COVID-19 FACT SHEET FOR 457/482 VISA HOLDER

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 my employer reduce my salary?

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 are in breach of their sponsorship obligations even if the visa holder agrees to this change.

What if my employer doesn’t have any work? (Temporary stand down)

If your employer does not require you 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 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).

457 Visa Holders are subject to condition 8107 that stipulates if the holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days. (For 457 visas approved before 18 November 2016 this period is 90 consecutive days)

TSS Visa Holders are subject to condition 8607 that stipulates if the holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days.

Our representations to the Minister are that there should be no adverse impact to visa holders who enter into LWOP agreements with their sponsors in line with the above

What if the position is redundant or employment has terminated?

Your employer needs to pay your statutory entitlements such as accrued annual leave. Within 60 days you should either:

1. Find a company to transfer your sponsorship
2. Make arrangements to depart Australia
3. Apply for a new visa

IMPORTANT – YOUR VISA IS NOT AUTOMATICALLY CANCELLED IF YOU STOP WORK FOR 60 DAYS.

If you have not taken any action in line with the above the department first need to write to you with a Notice Of Intended Cancellation (NOIC) and provide you an opportunity to comment. The timeframe for this to happen is discretionary. We anticipate a more lenient approach will be taken given worldwide Travel Bans and flight restrictions. We anticipate a high number of visa holders will fall into these circumstances and we are urging the Minister to consider the overall adverse economic impact to business if 457/TSS visas are cancelled due to these provisions.

Financial Support During COVID-19 Crisis

Unfortunately, 457/482 visa holders are not eligible for government assistance at this point.

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