In this update, we analyse the implications of the recent announcement concerning temporary visa holder arrangements during the COVID-19 outbreak, by the acting Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs, the Hon Alan Tudge MP.
The Minister has announced that the following new measures will apply to sponsored temporary skilled work primary visa holders (that is, subclass 457 and subclass 482 primary visa holders):
- Visa holders who have been stood down, but not laid off (ie, where their position has not been made redundant), will maintain their visa validity and businesses will have the opportunity to arrange a further visa as per normal arrangements.
- Businesses will also be able to reduce the hours of the visa holder without the person being in breach of their visa condition.
- These visa holders will also be able to access up to $10,000 of their superannuation this financial year.
- Those visa holders who have been laid off (ie, where their position has been made redundant) due to coronavirus should leave the country in line with existing visa conditions if they are unable to secure a new sponsor.
- 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.
In relation to point 5, above, our understanding is that this only applies to people who have been temporarily stood down (as opposed to persons whose employment has ceased).
The full announcement can be found here: https://minister.homeaffairs.gov.au/davidcoleman/Pages/Coronavirus-and-Temporary-Visa-holders.aspx
At the outset, it is important to note that the above is only an announcement, and has not been enacted into law or incorporated into Departmental policy. Nevertheless, it is our view that employers and visa holders are entitled to rely on the representations made in the announcement in relation to how the Immigration Department will treat the actions of employers and sponsored temporary visa holders affected by the COVID-19 outbreak.
We outline below the implications for employees, in relation to their visa conditions as well as employers, in relation to their existing sponsorship obligations.
For Employees – Visa Conditions
Generally, sponsored temporary skilled work visa holders are required to continue to work for their sponsoring employer, in their nominated occupation. Visa holders must not cease employment for more than 60 days (or 90 days if the person holds a 457 visa granted prior to 19 November 2016).
The announcement indicates that the Immigration Department will not consider sponsored temporary skilled work visa holders who have been temporarily stood down or have had their hours reduced to be in breach of their visa conditions.
However, if the visa holder’s employment has been terminated, the visa holder will still need to find a new employer to sponsor them within 60 days (or 90 days if the person holds a 457 visa granted prior to 19 November 2016) while their visa remains current. Alternatively, the holder will need to apply for another visa or depart Australia within the relevant time period that applies to them. Otherwise, it appears that the Immigration Department may still consider the visa holder to be in breach of their visa conditions and may take steps to cancel the holder’s visa.
For Employers – Sponsorship Obligations
Generally, sponsoring employers are obligated to:
- Ensure the sponsored temporary visa holder undertake the tasks and duties of the nominated position.
- Ensure the sponsored temporary visa holder is paid at least the annual guaranteed earnings as indicated in the approved nomination. This would usually mean that employers are required to pay the visa holder the annual guaranteed earnings, even if their hours were reduced and effectively prohibit leave without pay unless exempted under Department policy.
- Notify the Immigration Department within 28 days of the cessation of the employment of a sponsored temporary visa holder.
As the above announcement permits employers to stand down and/or reduce the hours of their sponsored temporary visa holders, by implication, it would appear that employers would not be considered to be in breach of their sponsorship obligations by reducing their employee’s salary accordingly, on a pro-rata basis.
If a sponsoring employer is considering reducing the hours of their sponsored temporary visa holders, it is important that:
- 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 arrangement is mutually agreed upon by the sponsor and sponsored person. Sponsors should maintain written evidence to demonstrate this agreement, and document the reason for the change.
If a sponsoring employer is considering standing down a sponsored primary 457/482 visa holder, it is important that all communications with the employee concerning the stand down arrangements are documented.
If the sponsored temporary primary 457/482 visa holder’s employment is terminated, the sponsoring employer will continue to have an obligation to inform the Immigration Department of the cessation of employment, within 28 days of the event occurring.
Other Sponsored temporary activities visa holders
It is currently unclear whether the above announcement will extend to other temporary visa holders, including primary subclass 408 research activity visa holders with an underlying employment agreement with the sponsoring organisation. Arguably, the arrangements announced by the Minister have been put in place in relation to visas that have been granted to fill a skills shortage (which will continue to exist once the COVID-19 outbreak passes), rather than visas granted for the purposes of participating in certain temporary activities. Accordingly, the conservative view is that primary 408 research holders are required to continue their research activity. If there is any cessation of that activity (temporary or permanent), the expectation would be that the holder should return to their home country as soon as possible. In such circumstances, there would be an obligation on the sponsor to notify the Department that the holder has ceased participating in the activity, within 28 days of the event occurring.
A related question is whether reduction in the number of hours of the approved activity would require any action on the part of the visa holder and/or the sponsor. There is no simple answer at the present time. Our view is that provided the research activities remain the same and the person continues to undertake these activities, no further action is required. However, if the research activities have changed, the visa holder must apply for and obtain another 408 visa in relation to the new research activities before commencing the new activities.
How long will these arrangements last?
It is currently unclear how long the above arrangements are expected to last.
It will be important for employers to keep abreast of any announcements made by the Immigration Department and be prepared to change the management of its temporary visa holder workforce accordingly.
Sponsors should carefully consider any changes in employment arrangements with its sponsored primary temporary visa holders. The course of action taken in each case should be assessed against the visa holder’s visa conditions, the employer’s sponsorship obligations as well as other applicable immigration laws. In addition, employers should also have regard to relevant employment laws.
The details contained in this brief are for information only and do not constitute an advice on any particular matter or individual circumstance. The situation is ever-changing and individuals impacted are encouraged to seek advice.
This brief was compiled by Visa Lawyers Australia Pty Ltd. If you have any questions in relation to the above update or any other immigration matter, please contact:
Aristotle Paipetis
Principal Solicitor & Registered Migration Agent 0006846
Visa Lawyers Australia Pty Ltd
e: aristotle@visalawyers.com.au
p: +61 (2) 9280 2591 | m: +61 (0)438 833 896