Temporary skilled visa holders are key employees in many industries, and for many small to medium businesses this overseas talent will be of huge importance in the post Covid-19 world. When we reach the other side of the bridge, we will need these key employees more than ever. But, at this time you might have no choice but to reduce their hours, offer them leave, stand them down, or even make them redundant. So, what does this mean for their visa and their ability to remain in Australia and work for your business in the future? Also, what does this mean for your legal obligations under the Migration Act 1958 as a sponsoring employer?
These are the common issues raised in the last weeks by our Corporate Migration clients.
Earlier this week the Australian Government provided some guidance on these issues which we are glad to share with you. Below is our FAQ for employers.
1. Can I reduce the working hours of my 482 (or 457) visa holder?
Yes. Nominating employers are generally obliged to employ the 482 visa holder on a full-time basis and pay a salary not less than the nominated salary. Likewise the 482 visa holder is required to work full-time to comply with their visa conditions. Generally if a workers hours are reduced then salary will fall below the nominated salary and place the employer and visa holder in breach of their visa obligations. However, the Australian Government has indicated that a reduction of hours linked to the Covid-19 outbreak will not place the employer or the visa holder in breach.
The Department of Home Affairs (DHA) has given no recommendation on how to reduce pay. At this time we suggest that sponsors reduce working hours and pay proportionately instead of requiring 482 workers to work full-time at a reduced rate.
2. Can I stand down my 482 (or 457) visa holder?
Yes. While a 482 visa holder must work full-time for their sponsoring employer, it may not be possible given these change of circumstances. The Australian Government has indicated this week that should an employer take lawful action under the Fair Work Act to stand down employees where entitled to, then this will not place the employer or visa holder in breach of their respective obligations under Migration Law. This is consistent with the Government’s intention to assist business to survive this period.
3. Is leave without pay consistent with my sponsorship obligations?
Leave without pay up to 3 months is consistent with existing DHA policy and will not place the visa holder in breach of conditions. The only circumstances under existing policy in which leave without pay may exceed 3 months is where the sponsor is obliged to provide the leave under Australian workplace laws, or exceptional circumstances apply.
4. What happens if I am forced to make my 482 (or 457) visa holder employee redundant?
If a 482 visa holder has been terminated or made redundant, then they have 60 days to find a new employer who must lodge a new nomination for them. In the absence of this, they must depart Australia or obtain a new visa.
5. Is a 482 (or 457) visa holder entitled to JobKeeper payments?
The Australian Government’s JobKeeper scheme of payments up to $1,500 a fortnight for employees of eligible business passed both houses of Parliament yesterday (Wednesday 8 April 2020) evening and is now law. The scheme will be accessible to eligible employees who are Australian citizens, holders of a permanent visa, and New Zealand citizens who hold special category visas (subclass 444), but will not extend to 482 visa holders. However, 482 visa holders will be able to access up to $10,000 of their superannuation to support them during this period.
These policies are consistent with the Australian Government’s key message: temporary visa holders who are unable to support themselves over the next six months are encouraged to return home.
There are 139,000 temporary skilled visa holders in Australia, many of whom are critical workers. The Australian Labor Party has expressed concern over the absence of temporary skilled visa holders from the JobKeeper scheme. Whether this leads to amendments or an exercise of power by the Treasurer, who under the legislation has the capacity to make adjustments to who is eligible, remains to be seen.
There are a number questions other than those above that we have been receiving from our clients, including client-specific scenarios relating to other work visas. The financial health of your team is one of the keys to getting through this period. To help out, the Keypoint Law Corporate Migration team is making themselves available to you for a no-obligation consultation. Please reach out if this is something that could help support your business during this unprecedented time.