COVID-19 has affected thousands of businesses not only in Australia, but worldwide. The uncertainty of this time is unprecedented, and we hope that together, we can help provide you with some clarity in regard to your employees who are currently holding subclass 457 and TSS subclass 482 visas.
The team at Ethos Migration Lawyers has put together the following fact sheet to help answer some of the common question’s businesses may have in regard to their visa holding employees.
My business has had a decrease in workload, can I give my employee other jobs to do?
For holders of 457 and 482 visas, there are limitations under conditions 8107 and 8607 of what jobs can be conducted by the visa holder. These conditions limit your employee to only working in their nominated occupation. This is a requirement that falls on both the employee and the employer.
There are options to change the occupation of your employee, however, if they are a holder of a 457 visa, a new nomination which has been approved would need to be obtained before the employee commences work in the new occupation.
For any employees holding a 482 visa, similarly, they would require an approved nomination as well as an approved visa in the newly nominated occupation.
Can my employee access their superannuation?
The Australian government is allowing workers to access $10,000 of their superannuation this financial year, and next. So far it has been announced that holders of a 457 and 482 visa will be eligible to submit an application to their superannuation fund to access these funds this financial year.
This is not a payment through the government, but through the superannuation fund directly.
It is to be noted that 457 and 482 visa holders who find themselves in a situation where they are departing Australia can request a voluntary cancellation of their visa in order to obtain a ‘Departing Australia Superannuation Payment’.
Can I receive JobKeeper payments to be able to pay my employees who hold visas?
Currently there are no welfare payments available for temporary visa holders which includes 457 and 482 visa holders.
It is unlikely that any further support will be provided by the government.
Can I reduce my employees working hours due to downturn in business?
The Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs The Hon Alan Tudge announced that businesses who employ 457 and 482 visa holders will be able to reduce the employees working hours without being in breach of their visa conditions.
There are some conditions still needing to be followed by employers which include the role and duties of the employee staying the same and consistent with their nominated occupation. The decrease in hours needs to be mutually agreed upon by both the employer and employee.
These conditions may change, we recommend cross checking each employee with the regulations to avoid breaching any visa conditions or business sponsor obligations.
Can I reduce my employees wage due to downturn in business?
If the employee’s working hours have decreased, the pro-rata hourly rate must not decrease. It is possible to lower an employee’s wage by submitting a new nomination with the new decreased wage attached to it.
The new decreased pay rate will still need to be above the Temporary Skilled Migration Income Threshold. The Temporary Skilled Migration Income Threshold (TSMIT) is currently sitting at $53,900.
Can my employee take leave without pay?
There are certain types of leave which a 457 or 482 visa holder can take unpaid without being in breach of their visa conditions.
- Study or sabbatical leave
- Recreational or holiday leave
- Sick leave
- Parental, carer or personal leave
- Maternity or paternity leave
These types of unpaid leave are allowed under the visa conditions as it is assumed by the department that the employee is still employed by the sponsor even though they are not working or receiving a salary.
Normal leave applications should be filled out within the business when taking unpaid leave.
This unpaid leave must be agreed upon mutually by both the employer and the employee.
Can I ‘stand down’ my 457 or 482 visa holders without them breaching their visa conditions?
The Department of Home Affairs has confirmed that employees who are ‘stood down’ by their employers are considered to still be employed and not ‘laid off’ or terminated. These visa
holders will be able to still continue their visa and not be in breach of their conditions. The visa holder will need to apply for an extension of their visa through the normal application process.
Transition to Permanent Residency for eligible 457 or 482 visa holders
For eligible 457/482 visa holders that have a four year visa with the ability to transition into permanent residency the Minister announced that if the employer has laid off due to the coronavirus and have departed Australia their time already spent in Australia will be counted towards their permanent skilled work experience requirements.
Although this has not been clarified in detail, our interpretation is that if the visa holder would ordinarily be eligible for permanent residency through the Employer Nominated Scheme (subclass 186) visa via the Temporary Residence Transition stream the time the employee spent working in Australia can be counted should they return to Australia after the COVID-19 crisis and be re-employed.
Can I terminate an employee holding a 457 or 482 visa?
The Department of Home Affairs has reiterated that sponsors and employers on 457 and 482 visas are still obliged to continue their sponsorship obligations during this time.
If during this time you decide you need to terminate an employee holding a 457 or 482 visa, you will need to notify the Department of Home Affairs within 28 days of doing so.
The sponsor is obligated to pay reasonable travel costs for the employee being terminated to enable them to travel home.
If you are in the position of terminating an employee holding a visa, please contact Ethos Migration Lawyers for any assistance you may need in notifying the department on your behalf.
My employee’s 482 visa has been approved but they are currently outside of Australia
The travel ban in place prevents all non Australian citizens or permanent residents from entering Australia until further notice however limited exemptions apply.
Employees with approved 482 visas are unable to enter Australia unless one of the following exemptions apply or it is assessed by the Commissioner of the Australian Border Force as being a humanitarian or compassionate reason.
The current exemptions that are apply are:
- Foreign nationals travelling at the invitation of the Australian Commonwealth Government for the purpose of assisting in the COVID-19 response or whose entry would be in the national interest
- Critical medical services, including air ambulance and deliver of supplies, that regularly arrive into Australia from international ports
- People with critical skills (such as medical specialists, engineers, marine pilots and crews) by exception
- Diplomats accredited to Australia and currently resident in Australia, and their immediate family
Remember your obligations as a business sponsor
Please remember that as a business sponsor, you are obliged to inform the Department of Home Affairs if you make any changes to your business structure, address, trading name etc.
If you are in the position of needing to notify to the Department of Home Affairs over change of details or change of employment status for any of your employees, please contact our office to make the appropriate notifications on your behalf.
More information & assistance
At Ethos Migration Lawyers we understand the stressful situations both individuals and businesses are going through given the current COVID-19 crisis and are committed to working closely with business sponsors and visa holders throughout this time.
Please note: this information is current as of 12 April 2020 and is subject to change without notice.