Following confirmation from the Australian Government that many businesses across Australia will be forced to close their doors or limit their services as of 12pm, Monday 23 March 2020 due to COVID-19, we are aware that many employer sponsors will be wondering what this means for their visa holding workforce.
Please note that our industry body, The Migration Institute of Australia, is in communication with the Department of Home Affairs and any advice provided by the department will be circulated as a priority.
In the meantime, we have outlined below some frequently asked questions and current immigration policy relevant to employer sponsors with staff holding 457 or 482 visas.
Reduction in work
Q. Can I reduce my sponsored workers' hours or move them to part-time work?
The subclass 457 and 482 visa programs are designed to fill genuine skill shortages in the Australian labor market where appropriately skilled Australians cannot be sourced. It is a requirement at time of visa grant for a 482 visa that the nominated occupation is for full-time employment. Generally, approved nominations for subclass 457 visas are full-time.
If a sponsored person’s hours were reduced to part-time, the decrease in the person’s earnings (or terms and conditions of employment) may result in a failure for sponsors to meet their obligations under regulation 2.79, as there would be:
- less favorable terms and conditions (for sponsors of 457 visa holders); or
- earnings less than the nominated salary (for sponsors of 482 visa holders)
Under policy, regulation 2.79 would be considered met where periods of part-time work occur in connection with:
- graduated return from maternity leave
- sick leave or a work-based injury
- significant personal reasons
And the below following four policy criteria are met:
- the pro-rata hourly rate of the approved nominated salary of the sponsored person does not decrease
- the role and duties conducted by the sponsored person remain consistent with the position approved at nomination (see Regulation 2.86)
- the nominee is not employed under a Labor Agreement which was restricted to full-time arrangements only
- this arrangement is mutually agreed upon by the sponsor and sponsored person. Sponsors must maintain written evidence to demonstrate this agreement and document the reason for the change
Policy does not currently specify what is covered under ‘significant personal reasons’ and whether this can be extended to cover businesses affected by the coronavirus restrictions. We have sought further information from the Department of Immigration this.
Q. Can I reduce my sponsored workers’ wages?
It is possible to reduce wages by lodging a new nomination with a lower wage, provided the wage is still market rate and above the Temporary Skilled Migration Income Threshold (TSMIT), currently AU$53,900.
Q. Can I put my staff member on Leave Without Pay (LWOP)?
482 or 457 visa holders are eligible to be placed on unpaid leave (e.g. study or sabbatical leave; recreational or holiday leave without pay; sick leave without pay; parental/carer/personal leave; maternity and/or paternity leave) and are not considered to be in breach of their visa conditions solely on the basis of this unpaid leave. This is because these visa holders may be considered to continue to be in the employ of the sponsor (although not working or receiving a salary).
Under Immigration policy, the period of leave should not exceed three months unless:
- the sponsor is obliged to provide the leave under Australian workplace laws (e.g. in connection with maternity leave); or
- exceptional circumstances apply.
NOTE: There is a difference in policy for the length of time for unpaid leave for the different visa conditions that apply to the 457 (8107) and the 482 (8607). The 8107 condition allows up to 12 months’ leave on a 457 visa.
For any LWOP it is expected that,
- the arrangement is mutually agreed upon by the sponsor and sponsored person; and
- there is a formal application for leave without pay that has been formally approved by the employer (including leave applications that are processed and approved electronically).
Where extended LWOP occurs, it should be noted that the visa may be subject to cancelation under the Migration Regulations, if the department is satisfied that the visa holder has ceased to have a genuine intention to perform that occupation.
It is our expectation that the department will soon release Covid-19 specific policy surrounding the ‘exceptional circumstances’ mentioned above, at which point we will share this information with our clients.
Overseas Workers / Travel
Q. Can my employee return to Australia on their 457 or 482 visa if they have found themselves offshore during the Covid-19 pandemic?
There is a process for applying for an exemption to the travel ban which may be applicable in some cases. We do not have any further information about what may constitute an exemption, other than the limited examples given on the Department of Immigration’s website:
- care for close relatives who are seriously ill
- attend the funeral of a close relative
There is no guarantee of success, and thoughts are that the restriction will only be lifted in genuinely exceptional, compelling and compassionate circumstances.
Where an exemption is granted, the employee would be expected to self-isolate for a 14-day period upon arrival in Australia.
Q. Can my employees work from overseas on their 457 or 482 visa if they cannot return to Australia?
If it is possible for the employee to perform their role remotely, then they can still work from overseas. A written agreement between the employer and employee should be put in place for record-keeping and sponsorship obligation purposes.
It should be noted that work performed overseas may not be included as time spent working for the sponsoring employer in Australia for the purpose of a permanent visa (such as a Subclass 186 in the Temporary Residence Transitional stream). Immigration will assess this on a case-by-case basis.
Q. Can my staff member do other work within the business?
Under conditions 8107 and 8607 of the 457 and 482 visas respectively, holders are limited to working only in their nominated occupation. In addition, sponsors are obliged to ensure that the 457/482 visa holder works in the nominated occupation.
If a visa holder is found working in a different occupation, their visa may be canceled and the sponsor may become subject to sanctions.
In order to change occupations, a 457 visa holder would need to have an approved nomination in the new occupation before commencing in the role. A 482 visa holder would need an approved nomination and approved visa in the new occupation.
Under policy, the work condition will not be considered to have been breached if the change of duties is only temporary and will not exceed 60 consecutive days. However, if the visa holder's duties are revised for a period of more than 60 days or if they are regularly changed, action must be taken to obtain a new nomination (457) or new nomination and visa (482) as required.
Q. Can my staff member work for another employer and come back to me when business picks up?
Again, conditions 8107 and 8607 of the 457 and 482 visas respectively limit the holder to only working for their sponsoring employer (or associated entity). In this situation, the new employer would need to sponsor the visa holder and have this approved before the visa holder could commence work there. Another application would need to be lodged to return the visa holder to the original business.
We are seeking further information from Immigration on the possible relaxation of these conditions to allow visa holders to work in areas of need during this crisis (for example, providing services to the health sector).
Q. Can my employees access Centrelink or their superannuation early?
Immigration has not yet announced any specific information relevant to Subclass 457 and 482 visa holders.
We are unable to provide advice on eligibility for social security payments or early access to superannuation for other temporary visa holders. Please refer to:
Temporary visa holders who have departed Australia and wish to access their superannuation can request voluntary cancelation of their visa and a ‘Departing Australia Superannuation Payment’. Further information is available here.
Q. Can I temporarily lay staff off, e.g. due to a business shutdown or reduced trading?
See ‘Leave Without Pay’ above.
Q. Can I terminate the employment? What are my obligations if I terminate employment? Will I get a refund of the SAF?
From an Immigration perspective, Standard Business Sponsors are required to continue to comply with their sponsorship obligations during this period. You can access a comprehensive list of your sponsor obligations by visiting the department’s website.
If you were to terminate employment of a 457/482 worker, you must ensure you advise the Department of Immigration in writing within 28 days. Please contact your Newland Chase Immigration Consultant for assistance with making the notification.
Should a 457/482 visa holder cease employment and wish to depart Australia, the Standard Business Sponsor is obligated to pay reasonable travel costs if these are requested in writing.
The department considers the following costs to be reasonable and necessary:
- travel from the employee's usual place of residence in Australia to their departure point from Australia
- travel from Australia to the country for which the employee holds a passport and intends to travel to
- economy class air travel or reasonable equivalent
Travel costs must be paid within 30 days of receiving the request.
There are currently no provisions for a refund of the Skilling Australians Fund (SAF) where employment is terminated. If an employee was to resign within the first 12 months of employment, it is possible to apply for a partial refund.
Q. What are my other obligations as an employer sponsor?
We have outlined below some of the ongoing obligations that are particularly relevant in the current climate.
Obligation to inform the department when certain events occur:
Examples of things you must let them know about in writing include changes to your:
- legal or trading name
- registration details
- business address
- business structure
- ongoing communication contact
- owners, directors, principals or partners
You must let them know in writing if your business:
- becomes insolvent or is bankrupt
- goes into receivership, liquidation or administration
- ceases to exist as a legal entity
You must let them know in writing if the person you sponsor:
- has a change in duties
- did not commence working with you
Obligation to keep records
You must keep records to show your compliance with your sponsorship obligations. All records must be kept in an easily accessible format that can be provided to the Department of Immigration upon request.
You can action these notifications by informing your Newland Chase Immigration Consultant by email.
Newland Chase Advice
The situation that we find ourselves in with regards to COVID-19 is an unprecedented one that is evolving daily. We thank you for your patience and continued support as we work to obtain and circulate the most up-to-date information for both sponsors and visa holders alike. We encourage you to reach out to your Newland Chase specialist directly with any queries or concerns.