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.
For those Australian businesses which are sponsoring international workers on 482 visas, there are even more issues to be grappled with.
In this bulletin, we provide clear information regarding your responsibilities as a Business Sponsor, the conditions attached to your nominee’s visa, and direct you to resources that may assist you in making decisions necessary for your business.
Sponsorship Obligations
The responsibility of a Business Sponsor is to employ your nominee in the nominated occupation on a full-time basis*.
Employees holding 482 (or 457) visas must be employed in accordance with employment laws – both state and federal, as applicable.
Legislation in relation to the granting of leave, employer shut-downs and redundancy, applies to 482 (or 457) visa holders as it does to any Australian employee.
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.
Paid and unpaid leave is available to 482 (or 457) visa holders according to their contract, any applicable Award and the National Employment Standards. The following links to Fair Work website provide information about whether and when it may be lawful to request or require employees to take leave and what that leave may consist of in the Coronavirus environment:
https://www.fairwork.gov.au/leave/annual-leave/directing-an-employee-to-take-annual-leave
For any leave situation, it is expected that the arrangement is mutually agreed upon by the sponsor and nominee and there is a formal application for leave / leave without pay that has been formally approved by the employer. Records of such actions must be retained. As an employer or business owner, you may also be considering 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 )
In this scenario the employee is still considered to be employed, despite not currently working.
Some awards, agreements and contracts have extra rules about when an employer can stand down an employee without pay. It is the employer’s responsibility to refer to any Award that applies to a nominee’s 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.
It is unlikely that a sponsoring employer will willingly wish to lose a key 482 visa-holding employee. If, however, an employer no longer has the nominated position available for a nominee to fill on an ongoing basis, and the nominee’s employment is terminated, the employer must notify the Department of Home Affairs accordingly (email to [email protected]).
In those circumstances, nominees must ensure that they continue to abide by the conditions that attach to their visa (refer section below).
For further information and examples, please find attached the information sheet COVID19 FAQs published this week by Australian Business Lawyers and Advisors.
For any specific questions about your sponsorship scenario, please consult us directly.
Your Nominee’s Visa
Your nominee’s 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.
Home Affairs policy explains that a subclass 482 visa holder is considered to have ceased employment if:
- the employer, or employee, gives written notice that employment will cease, or has ceased, on a particular date; and
- that date has passed
Employees who remain employed, but are on leave – whether annual, personal or unpaid leave – remain employees and will not be in breach of clause 8607(5).
Department policy further indicates that the duration of unpaid leave that is acceptable is reviewed on a case by case basis but generally should 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.
For any leave without pay situation, it is expected that the arrangement is mutually agreed upon by the sponsor and nominee and there is a formal application for leave without pay that has been formally approved by the employer. Records of such actions must be retained.
Where extended leave without pay occurs, there remains a residual risk that the visa may be subject to cancellation if the Department were satisfied that the visa holder had ceased to have a genuine intention to perform that occupation. If, however, the period, whilst indeterminate, is only temporary, we consider there is a strong argument the nominee could make, with the support of the employer.
Note that, when a 485 / 457 visa holder is on leave and remains in Australia, he or she is 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.
Remember to consider your nominee’s financial situation if you agree on a period of extended leave without pay or if the nominee is stood down for some time. Inability to meet ongoing financial commitments may lead to an inclination to find work elsewhere and lead to a breach of visa conditions, again leading to risk of visa cancellation.
As the pandemic and its implications is an evolving situation, the fundamental legislative requirements must continue to be met by sponsors and their nominees. Given the exceptional circumstances, however, where the best interests of both the employer and the employee have been taken into account, and where genuine dialogue has occurred and records maintained, we consider that the risk of visa cancellation will not be realised in most cases. Of course, each situation would be dealt with on its own circumstances.
