Many employer sponsors will be wondering what changing business circumstances will mean for their subclass 457 or 482 visa holding workforce.

Please note that our industry body, The Migration Institute of Australia, is in communication with the Department of Home Affairs and any advice provided by the department will be circulated as a priority.

To assist with what we know at this stage please find below some FAQs which are relevant to employer sponsors.

1. Is it possible to place my sponsored employee on leave without pay (LWOP)?

You can place 482 or 457 visa holders on unpaid leave. This is not considered to be in breach of their visa conditions solely on the basis of this unpaid leave. This is because these visa holders may be considered to continue to be in the employ of the sponsor (although not working or receiving a salary).

Under Immigration policy, the period of leave should not exceed three 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.

For an LWOP scenario, employer sponsors need to ensure that the arrangement is mutually agreed upon by the sponsor and sponsored person and there is a formal application for leave without pay that has been formally approved by the employer.

If the Department of Home Affairs is satisfied that the visa holder has ceased to have a genuine intention to perform that occupation, where extended LWOP has taken place, a visa may be subject to cancellation.

We are hopeful that the department will soon release Covid-19 specific policy surrounding the ‘exceptional circumstances’ mentioned above. As soon as we have more information we will share it with our clients.

2. Is it possible to change my sponsored employee’s hours to part-time?

It is a requirement at time of visa grant for a 482 visa that the nominated occupation is for full-time employment. Generally, approved nominations for subclass 457 visas are full-time.

If you were to place your sponsored employee on part-time hours you run the risk of not meeting your sponsorship obligations as their earning would be less than the nominated salary. It could also be to be less favourable terms and conditions for the sponsored employee.

Under immigration policy the sponsorship obligations would be considered met if part-time work occurs for significant personal reasons & the following criteria are met:

1. Their role and duties remain the same.

2. The part-time arrangement is mutually agreed upon by the sponsor and the sponsored employee and is documented as such.

3. The pro-rata hourly rate of the nominated salary does not decrease

The policy does not currently detail what is covered under ‘significant personal reasons’ and whether this can be extended to cover businesses affected by the coronavirus restrictions. We have sought further information from the Department of Home Affairs on this point.

3. Is there a way I can reduce my sponsored employee’s salary?

Yes, it can be done if you lodge a new nomination application with a lower salary. However this new lower salary must still be at least the market rate and above the Temporary Skilled Migration Income Threshold (TSMIT), currently AU$53,900.

4. Can I stand my sponsored employee down temporarily and they can work for someone else until the time that they can come back and work for us?

Currently no. Visa conditions 8107 and 8607 of the 457 and 482 visas respectively limit the holder to only working for their sponsoring employer. We are checking with the Department of Home Affairs of any special exemptions to this.

5. Will temporary residence visa holders laid off be able to access their superannuation and or welfare benefits?

This has not yet been clarified by the Federal Government.

6. If I do have to end the employment relationship with my sponsored employees what extra do I need to do compared to Australian employees?

You need to notify the Department of Home Affairs within 28 days of them ceasing employment. If requested to by the sponsored employee you must pay for a one-way air ticket for the sponsored employee and their family to return home. You need to keep records of everything.

7. Is there anything else I need to notify the Department about?

Yes, there is. If your business ceases to exist, becomes insolvent or goes into liquidation or administration you need to notify the Department. Some examples of other events which require notification are if there is a change in business structure, business address, or the directors or owners of the business.

Things are very fluid at the moment as the Department and employers react to the COVID 19 virus situation. Please contact Four Corners to find out exactly where your business stands at info@four-corners.com.au or 02 8904 0100.