AUSTRALIA: COVID-19 (Coronavirus) Employer Sponsor FAQ [Updated 6 April 2020]

April 6, 2020

As many businesses across Australia have been forced to close their doors or limit their services 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 Minister for Immigration announced on 4 April that subclass 457 and 482 visa holders will be able to reduce their working hours without being in breach of their visa conditions.

However, the below following four policy criteria should continue to be 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
• the nominee is not employed under a Labour 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

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).

Immigration has confirmed that 457 and 482 visa holders who have been ‘stood down but not laid off’ will be able to maintain their visa validity and to apply for an extension of the visa through the usual application process.

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).

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.

Other Work

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?

Subclass 457 and 482 visa holders will be able to access up to AU$10,000 of their superannuation this financial year. An application should be made directly with the superannuation fund provider.

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.

There have not been any announcements regarding welfare payments for 457 or 482 visa holders.

Termination

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.

Immigration have taken the view that visa holders who have been laid off due to coronavirus should leave Australia if they are unable to secure a new sponsor. However, there is some good news in that the Minister has also announced “should a 4-year visa holder be re-employed after the coronavirus pandemic, their time already spent in Australia will count towards their permanent residency skilled work experience requirements”.

Based on this announcement, our interpretation is that if:

• The worker holds a 457 or 482 in a MLTSSL or ROL occupation (i.e. a ‘4-year visa’); and
• Their employment is terminated and they leave Australia; and
• They are subsequently re-employed by their original sponsor after the pandemic period

Then the worker could count the time already spent working in Australia with the original sponsor towards the work requirement for a permanent employer-sponsored visa. We suggest contacting your Immigration Consultant to advise you on your employee’s options moving forward.

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. They only need to be paid once.

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.

Other Obligations

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.