are included Overseas service will be considered 21 February

15 Long Service Leave International Computers (Australia) Pty Limited v Weaving Weaving commenced with 3 years of service in Victoria Followed by 1 year of service in Sydney Followed by 2 years of service in South Africa Followed by 6 years of service in the UK Followed by 3 years of service in Sydney Full Bench of the Industrial Relations Commission of NSW We consider that it is not necessary that all service should be substantially connected with NSW, but that it is essential that, at the time the relevant event occurred, the worker s service may be fairly said to be NSW service. There is no doubt that at the relevant time in this case the worker s service had a substantial connection with NSW 21 February

16 Long Service Leave Rogers v Taubmans Pty Limited Rogers was employed by various wholly owned subsidiaries of Barlow Ltd which was incorporated in South Africa since 1984 In 1996, Barlow acquired Taubmans, an Australian company Rogers was assigned to work for Taubmans in Sydney from 1997 to 2000, after which he returned home Court Not a substantial connection with NSW Clear intention of temporary service Rogers considered himself an expat Job offers back in South Africa 21 February

17 Documentation Parties The employee; The home country employer; and The host company Options Tripartite agreements Assignment letter and inter company agreement 21 February

18 Documentation Conditions precedent Immigration related obligations Duration of assignment Compensation Relocation assistance Repatriation assistance Tax assistance Termination of the assignment Position the employee will return to after repatriation Governing law 21 February

19 QUESTIONS Insert filename here 19 Date of presentation

20 Global employee mobility - tax issues

21 Global employee mobility tax issues Balancing Employer & Employee advantages and risks PE risks / Treaty benefits; Residence Withholding tax, Superannuation, FBT, Payroll tax, GST Employee Share/Option Plans (ESOP) LAFHA Pre-arrival planning, bonuses, ESOP Recent rulings, ATO activities International competitiveness for Financial Centres/Executives, e.g. France, Netherlands 21 February

22 Tax issues relating to global employee mobility Relevant for cross border employment arrangements Very common occurrence as employees are globally mobile e.g. where either: employees leave Aust to work for related entity outside Aust; or employees come to Aust to work for related Australian entity Mindful of tax consequences for employer and employee in Australia and the other country 21 February

23 Tax issues relating to global employee mobility Con't Tax issues for employer: Does the employer have an obligation to pay tax in the country of employment? Is there a permanent establishment (PE) for the employer in the country in which the employee is based? e.g. pursuant to the Aust/NZ DTA there may be PE where: fixed place of business may be satisfied where foreign employees are present at a customer's premises or home office place of management, branch, an office, a factory or a workshop 21 February

24 Tax issues relating to global employee mobility Con't Building site or a construction, installation or assembly project which lasts for more than 6 months PE deemed where services performed by an individual present for more than 183 days in any 12 month period and more than 50% of gross revenues attributable to active business activities PE deemed where substantial equipment is operated for a period exceeding 183 days in any 12 month period PE not include maintenance of stock for the purpose of storage, display or delivery provided that it is of a preparatory or auxiliary character, etc PE deemed where a person (other than independent person) acts on behalf of the company to substantially negotiate or conclude contracts 21 February

25 Tax issues relating to global employee mobility Con't May be possible to mitigate this PE risk secondment to local subsidiary? What are the employers' tax obligations in respect of the employee in the country of employment? May require registrations for: withholding tax superannuation obligations fringe benefits payroll tax workers compensation GST implications 21 February

26 Tax issues relating to global employee mobility Con't Tax issues for foreign employees working in Australia: What are the employees' tax obligations in the new country of employment? Generally, foreign employees will only be taxed in Australia on the remuneration received in respect of services performed in Aust However, relief may be available if there is an applicable double tax agreements Residence status 21 February

27 Tax issues relating to global employee mobility Con't e.g. Aust/NZ DTA remuneration received by a NZ employee in respect of services performed in Aust shall only be taxed in NZ (ie not in Aust) if: NZ employee is present in Aust for a period not exceeding 183 days in any 12 month period; remuneration is paid by or on behalf of NZ company; and remuneration is neither borne by nor deductible in determining the profits attributable to a PE which NZ company has in Aust May apply if employee is seconded to Aust company 21 February

28 Employee share schemes General rule discount given (value of the share/right less the consideration paid) will be taxed at the time the share/right is granted Deferral of taxing point where: genuine risk of forfeiture of the shares/rights at the time they are granted employee is employed by the company/subsidiary at the time shares/rights are acquired shares to be acquired must be ordinary shares in the employer/holding company predominant business of the company is not the acquisition, sale or holding of shares, securities or other investments 21 February

29 Employee share schemes Con't immediately after employee acquires share/right employee must not hold a beneficial interest in more than 5% of the shares in the company or be in a position to cast or to control the casting of more than 5% of the maximum number of votes that might be cast at a general meeting for share schemes (not rights), at least 75% of long term permanent employees must be able to acquire shares If deferral conditions are satisfied, tax is deferred until the earlier of: ceasing of employment 7 years from the granting of shares/rights when forfeiture conditions and restrictions on sale are lifted 21 February

30 Employee share schemes Con't Genuine risk of forfeiture eg genuine performance hurdles or where the shares/rights are subject to forfeiture on termination of employment usually no risk of forfeiture once shares/rights have vested Reporting requirements Employers required to provide reports to ATO by 14 August and employee by 14 July, following relevant year end 21 February

31 Living Away From Home Allowance (LAFHA) Recent Changes Substantial reforms to the LAFHA rules effective from 1 October 2012 Concessional treatment for LAFHA will be limited to employees (other than those working on a fly-in or fly-out basis) who: maintain a home in Australia (at which they usually reside) for their immediate use and enjoyment at all times while required to live away from home for work; incur expenses for accommodation and food or drink for a maximum period of 12 months while living away from home; and have provided their employer with a declaration about living away from home. 21 February

32 Living Away From Home Allowance (LAFHA) Recent Changes If concession available - taxable value of the LAFHA benefit provided to the employee will be calculated as the amount of the fringe benefit reduced by any exempt accommodation component and any exempt food component. There are transitional rules which may apply to employees employed prior to the announcement of these changes on 8 May 2012 at 7.30 pm (AEST). 21 February

33 Recent ATO Rulings ATO ID 2013/8 Background Employee is promoted but is required to work over 3,000 km away from their residence Under their agreement, employer can't require employee to move Employee can't perform new role from their current residence as the employee is on call and must be there within 2 hours Employee changes their residence to move near their new role Employer reimburses employee for removal costs Section 58B exempts removal costs from FBT where the employee is 'required' to change their residence to perform their duties 21 February

34 Recent ATO Rulings ATO ID 2013/8 Issue if an employee changes their residence to be closer to where they work (even though it is not required by their employee), is the employee still 'required' to change their residence in order to perform their duties for section 58(1)(B)(iii) FBT Act? Decision - Yes. Even though the employer does not require the employee to change their residence, it is considered that the duties of the employee's employment are such that the employee is 'required' to change their residence 21 February

35 Recent ATO Rulings TR 2013/1 TR 2013/1 Income tax: the identification of 'employer' for the purposes of the short-term visit exception under the Income from Employment Article, or its equivalent, of Australia's tax treaties. The 'substance over form' approach The written contract is essential for the existence of an employment relationship, however the parties cannot deem their relationship to be something it is not. The written terms of an employment contract must be consistent with the actual behaviour of the parties for the purposes of: establishing whether the relationship is properly one of employment; and identifying the employer in respect of the short-term visit exception. 21 February

36 Recent ATO Rulings TR 2013/1 The key indicators for identifying the employer: who has ultimate, or day-to-day, control over the worker? are the services rendered by the worker an integral part of the business activities carried on by the enterprise? the terms of engagement Does the employee have entitlements to leave? Who has obligations to deduct PAYG instalments, pay superannuation contributions and workers' compensation insurance? who bears the responsibility or risk for the services of the worker? The identity of the employer is critical to second condition of the short-term visit exception - the employer must not be a resident of the State in which the employment is exercised. 21 February

37 QUESTIONS Insert filename here 37 Date of presentation

38 Immigration 21 February 2013

39 Do you have a Visa? - Laws of the Land Immigration laws vary from country to country but the common theme is the balance between global trade and commerce with the protection of national security and the local labour market. In general all foreign nationals need a Visa to enter another country's territory. Many countries have bi-lateral agreements affording privilege, reciprocal waivers or special access rights to citizens from particular countries. Australia grants special streamlined application procedures, relaxed eligibility criteria and fast track processing to particular nations - mostly APEC, english speaking nations and parts of the EU. Make sure you check the reciprocal arrangements first. They can help you choose the best option for transfer/secondment. Insert filename here Date of presentation 39

40 Choose Wisely In light of recent national security incidents and terrorist acts, as well as the GFC and the pressure on local labour markets, nations are now applying must stricter entry criteria and are more aggressively auditing and prosecuting unlawful employment. Don t risk your company's reputation by getting it wrong on Visas. You can face fines, blacklisting for future applications and damage to your company's relationship with government. In some jurisdictions there are strong criminal penalties for breaches of Visa conditions and false information. It is often easy to find a quick Visa solution to but if the Visa is not right for the circumstances your company will pay dearly. Use of tourist visas, student visas and work and holiday visas are not a substitute for the appropriate corporate or business Visa. Short term Visas are often the only way to get a person quickly in country. An urgent negotiation, a major deal, a desperate client. In Australia the types of Visas available for quick trips are not appropriate for long term projects or assignment. Make sure you talk to us first. Insert filename here Date of presentation 40

41 The Department of Immigration and Citizenship In Australia the Department of Immigration and Citizenship is responsible for the assessment and granting of Visas. They process about 13,000 Visa applications per day. Getting in early and ensuring your documentation is accurate and complete on is the key. DIAC also monitors compliance, especially Visa sponsors (your company) every 6 to 12 months to make sure foreign nationals are complying with their Visa conditions. Employees who breach their conditions can face severe civil and criminal penalties. Many Visas can be applied for online (this speeds things up) but the ability to apply online depends on the citizenship of the applicant. In addition Visas granting the same rights often have different names depending on the country the applicant is from so it is vital to make sure you are applying for the right type of Visa and that you (and your family) satisfy all of the criteria. Insert filename here Date of presentation 41

42 Skills Shortage and a one way trip Australia is facing massive skills shortages especially in the technical and trade occupations. There is great demand by business for skilled workers especially for large-scale infrastructure projects. Managers and Executives are highly sought after, especially in marketing, public relations, ICT and engineering roles. Multinationals continue to transfer skilled managers and executives to Australia to investigate new opportunities and to grow existing business in the relatively stable Australian economy. The good news is that only about 10% of Secondees to Australia leave the company upon returning home. This is one of the lowest levels of secondee attrition for in the world..however, many choose to stay and become Permanent Residents, even Australian Citizens. (This seems to happen more for my clients with offices in sunny Queensland). Insert filename here Date of presentation 42

43 The Visas Business Travel There are up to 100 different types of Visas available in Australia but for business people there is a limited selection. (Less than 5). 1. Electronic Travel Authority (ETA) subclass 977 A fully electronic visa (no stamp or label in your passport) to facilitate travel by citizens of countries who have been assessed (statistically) as most likely to be 'genuine business visitors' and unlikely to overstay. An ETA is for short term business purposes only: attending educational or business related meetings, seminars, conventions, conferences and networking; informal studies or training. Insert Date of presentation 43

44 Conditions Valid for 12 months (or expiry of Passport if earlier) May enter Australia and stay for a maximum of 3 months at a time. No limit on number of entries. Does not allow work except in exceptional circumstances, if urgent or highly skilled or specialised and no more than 6 weeks. The criteria for permission to work is extremely tough and just because you or your business provides a very specialised service or unique product offering this is not enough. The threshold is high - Think Astronaut, nobel prize winning, surgeon, super model. Insert filename here Date of presentation 44

45 Eligible Nationals Andorra Hong Kong Norway Austria Ireland Portugal Belgium Italy Republic of San Marino Brunei Japan Singapore Canada Liechtenstein South Korea Denmark Luxemburg Sweden Finland Malaysia Switzerland France Malta Taiwan Germany Monaco United Kingdom Greece Netherlands United States Vatican City *Online Application Available Insert filename here Date of presentation 45

46 Something longer term? Character and security check (criminal background), health criteria and intention of visit. If you want a longer term ETA there is a type available for the life of the passport (same conditions 3 months at a time) and same conditions. Back to Back ETA's Not good. Must spend some time outside of Australia. Who is eligible? What is the cost? How long does it take to apply and obtain? What about my Family? Dual Nationals? (This is especially important for permanent Visas) Insert filename here Date of presentation 46

47 Cost Service Charge of $20 AUD Time Less than an hour for online. Same or next day for airline or travel agent. The Visa is recorded electronically on the Department of Immigrations' Visa database so all you need to do is present your passport to Immigration upon arrival. (Always worth bringing a print out as well just in case). Insert filename here Date of presentation 47

48 Example ETA >>>>>>>>> ETA APPROVAL 17FEB13/1754 FAMILY NAME Johnson... AUSTRALIAN GOVT GIVEN NAMES Joseph James PASSPORT ISSUED GBR EXPIRY DATE 17JAN2016 DATE OF BIRTH 12OCT1947 SEX M COB GBR TYPE OF TRAVEL BUSINESS ETA... ENTRY STATUS 977 ETA BUSINESS (SHORT)... AUTHORITY TO ENTER AUSTRALIA VALID TO... 17FEB PERIOD OF STAY 03 MTHS... MULTIPLE ENTRY...EMPLOYMENT PROHIBITED. ETA APPROVED. Insert filename here Date of presentation 48

49 Not on the ETA list - evisitor An ETA (Visitor) (subclass 976) visa is designed for people who are outside Australia and want to visit Australia for holidays, tourism, recreation or for informal study. Not on the ETA List or.. Subclass 651 evisitor Also an electronic Visa, same conditions and criteria as the ETA 3 months on each occasion over 12 month period. Generally for Europeans. No application fee and no need for a travel agent or airline. Individual or their company can apply online themselves. Insert filename here Date of presentation 49

50 evisitor Eligible Nationals Andorra Ireland Republic of San Marina Austria Iceland Romania Belgium Italy Slovakia Bulgaria Latvia Slovenia Cyprus Lichenstein Spain Czech Republic Lithuania Sweden Insert filename here Date of presentation 50

51 Subclass 456 Business Short and Long Stay Subclass 456 Business Short and Long Stay Not eligible for ETA or evisitor (Higher risk country) India, South Africa, People's Republic of China. Written application, same conditions and criteria. (Cost $110) The Stats: million visitors annually million ETAs and 500,000 evisitors ,000 Business visits. Insert filename here Date of presentation 51

52 457 Visa The 457 is the most well known or perhaps 'infamous' (and poorly understand) Visa. The most common and suitable longer term Visa for secondments and transfers (1 day to 4 years). The 457 is about allowing foreign nationals to work in areas of genuine need (skills shortage) without adversely affecting opportunities for Australians for gainful employment. It is designed to enable employers to address labour shortages by bringing in genuinely skilled workers where they cannot find an appropriately skilled Australian. The subclass 457 visa is a temporary Visa that allows businesses to employ overseas workers for up to 4 years in skilled occupations only. Inser filename here Date of presentation 52

53 Allows Subclass 457 visa holders can: work in Australia for a period of between one day and 4 years bring any eligible dependants with them to Australia dependants can work and study enter and exit Australia as many times as they like over the Visa period. Insert filename here Date of presentation 53

54 Criteria English Most primary applicants who are sponsored by a standard business sponsor must demonstrate that their level of English proficiency is equivalent to an IELTS test score of at least 5 in each of the 4 test components of speaking, reading, writing and listening. Exemptions: Passport holders from Canada, New Zealand, the Republic of Ireland, the United Kingdom or the United States of America. The nominated occupation is a highly skilled occupation that is on the gazetted list of English language exempt occupations available on the department s website: A salary that exceeds the English language requirement exempt amount and the grant of the visa is in the interests of Australia. This amount is currently set a gross base salary of AUD $92,000. The nominated occupation does not need a level of English language proficiency for grant of registration, licence or membership, and the applicant has completed at least 5 years of continuous full time study in a secondary and/or higher education institution where instruction was conducted in English. 21 February 2013

55 Health High or low risk country. Tuberculosis screening and x-rays, blood tests. Conducted by authorised provider. Age No age limit but be wary of the 50 year limit for ENS Permanent Residency Pathway. Character and Travel History Lived in for more than 3 months over past 5 years. Insurance Private Health Insurance. Insert filename here Date of presentation 55

56 457 Stages Application stages 1. Sponsorship Approval as a standard business sponsor. 2. Position Nomination Approval of the eligible occupation and position (conditions) 3. Visa Application Individual applicant meets health, security, language, character requirements. DIAC 21 Day target for processing and decision. My fastest 2 days, longest 3.5 months. Sponsorship Position Nomination Visa Application 21 February

57 Step 1 - Sponsorship The purpose of the sponsorship stage is to: identify the details of the business applying for standard business sponsorship gain attestation from the employer, where the employer is operating a business in Australia, that the business has a strong record of, or a demonstrated commitment to: employing local labour non-discriminatory employment practices assess the employers training practices where they are an Australian based business. to ensure the employer has a strong record of and commitment to training Australians. (Training Benchmark A and B) The hidden cost. Sponsorship is valid for 3 years and you can sponsor an unlimited number of workers no quota. Insert filename here Date of presentation 57

58 Sponsorship Requirements for approval To be approved as a standard business sponsor your business must meet the following requirements. These requirements apply to all applicants whether they are individuals,businesses, in or outside Australia with one exception. The exception is that overseas standard business sponsors are not subject to training requirements and attestation. you must be lawfully operating a business in or outside Australia if you are lawfully operating a business in Australia and you have traded for 12 months or more you must meet the prescribed training benchmark if you are lawfully operating a business in Australia and you have been trading for less than 12 months, you must have an auditable plan to meet the prescribed training benchmark if you are lawfully operating a business in Australia, you must attest, in writing, that you have a strong record of, or a demonstrated commitment to both of the following: employing local labour non-discriminatory work practices if you are lawfully operating a business overseas but not in Australia, you must be seeking to be approved as a standard business sponsor with the intention of sponsoring a person under the subclass 457 visa program to either: establish, or assist in establishing, on your behalf, a business operation in Australia with overseas connections, or fulfil, or assist in fulfilling, your contractual obligation. there is no adverse information known to the department Insert filename here Date of presentation 58

59 Obligations of Sponsors Co-operate with inspectors Equivalent terms and conditions of employment (except where salary in excess of $180,000 AUD). Comply with Fair Work Act. Travel Costs to leave Australia. Records. Costs incurred by Commonwealth to remove unlawful noncitizen. Notifying and keeping Department informed of prescribed events. Insert filename here Date of presentation 59

60 Step 2 - Nominating the Position Employer nominates a position The approved sponsor nominates a skilled worker to fill the position. The skilled worker must be paid the appropriate market salary for the position in Australia. The position must be an eligible occupation (CSOL). A nomination is valid for up to 12 months unless the sponsorship ceases beforehand. Demonstrating Market Salary Salary survey, existing employee contracts. Compliance with Fair Work Act. Insert filename here Date of presentation 60

61 Step 3 Visa Application Who can apply for a subclass 457 visa? You can apply for a subclass 457 visa if you: have been nominated by an employer to work in Australia under standard business sponsorship and you have been advised by that employer to apply for your visa; or have been nominated to work in Australia on the basis of a transfer within you company and have been advised by your employer to apply for your visa; or are a member of the family unit of a primary visa applicant who is seeking to be granted a subclass 457 visa on the basis that they meet the primary visa requirements. Condition 8107 Condition 8107 requires that as a primary holder of a subclass 457 visa you must: work in the occupation for which you were nominated work for the sponsor, or an associated entity of the sponsor, who nominated the position you are working in, and not cease employment for a period of more than 28 consecutive days. A Visa holder is considered to have ceased employment when either they or their employer gives notice of intention to cease employment and the date of the notice of intention to cease employment has passed. (28 days to find another Sponsor). Condition 8501 Condition 8501 requires subclass 457 visa holders to maintain adequate arrangements for health insurance while in Australia. Insert filename here Date of presentation 61

62 Example Visa Grant Extract Visa Transaction Reference Number (TRN): EG Visa Application ID: Client ID: Name of Approved Visa Holder: James Johnson Passport Number: Visa validity period: 07 February February 2017 Name of Sponsor: ACME INDUSTRIES PTY LTD Sponsorship/Agreement Application ID: This refers to your application for a Temporary Business Entry (Class UC) visa. You have indicated on your application that you wish to be considered for the grant of a Temporary Work (Skilled) (Subclass 457) visa DECISION I am pleased to advise that James Johnson has been granted a Temporary Business Entry (Class UC) Work (Skilled) (Subclass 457) visa. This visa allows you to travel to, enter and remain in Australia and is valid until the date specified above VISA GRANT NUMBER The visa grant number is This is the unique number assigned to the visa. Please keep this visa grant number with you for the life of your visa, as you may be asked for it. Insert filename here Date of presentation 62

63 457 Time and Cost 1% gross payroll on Training (demonstrated investment in training for Australians) or 2% paid to Industry training Fund (each and every year for the 4 years). Sponsorship Application Charge $420 Nomination Charge $85 Visa Application Charge $455 Return Travel. ENS $$$ Documents Financial statements, training plans, contracts, Annual Reports, employment contracts, CV's, Qualifications, Marriage Certificates, Passports..Extensive material required, takes time to obtain translation and certification. Insert filename here Date of presentation 63

64 Intra-company transfers Streamlined processing arrangements are in place to help executives, managers and specialists on intra-company transfer (employees of an international business transferred to Australia to work in a branch or subsidiary of the business). These arrangements also assist intra-company transfers between Asia Pacific Economic Cooperation (APEC) economies. Brunei India Papua New Guinea United States Canada Japan Peru Vietnam Chile Korea Philippines Indonesia China Malaysia Russia Chinese Tapei Mexico Singapore Hong Kong New Zealand Thailand Insert filename here Date of presentation 64

65 ENS Permanent Transfer and Residency For this visa, you should already have: an Australian employer a highly skilled employee an eligible occupation. (These are different occupations from the CSOL higher skills and more limited). Same process Sponsorship, Nomination and Visa. Offer of 3 years, age limit 50. Can apply for ENS after holding 457 for 2 years or can offer ENS initially. Insert filename here Date of presentation 65

66 The Tricky Bit Setting it Up Method 1: Secondment Home Company or Parent Secondee Local Company (Subsidiary/Host) Continues to be employed by home country except where modified by terms and duties in host country. (Intra-company transfer letter). Host pays Parent/Home company. (Be careful re permanent establishment issues) Most common arrangement. Insert filename here Date of presentation 66

67 Method 2: Transfer Home Company or Parent Transfer through termination and rehire Local Company (Subsidiary/Host) Home company terminates employment. Host company employs individual on a new contract host jurisdiction only. Be wary of entitlements and termination requirements vs benefits of fresh start and a clearer employment relationship. Insert filename here Date of presentation 67

68 Method 3: Dual Employment Home Company or Parent Employee Local Company (Subsidiary/Host) Employee of both Companies.Executive with multiple titles and reporting responsibilities. Services benefit both entities. Tax challenges. Clear duties and time allocation required. Less common. Possibility of some favourable tax outcomes. Insert filename here Date of presentation 68

69 Method 4: Use of Global Employment Companies Home Company or Parent Transfer and rehire Global Employment Company Secondment Local Company (Subsidiary/Host) Expatriate GEC. GEC as employer seconds to Host. Uniformity of conditions for pool of expatriates. Often used to address permanent establishment. Set up in employer friendly jurisdictions. Insert filename here Date of presentation 69

70 Case Study 1 Regional Manager Regional Asia Pacific Manager responsible for operations in multiple countries. Australian subsidiary based in Sydney. Long Stay ETA for meetings, networking and negotiations. (Remember strict no work condition) 457 Visa if going to live and work in Australia - 38 hour week. Must have valid leave to depart. Remember 'genuine intention'. ENS if permanently based, or back to back 457 Visa. Insert filename here Date of presentation 70

71 Case Study 2 Project Work Project Work 2 month project in Perth for new customer specialist project manager. Company/provider has no presence in Australia. 457 Visa only. Cannot use a 457 Visa for fly in fly out. Insert filename here Date of presentation 71

72 Checklist The best laid plans. Use our Checklist to make sure your company is prepared. No one wants to receive a call from the Airport."I'm stuck at Immigration." Insert filename here Date of presentation 72

73 QUESTIONS Insert filename here 73 Date of presentation