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Coronavirus & work changes |16 FAQ’s exploring the consequences for 457/482 visa holders

31 Mar

 

 

 

The coronavirus crisis has caused many employers to stand workers down, retrench them, reduce their hours, or change their duties.   Whilst this is awful enough for a worker not needing a visa or with no work conditions on a visa, employer actions such as these may have serious implications, including visa cancellation if you are a Subclass 457 or Subclass 482 Visa holder.

 

 We’ll answer your most burning questions.

In this article, we will answer your most common questions about what might occur during this time and what the implications are for you as a sponsored worker, including:

 

 1. My employer has reduced my hours to part-time, is this okay?

When you are nominated for a Subclass 457 or subclass 482 visa, your employer must undertake to employ you full-time (there are very limited exceptions to this rule), and it is a condition of your visa that you work full-time, and you are paid the amount of money promised in your employment contract that was approved by the Department of Home Affairs when it approved your nomination.

Part-time work may be allowed where someone is making a return to work after maternity leave, following an injury or illness or for other exceptional reasons – however,

  • the same hourly rate must be paid to you, as promised in your contract.
  • you must perform the same duties as described in your approved nomination
  • you must have a written agreement in place between yourself and your employer outlining the change in work hours, and the reason for doing so.

It is not clear whether the DHA will accept that the current coronavirus situation amounts to “exceptional reasons” –  however on any take of this unprecedented situation we find ourselves in, It is truly exceptional. We are currently awaiting advice from the DHA and will publish an update as soon as we receive it.

 

2. I am employed under a labour agreement, will things be different for me?

If you are employed under a labour agreement, it is unlikely that the DHA will allow much leeway with respect to your working hours, as a Labour Agreement is a contract between the DHA and your employer.  There are clauses within Labour Agreements that allow for renegotiation of the terms of the labour agreement, and there are also allowances for mediation of disputes and other pathways for variation of terms and/or dispute resolution.

As above, if the government is genuine in its belief that this period of economic upheaval resulting from Covid-19 is indeed “hibernation” and not termination, that it is reasonable in my view to anticipate that the DHA would vary terms of a labour agreement to reflect any necessary reduction of hours/payments etc.

 

 3. My employer has stood me down until the coronavirus crisis is over and the business starts up again.  is this okay?

Being  “stood down” is different from being terminated or retrenched. There is a provision in the Fair Work Act allowing for employers to stand down workers in certain circumstances, and the current circumstances with respect to coronavirus and business closures would apply, to allow an employer to stand down workers.  When an employer stands down a worker,  the employer is excused from paying that worker wages.

If a worker is taking unpaid leave or other leave at the time the business stands down other workers, that worker is taken not to have been stood down under the Fair Work Act (FWA).

The Department of Home Affairs states in policy that it is bound by the operation of the FWA unless the FWA specifically excludes its operation from the Migration Act.  As a result, and even if contrary to  DHA policy, if a  Subclass 457/482 worker is stood down by the employer, because of a forced business shutdown the National Employment Standards under the FWA will apply to that worker, which in our view would prevent any sanctions or visa cancellations under the Migration  Act or the Migration Regulations from being legally enforceable.

Fair Work Australia has published a helpful guide about Coronavirus and employment which you can find here.

 

4.  My employer has terminated my employment.

If your employer has legally terminated your employment, you technically have 60 days to find yourself another employer who must lodge a new nomination for you. We are uncertain whether or not the DHA will extend the 60 day period or not, but if information comes to hand from the DHA, that they intend to do this, we will publish it immediately.

 

5.  Can I take leave without pay?

DHA policy allows a Subclass 457 or a Subclass 482 visa holder to take unpaid leave if they enter into a proper agreement with their employer. Under policy however, Subclass 457 visa holders may take up to 12 months unpaid leave, whereas Subclass 482 visa holders may only take up to 3 months leave without pay.

As we discussed in paragraph 3, the DHA is bound by the terms of the Fair Work Act. Under this  Act, all employees are entitled to take unpaid leave, however this still leaves the DHA with the opportunity to cancel your visa, if the leave without pay is extensive, on the basis that you do not have a genuine intention to perform the occupation for the employer.

If you are considering leave without pay (or your employer is) it is important that you and your employer:

  • You have written to your employer requesting leave without pay, which your employer has approved in writing, and you
  • Have a written agreement in place outlining the terms and conditions of the leave without pay and its length.

 

Once again we repeat that under the current crisis situation, we expect that the DHA takes a compassionate view of sponsored visa holders,  the work consequences (i.e. the “hibernation”) they find themselves in, and any extended periods of leave without pay during the relevant period.

 

6. Is my employer allowed to pay me less?

Your employer is technically not allowed to pay you less than the amount promised to you in your employment contract at the time that your nomination was approved. Should your employer feel the necessity to pay you less,  he/she must lodge a new nomination, and wait for it to be approved before being allowed to pay you the new figure.

 

7. I am currently offshore as the holder of a Subclass 457 (or 482) Visa. Can I return to Australia?

The DHA has provided a specific list of people they will allow to travel to Australia. These include:

  • Australian citizens,
  • Australian permanent residents,
  • spouses, children, partners and  legal guardians of citizens and permanent residents,
  • New Zealand citizens normally resident in Australia
  • New Zealand citizens transiting through Australia, as well as a couple of other automatic exemptions.  (Read more about the travel exemptions in our recent blog article here)

We are unsure whether or not  Subclass 457 or 482 Visa holders will be allowed to travel to Australia however, the DHA has outlined some compassionate circumstances that would  allow  you to travel. These currently include caring for close relatives or attending a funeral.

Even if your circumstances do not fit those described in policy, you can still apply for an exemption to travel by completing the DHA’s  Enquiry Form, which you will find here.

Further clarification may be forthcoming from the DHA, which will post immediately.

 

 8. If I’m stuck overseas, can I work for my Australian  employer while I wait to come back?

By agreement, you may work for your Australian company overseas, if it is possible to work remotely. You would be advised to have a written agreement in place prior to commencing any employment overseas. Further, keep in mind that any employment overseas may not be counted towards a transitional Employer Nominated Visa in the future, however this may change under policy given the current environment where Subclass 457/482 visa holders may be unable to return to Australia.

 

9. My employer would like me to perform other duties during this time. Is this okay?

It is usually forbidden to perform duties outside the scope of the occupation’s duties for which you were nominated, and doing so may result in visa cancellation. If employers want you to perform other duties, they are generally required to lodge a new nomination with respect to the new occupation that you are engaged in. However, if the change in duties does not exceed 60 days, this is allowable under policy.

 

10. If I am terminated or stood down,  can I work for somebody else?

Unfortunately, the conditions of your visa prevent you from working for anybody else, and to do so may result in visa cancellation. However, if the new employer is willing to nominate you to work in their business, you may work there as soon as the new nomination is approved.

Again, there may be relaxation and policy with respect to this requirement – if so we will publish this immediately.

 

11. If my employer terminates me,  can I insist that he pays for my ticket to fly home?

You are entitled to request that your employer pays the reasonable cost of your return flight back to your home country for yourself and your family if your family was included in the nomination.  You must request this in writing, and only economy flights are included. Your employer must respond and make payment within 30 days of receiving a request.

 

12. If I don’t want to go back home can I work for somebody else?

You will have 60 days to find a new employer who will nominate you. If you find an employer who is willing to nominate you, you may not work for them until the nomination is approved.

 

13. As a subclass 457/482 visa holder  am I entitled to any of the Job Keeper package payments announced last night?

Unfortunately, the JobKeeper package announced by the government on 30 March 2020 does not apply to any temporary visa holders including those holding a Subclass 457 or Subclass 482 visa. We are hoping that this will either be changed, or a new package will be announced for  Subclass 457/482 visa holders

 

14. Am I entitled to Centrelink or my superannuation?

Currently, Subclass 457/482 visa holders are not entitled to Centrelink payments, however  you may be able to claim some of your superannuation payments. Please contact your superannuation fund provider to find out if this is possible.

 

15. Can I get my superannuation if I leave Australia?

You are entitled to claim your superannuation back in any event upon departure from Australia. Please see our recent article about how to do this here.

 

16. Do you think that the DHA will relax some of the conditions attached to our Subclass 457/482 visas?

As stated several times in this article, we are hoping that the DHA will provide us with further policy with respect to perhaps relaxing some of the conditions attached to the  Subclass 457 and 482 visas, and we will notify you immediately upon receipt of any further information or concessions.

 

 

If you need further help unravelling all of the complexities attached to your Subclass 457/482 visa resulting from the Coronavirus crisis, or you need a new visa or nomination application, please book a consultation by clicking here, and  we will be delighted to  assist you.

We have significantly reduced the cost of our consultations at this time.

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