Temporary Work Visas and the Coronavirus - FAQ

Know Your Rights and Limitations

Many businesses across Australia have been 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 Subclass 457 and 482 holders will be wondering what this means for their visa.

Our industry body, The Migration Institute of Australia, is in frequent 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 workers holding Subclass 457 or 482 visas as a primary applicant.

Reduction in work

Q. Can I reduce my hours or move to part-time work?

The subclass 457 and 482 visa programs are designed to fill genuine skill shortages in the Australian labour 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 also full-time.

If your hours were reduced to part-time, the decrease in your earnings (or terms and conditions of employment) may result in a failure for your sponsor to meet their obligations under regulation 2.79, as there would be:

  • less favourable 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:

  • A gradual return to work following 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 your approved salary (as per the nomination) does not decrease
  • the role and duties performed remain consistent with your nominated occupation
  • you are not employed under a Labour Agreement
  • there is a written agreement in place between you and your sponsor. Your sponsor must maintain a copy of the 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 government restrictions. We have sought further information from the Department of Immigration this.

Q. Can my employer reduce my wages?

It is only 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. You would need to agree to the revised wage by signing a new employment contract, and the new application would incur an additional Skilling Australians Fund levy payment on behalf of your sponsor.

Q. Can I go on Leave Without Pay (LWOP)?

482 or 457 visa holders are covered by the National Employment Standards, making them eligible for 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). You would not be considered to be in breach of your visa conditions solely on the basis of this unpaid leave. This is because you are considered to continue to be employed by your sponsor (despite not working or receiving a salary).

Under Immigration policy, the period of leave should not exceed 3 months unless:

  • your 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:

  • both you and your sponsor have agreed that LWOP will be taken; and
  • there is a formal application for leave without pay that has been formally approved by your sponsor (including leave applications that are processed and approved electronically).

Where extended LWOP occurs, it should be noted that your visa may be subject to cancellation under the Migration Regulations, if the Department is satisfied that you have ceased to have a genuine intention to perform the nominated 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 on our blog.

Overseas Workers / Travel

Q. Can I return to Australia on my 457/482 visa if I am currently 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. An exemption must be obtained before you attempt to travel, or your visa will be cancelled.

Where an exemption is granted, you would be expected to self-isolate for a 14-day period upon arrival in Australia.

Q. Can I work from overseas on my 457/482 visa if I cannot return to Australia?

If it is possible for you to perform your work remotely, then you can still work from overseas. A written agreement between you and sponsor 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 your 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 you are found working in a different occupation, your visa may be cancelled and your sponsor may become subject to sanctions affecting their ability to sponsor workers in future.

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 would not be considered to have been breached if the change of duties is only temporary and will not exceed 60 consecutive days. However, if your duties are revised for a period of more than 60 days, or if they are regularly changed, you must ensure a new nomination (457) or new nomination and visa (482) are lodged.

Q. Can I work somewhere else and go back to my original sponsor 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, a new employer would need to sponsor you and have this approved before you could commence work there. Another application would then need to be lodged to return to the original sponsor.

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 I receive Centrelink payments or access my 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 cancellation of their visa and a 'Departing Australia Superannuation Payment'. Further information is available here.

Termination

Q. Can I be temporarily laid off, e.g. due to a business shutdown or reduced trading?

See 'Leave Without Pay' above.

Q. Can my sponsor terminate my employment? Can I leave Australia and travel home?

From an Immigration perspective, Standard Business Sponsors are required to continue to comply with their sponsorship obligations, as well as following the standard Fair Work rules during this period.

If your employment was terminated, you would generally have 60 days to depart Australia, or find a new sponsor, or lodge a different type of visa to stay here before Immigration would consider you to be in breach of the work conditions and look to cancel your 457/482 visa. We suggest contacting an Immigration Consultant to advise you on your options moving forward.

If your employment is terminated and you wish to depart Australia, your sponsor is obligated to pay reasonable travel costs for you and any family members dependent on your visa.

The department considers the following costs to be reasonable and necessary:

  • travel from your usual place of residence in Australia to your departure point from Australia (i.e. from home to the airport)
  • travel from Australia to the country for which you hold a passport and intend to travel to
  • economy class air travel or reasonable equivalent

'Reasonable travel costs' does not include costs associated with relocation of your personal effects (beyond any included airline baggage allowance), excess luggage, rental property expenses (for example, the cost of breaking a lease), personal choices (such as particular stopovers on international flights or preferred hotels), or the cost of obtaining a travel document (for example, passport).

You must make a formal request in writing confirming the full names of the travellers, your country/ies of passport, and your destination. Your sponsor must make payment within 30 days of receiving the request.

Acacia's Advice

The Australian Government is constantly evaluating and changing policy in light of the evolving COVID-19 situation. It is therefore important to ensure you have the most up-to-date information and understand your rights. Please follow us on Facebook, Twitter, or LinkedIn for the latest news and updates.

Acacia is fully operational with a remote workforce, and we thank you for your patience and continued support during this period. We encourage you to reach out to your Immigration Consultant directly with any queries or concerns.

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