COVID-19 FACT SHEET FOR EMPLOYERS

The COVID-19 outbreak is having a substantial impact on many services and organisations. We are receiving an increasing volume of enquiries from visa holders and businesses who want information about their rights and obligations as they navigate the challenges of enforced business closures, social distancing policies and overall economic downturn. Many businesses are finding they have no option but to reduce work hours, pay, stand down employees completely or terminate employment.

Given that this situation is unprecedented the current policy and legislative framework does not adequately address what would happen in this type of scenario.

We are continuing to lobby for our clients and voice these concerns with our peak Industry body the Migration Institute of Australia (MIA) so we can provide more detailed answers.

This information should be read in conjunction with information from the Fair Work Ombudsman and does not constitute legal advice.

You may also need to seek independent advice to ensure any actions taken are in accordance with the Fair Work Act.

https://coronavirus.fairwork.gov.au/

Can I reduce the salary of my sponsored workers?

No. A 457/TSS visa holders’ annual salary cannot be reduced below the annual earnings on the approved nomination.

Eg. John’s approved annual salary on his nomination notice is $80,000, John is continuing to work for the business full time but has signed a contract to state his new annual salary will be $70,000.

Sponsors who have reduced the salary of their sponsored workers who are continuing to work full time are in breach of their sponsorship obligations even if the visa holder agrees to this change.

Temporary Stand Down/Leave Without Pay (LWOP)

If you do not require your employees to undertake work for a period of weeks, or a certain number of days per week (temporary stand down) we suggest such arrangements are discussed with employees and recorded as approved LWOP in line with the conditions outlined below which are currently accepted under policy.

LWOP should generally not exceed three months, unless the sponsor is obliged to provide the leave under Australian workplace laws. Eg Maternity leave

For any LWOP, it is expected that:

• the arrangement is mutually agreed upon by the sponsor and sponsored person.
• there is a formal application for leave without pay that has been formally approved by the employer (including leave applications that are processed and approved electronically).

Our representations to the Minister are that there should be no adverse impact to sponsors who enter into LWOP agreements with their sponsored employees.

What if the position is redundant or employment has terminated?

You need to pay the employee statutory entitlements such as accrued annual leave. You need to notify the department of the cessation of employment within 28 days of the last day of employment. You may also be required to pay return travel costs of the sponsored person and their family members if you receive a written request. The payment must be made within 30 days of receiving the request.

Financial Support During COVID-19 Crisis

Unfortunately, 457/TSS visa holders are not eligible employees for the JobKeeper payments being rolled out through businesses.

There is strong industry support and government lobbying to change these measures and to introduce assistance for those visa holders, we will continue to advocate for our clients on this matter.

From mid-April visa holders may be entitled to make an early withdrawal from your Superannuation fund.

Please refer to the ATO website for information about early access to super:

https://www.ato.gov.au/individuals/super/withdrawing-and-using-your-super/early-access-to-your-super/?anchor=Compassionategrounds#Compassionategrounds