It may be a very worrying time for you, if you are here on a temporary visa which has work rights (such as an employer sponsored visa or a student visa) and your employer cannot continue your employment.
The Department of Home Affairs needs to urgently implement strategies which will alleviate the above pressures on employers and visa holders. The Migration Institute of Australia has been lobbying the Government and informing them of the critical situations in which many clients find themselves. Here are the problems which could result.
- Sponsored workers, if stood down or terminated, cannot work for any other employer while subject to “condition 8107” on the visa.
- Sponsored workers are not usually entitled to any government support or financial assistance.
- Many will find it hard to afford their health insurance (which is mandatory on their visa), leaving them exposed to being unable to access health care, and breaching a visa condition.
- It may in future be impossible for anyone to leave the country, meaning people will be stuck onshore, possibly becoming unlawful if their visa expires or is cancelled, and without means of financial support.
- Businesses who are trying to trade through the crisis, or must shut down temporarily, know that when things return to normal, they will again need skilled labour, and do not want to lose their valuable workers permanently.
The Department has indicated they are currently working through the options and it is their priority to provide clear messages to affected sponsors and visa holders.
Current Options for Sponsored employees (Subclass 457 or 482 Visas)
At this time, all migration legislation surrounding sponsor obligations still stands. There have been NO relaxations announced yet. If your employer needs to make changes to your employment, here are the options which are acceptable under current Migration law.
(NOTE: Below we have provided GENERAL INFORMATION based on current migration law. We recommend you seek advice from an Employment Lawyer if you wish to discuss any of these options. There may be other factors which impact on whether these options are suitable – such as prevailing modern award conditions. We do not provide advice on employment law matters)
Leave Without Pay / Stand Down.
Migration law allows sponsored worker to take Leave Without Pay. It often happens in the case of maternity leave. There is usually a limit to the amount of LWOP that can be taken. The Department does not need to approve LWOP, but it is important to put such arrangements in writing, and retain paperwork and evidence of this.
Your visa would continue while you are on LWOP, and would not be cancelled on grounds that you are not working. The impact, however, is that, on a 482 or 457 visa, you have a visa condition preventing you from taking work elsewhere.
Part Time Work.
Migration law allows a worker on a 457 or a 482 visa to reduce their hours, provided they are still earning above the Temporary Skilled Migration Income Threshold (TSMIT) of $53,900 pa, OR above a caveat to which their occupation is subjected.
For example – a full time worker on $80,000 a year is paid $40.48 per hour. If the person’s hours were dropped to 26 hours a week, at the same rate of pay, they would earn $54,728 – which is above the TSMIT. However, if the person’s occupation was one which had a caveat of $80,000 as the minimum salary, this option could not be taken.
While a part time option may suit some workers, it is not going to help people whose salaries are slightly above the TSMIT. To reduce hours, would mean that they drop below the minimum earnings. Employment status cannot be changed to “casual”.
Termination of Employment
Should your employment be terminated, you have 60 days to find a new employer and transfer your visa across. We anticipate that finding new employment at the moment could be very difficult indeed. Termination of employment may also affect your permanent residency options, if applicable.
To date, the Government has announced a range of stimulus incentives for businesses, aimed at supporting them for the next few months, in the hope that jobs will continue where possible, and stand-downs (if necessary) will be temporary. Once our environment returns to “normal” it is hoped that businesses will resume and continue to employ their valued staff.
The Government’s main priority right now is making sure that non-Australians remain here lawfully. A range of measures are being put in place, to allow temporary visa holders whose visa is expiring, to obtain a new visa.
We know the Government is looking at the possibility of extending financial support to eligible visa holders onshore, who are not otherwise eligible for government assistance.
The Government may also choose to introduce relaxations to conditions on current visas, which may help people who find themselves out of work. Such relaxations could be structured in such a way that they last only for the duration of the crisis.
These measures are not yet in place, and we will share any developments on our COVID-19 update page.