COVID-19 (Coronavirus) - FAQ Employer / Sponsor
The Covid-19 pandemic hit the global economy from the beginning of 2020. This has caused many deaths across the world and governments are faced with the challenge of saving lives and ensuring their economies survive such tough conditions. Travel restrictions were put in place to further protect human lives but have impacted the business as well. The working visas or temporary visas which encourage overseas workers to come and work in various sectors in Australia, have also been put on hold.
There are 2.17 million people presently in Australia on a temporary visa. All were granted visas to Australia for reasons varying from work, study, work & holiday and entertainment purposes. Almost 8,000 skilled medical professionals are working in the health system. The employees under this visa form a very important part of the economy.
The businesses that have nominated workers to fill gaps are also faced with concerns and queries about how they have to handle their nominated workforce. While many are forced to close down or reduce working hours; others are looking for change of duties and work places to meet their changing needs.
While citizens, permanent residents and many New Zealanders have access to unconditional work rights and government payments (including the new JobKeeper and JobSeeker payments), temporary visa holders do not have the same benefits.
Temporary Skilled visa holders
There are around 139,000 temporary skilled visa holders, on either a 2 year or 4 year visa. They were provided the visa to fill a skills shortage – a shortage that may still be present when the crisis has passed.
Therefore, if the visa holders have been stood down, but not laid off they can maintain their visa validity and the businesses will have the opportunity to extend their visa as per normal arrangements when conditions improve. Employers also have the options to reduce the hours of working without breaching visa conditions. These visa holders will also be able to access up to $10,000 of their superannuation this financial year.
But if the employer is not able to support the sponsored employee, then they must leave the country in accordance with the regulations of the visa. But if a 4-year visa holder is re-employed after Covid-19, the time spent in Australia will be counted towards the PR skilled work experience requirement.
Employers must ensure to keep a record of all such changes to work timings for audit purposes. It is not necessary to inform immigration of the same at this point.
Q. Can sponsored employees’ work reduced hours or as part-time workers?
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 should be maintained –
- The pro-rata hourly rate of the nominated salary for the employee must not decrease;
- The roles and duties of the employee must be consistent with the approved nomination job description;
- The employee must not be employed under a Labour Agreement which was restricted to full-time arrangements;
- The changes must be mutually agreed by both employer and employee, with written evidence to demonstrate the same and reasons stated for the change in agreement.
Q. Is it possible to reduce sponsored workers’ wages?
Yes, the wages can be reduced after a new nomination with lower wage is approved. But it must be higher than the Temporary Skilled Migration Income Threshold (TSMIT) which is currently at AU$53,900.
Q. Can sponsored employees be on Leave Without Pay (LWOP)?
Yes, the sponsored employees on 482 or 457 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 will not be in breach of their visa conditions due to or solely on the basis of this unpaid leave. This is allowed on the basis that the employee is still employed by the sponsor even though not being paid due to the current scenario.
The visa holders who have been ‘stood down’ can maintain their visa validity and are able to apply for online extensions. The employee must submit a formal leave application and there must be evidence of the leave being approved. This can be in paper or online application.
Q. How can sponsored employees stuck overseas return back to Australia ?
Immigration website has online application options which allow exemptions to be applied. These are assessed on a case by case basis and travel rights granted if necessary for the social wellbeing or economic development of Australian residents/ citizens or business.
Q. 457 or 482 visa holders work from home in Australia or overseas as they cannot return to Australia.
Employees are allowed to perform their role remotely, that includes working from overseas. An amended agreement between the employer and employee should be executed for record-keeping and sponsorship obligation purposes. However please note the work performed from overseas may not be considered as time spent working for the sponsoring employer in Australia for the purpose of a permanent visa for Australian experiment points or as a Subclass 186 in the Temporary Residence Transition stream. Immigration will assess this on a case-by-case basis.
Q. Are Sponsored employees allowed to work in other areas than the nominated position?
There are strict conditions of 8107 or 8607 which strictly limits that employees from working in any other occupation than the nominated role. In the condition that sponsors do not follow this, they may be held accountable and the employee may have their visa cancelled.
If the business requires changes to be implemented in roles, the sponsor must re-apply for a new nomination for the position and then move the employee to that role .
However if there is a role change for less than 60 days and due to temporary reasons, as a one-off during the Covid-19; there is no need to change the nomination.
The same condition restricts sponsored employees from working for other companies due to lack of work with current sponsor. Each sponsor must apply for the nomination and then only employ the relevant staff to work in the vacant position.
Q. Any financial support available for 457/482 employees?
The Government has made allowances for 457 and 482 employees to access upto A$10,000 from their superannuation funds during this financial year. This has to be organised with the relevant super fund provider.
The current Job Keeper and Job Seeker payments are not available for 457 and 482 visa holders at this stage.
Q Termination of sponsored employees due to business closure or lack of trading.
If a nominated employee is laid off, the employer must inform the Dept of Immigration in writing within 28 days. The employer must comply with all sponsorship obligations during this period.
The terminated employee has the option to find another sponsor to stay back within 60 days or leave the country .
Q. Refund of SAF if employee is terminated.
Currently there is no provision for SAF refund, though if an employee leaves within the first year, the sponsor can apply for a partial refund. But there is no guarantee of the same being granted.
Approved Sponsor Obligations -
As an approved sponsor for the 457/482 visa stream, the employer is obliged to adhere to certain conditions at all times –
- Must inform the immigration department if there is any change to the ongoing employment agreement.
- Must keep written evidences of changes in working conditions for the nominated employees like leave applications, LWOP, change of duties, workplaces like overseas or from home.
- Advise of any changes to the approved business structure including business address, legal or trading name, change in ownerships and communication means.
- Must inform if the company ceases to function as a legal entity or becomes insolvent or bankrupt or goes into liquidation or administration or receivership.
On 1st July 2019,
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