Note: The following provides general information only and should not be considered as professional advice. For specific advice on employment law issues, please contact your legal or HR advisor. For specific migration advice, please contact Aspire Australia on 02 9956 6011 or [email protected].
The impact of the CoVid19 Coronavirus is being felt by businesses and individuals around the world.
Here, in Australia, many employers are faced with difficult decisions as they measure the impact that loss of customers and trading income is having on their businesses. As an employer-sponsored visa holder, you must also keep in mind that you must remain compliant with the conditions of your 482 (or 457) visa. In this bulletin, we provide information regarding the work condition attached to your visa and how that may be impacted by a decision by your employer to temporarily cease trading or change your working conditions.
Your Sponsoring Employer’s Obligations
Your sponsoring employer is required to employ you in the nominated occupation on a full-time basis*. You must be employed in accordance with both state and federal employment laws, as applicable.
Some employers are now in a situation in which they have lost customers or business to the extent that they have no useful work for an employee to undertake.
In these circumstances, an employer may have several options available to them including:
– the worker takes paid leave
– the worker takes unpaid leave
– the worker is stood down.
Let’s consider how these options may impact your 482 / 457 visa.
Your subclass 482 visa is subject to clause 8607, which states at sub-clause (5): (5) If the holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.
Department of Home Affairs policy explains that a subclass 482 visa holder is considered to have ceased employment if:
*limited exemptions apply to the requirement for full time employment
- the employer, or employee, gives written notice that employment will cease,
or has ceased, on a particular date; and
- that date has passed
If your employment is not terminated, you remain employed.
Your employer, however, may not have any work for you and may wish you to either take leave or may wish to stand you down.
There are very limited situations in which you can be forced to take leave. Read more here: https://www.fairwork.gov.au/leave/annual-leave/directing-an-employee-to-take-annual-leave
If you agree with your employer to take unpaid leave, the Department of Home Affairs policy indicates that the duration of that unpaid leave should generally not
exceed 3 months unless:
the sponsor is obliged to provide the leave under Australian workplace laws
(e.g. in connection with maternity leave); or
exceptional circumstances apply.
It is likely that the current Covid19 pandemic will be recognised as an exceptional circumstance.
Where extended leave without pay occurs, there remains a residual risk that your visa may be subject to cancellation if the Department believes that you did not have a genuine intention to perform your job. That is, that you do not intend to return to work.
If, however, the period of unpaid leave is only temporary, and you have documentation from the employer indicating the reasons for the period of leave without pay, we consider it unlikely that your visa would be cancelled.
Alternatively, your employer may wish to enforce a stand down.
A stand down is “when an employee can’t do useful work because of, for example, stoppage of work for which the employer can’t be held responsible, including severe and inclement weather or natural disasters.”
During a stand down period, an employee:
doesn’t need to be paid
accrues leave in the usual way. ( https://www.fairwork.gov.au/pay/pay-during-inclement-weather-and-stand-down#1751-1760 )
If you are employed under an award or agreement, there may be extra rules about when an employer can stand you down without pay. You should review your employment contract and contact Fair Work as necessary (www.fairwork.gov.au). *limited exemptions apply to the requirement for full time employment
Fair Work recommends employers consider other options instead of standing down employees such as letting employees:
- take a period of paid leave, such as annual leave
- work at another location such as from home or another work site.
Any situation in which you are intending to take leave – whether paid or unpaid – there should be an agreement between you and your employer and the decisions made should be recorded. You should keep a copy of any emails and note any discussions that you have had with your employer.
Note that, if as a 482 / 457 visa holder, you are on leave or have been stood down, you are not permitted to work for any other employer nor be self-employed. Doing so would be a breach of visa conditions and could lead to visa cancellation.
For more information about how the coronavirus affects your employment, read the information on the Fair Work website:
Although the pandemic and its implications is an evolving situation, you must continue to abide by the conditions of your visa. Given the exceptional circumstances, however, there is likely to be a level of leniency and consideration in cases where genuine dialogue between the employer and visa holder has occurred and records kept.
Should you wish to discuss your individual circumstances with us, please contact us on 02 9956 6011 or via email to [email protected].