If your business engages employees on sponsored visas, how best to manage them in this uncertain time?
We would first recommend clearly identifying all employees who hold temporary visas – those visa subclasses are most likely to be 482 / 457s, student, and working holiday visas. Confirm each expiry date (can be done online via VEVO). Visa holders with expiries in 6 – 12 months, should have a measure put in place to ensure they do not overstay their visa and become unlawful. It is going to be hard for them to leave Australia, and important they have valid visas ready at the expiry of their current visa.
The Department of Home Affairs has indicated they will take an approach to ease visa ‘renewals’ for visa holders allowing them to stay lawfully in Australia, and to help ease some of the pressures being experienced by Australian businesses. For example they have allowed student visas working in supermarkets and aged care facilities to extend their working hours.
Visa Holders Currently Overseas
If you have visa grants that have been given to a candidate who is currently overseas, you will need to wait for international travel restrictions to be lifted. Temporary visas have a first entry date which indicates when someone must enter Australia in order for their visa to take effect. If it is likely this date will be missed, get in touch.
482 or 457 visa holders who spend periods outside of Australia are not considered to have ceased employment by their absence from Australia. However significant time spent outside Australia could invite the DHA to question the sponsor and applicant as to whether the visa is genuinely needed. It is highly likely COVID-19 constitutes reasonable grounds for being absent from Australia, and the applicant will not be understood to have breached condition 8607.
Can working hours be reduced for 457 / 482 holders?
It is a condition of the 457 / 482 that they be employed (and remunerated) for full time work. Exceptions can be made in relatively narrow circumstances: maternity, sick leave / leave due to a work based injury, or “significant personal reasons.” A reduction in hours could constitute a breach of your obligations as a sponsor. Our recommendation is to leave this option as a last resort, and to only do so after speaking with a migration lawyer. An easier option may be to request the candidate to take leave.
Leave Periods and Visa Holders
In terms of leave entitlements, visa holding employees should be treated in the same way as other employees who are Australian citizens or permanent residents, and remain similarly subject to the provisions in the Fair Work Act and other relevant legislation. Specific to these visa holders, they cannot be without work for their sponsor for longer than 60 consecutive days (90 days for some older 457 holders). Unpaid leave is not seen as a cessation of employment by the DHA – provided it does not exceed the 60 days mentioned above. Periods of unpaid leave will need to be agreed on mutually with the sponsored worker, with a formal application for leave without pay having been made. In the event of a stand down or other government approved absences, the DHA would typically treat this situation as it does unpaid leave.
Conclusion
In the uncertain context of this pandemic, we recommend speaking with a migration agent / lawyer to ensure that your plans comply with your obligations as a sponsor. The situation of uncertainty is likely also causing stress to visa holders in your organisation, so transparency, reassurance, and demonstrating that a contingency plan has been considered will go a long way to providing them with some peace of mind.
Ezra is a founder of OpenLegal. Having spent the last decade working with startups, small businesses and corporates, Ezra is evolving a client-centric experience that tightly integrates digital technology with project managed services. His legal focus is employment, corporate and migration law.
Phil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.
