482 Visa Holders Affected by Coronavirus

457 & 482 Visa Holders & Coronavirus

The major groups of sponsored visa holders have 457 and 482 visas. The conditions on these two visas are similar but not identical.

Both visas have cancellation provisions where employment is terminated.

But both also allow for unpaid leave – such as for a sabbatical, study, recreational unpaid leave in excess of annual leave taken, parental leave, etc. For the 482 visa, a 3 month period of unpaid leave is permitted without the visa holder being considered to be in breach of their visa conditions, while for the 457 visa it is 12 months.

Periods of unpaid leave beyond 3 months on a 482 visa are, under policy, permitted where the sponsor is obliged to provide the leave (such as for maternity leave) or where exceptional circumstances apply. While no formal recognition exists, we would be confident that the coronavirus would constitute exceptional circumstances.

For any unpaid leave, it is expected the arrangement is mutually agreed with a formal application approved by the employer.

Therefore, employers only have an obligation to notify the Department of Home Affairs of cessation of employment where the employee has been permanently terminated.

Periods of unpaid work do not count towards the amount of time a 457 or 482 visa holder must work before they qualify to apply for an Employer Nomination Scheme visa in the Temporary Residence Transition Stream.

The Department of Home Affairs, The Government and MIA are working through issues relating to temporary visa holders attempting to find solutions.

Here is what you need to know as a 457 or 482 visa holder:

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Reduced work hours or wages

Part-time Work

The issue with part-time work is it would reduce earnings and this may result in a failure of sponsors to meet their obligations as it would constitute less favourable terms and conditions of employment or earnings less than the nominated salary in their 482 nomination application. Part-time work is permitted at the end of a period of maternity leave, sick leave OR significant personal reasons. The hourly rate of pay must not reduce and the duties must not change.

There are also specific exclusions of part-time work under certain Labour Agreements.

Policy does not yet specify what is covered under ‘significant personal reasons’ and whether this would cover businesses affected by the coronavirus but further guidance is expected to be issued soon by the Department of Home Affairs.

Reduction in Salary

Where wages are reduced, it creates a problem as the nomination for that person was approved on the basis they were being paid guaranteed annual earnings at or above the market rate for their occupation. Where wages are reduced, a new nomination is required and there is a risk it would be refused.

If the wages reduced to less than $53 900 – the Temporary Skilled Migration Income Threshold (TSMIT), a nomination approval would not be possible.

For non-sponsored temporary visa holders, there are no specific restrictions. For example, part-time employees who hold student visas or Working Holiday visas can be employed for less hours or not at all without there being any immigration implications. Employers should at all times employ those visa holders in line with the conditions on their visas (for example student must only work a maximum of 40 hours per fortnight while their course is in session).

If you have any questions, book a phone or Skype appointment to speak to one of our migration agents

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Other work

Primary holders of 457 or 482 visas are not permitted to work for any employer other than the one which sponsored their visa. Doing so is a breach of their visa condition likely to result in visa cancellation. This includes casual work for other employers and even voluntary work which would normally attract remuneration.

They also may not work in a different occupation for their sponsored employer. If a change is proposed, a new nomination is required. Exceptions to this occur for temporary periods of up to 60 days (such as backfilling a job temporarily vacant).

457 and 482 visa holders are restricted under conditions 8107 and 8607, meaning they are limited to working only in their nominated occupation. Sponsors are also obliged to ensure that their 457 and 482 visa holders work in the nominated occupation.

If a 457 or 482 visa holder is found to be working in a different occupation, they are at risk of having their visa cancelled and the sponsor may face sanctions.

In order to change occupations, a 457 or 482 visa holder would need to lodge a new nomination in the new occupation and have this nomination approved before commencing in the role.
If you have any questions, book a phone or Skype appointment to speak to one of our migration agents

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Government Stimulus

To receive the JobKeeper benefits, employees need to meet the below criteria.
Essential details of the Jobkeeper program:

The program provides subsidies to employers to assist paying wages of employees of $1500 per fortnight.
Both the employer and employee must satisfy eligibility criteria.
Employers with a turnover under $1 billion must show a loss of 30% of revenue compared to a comparable period a year ago.
Employers with a turnover over $1 billion must show a loss of 50%.
Big banks subject to the banking levy are not eligible
Employees must have been employed on 1 March
May be full-time, part-time or long-term casuals employed longer than 12 months as at 1 March
Employees must be aged 16 or over and be Australian citizens, permanent residents or holders of a non-protected special category visa who has been residing continually in Australia for 10 years or more, or a New Zealander on a special category (subclass 444) visa. This leaves out all temporary visa holders such as students, subclass 457, 482 or 485 holders and Working Holiday visa holders.
Employers will be paid $1500 per fortnight per eligible employee and then the employer must pay the balance of the salary. Tax is deducted as usual.
The provision will last for a maximum of 6 months from 30 March.
Payments will be made to the employer monthly in arrears.
If an employee ordinarily receives less than $1,500 in income per fortnight before tax, their employer must pay them, at a minimum, $1,500 per fortnight, before tax. It is therefore possible for a long-term casual or part-time worker to receive more than their ordinary pay. This is as money provided to employers to subsidise wages must all be used for employees.
Employees who have been stood down must also receive the $1500 and the Government hopes employers who sacked employees would re-instate them and pay them a minimum of $1500 per fortnight before tax.
Payments will start first week of May – employers should register on the ATO website here – https://www.ato.gov.au/general/JobKeeper-payment/
Employers must continue superannuation payments but note where the jobkeeper payment exceeds the usual salary an employee receives, superannuation payments only need to be made o top of the usual salary.

Earlier in March, the Government announced other initiatives for business –

Boosting Cash Flow – the Government is providing up to $100 000 to eligible small and medium sized enterprises that employ people with a minimum payment of $20 000. This will be done via Business Activity Statements. A full summary is here – https://treasury.gov.au/sites/default/files/2020-04/fact_sheet-boosting_cash_flow_for_employers.pdf
The Government will guarantee unsecured loans of up to $250 000 for a term of up to 3 years
Increasing the instant asset write-off – business can immediately deduct purchases of eligible assets of less than $150 000, up from $30 000.
Increasing the threshold at which creditors can issue a statutory demand to $20 000 up from $2000.

Businesses should fully avail themselves of these provisions.
The Government has not announced any financial support tailored towards temporary residents in Australia impacted by the Coronavirus. It would appear that only holders of 491 and 494 visas may be eligible for Special Benefit if they have no other means of support, but there is no indication for any support for 457, 482 or other visa holders who have lost employment during the crisis.

Additionally, most of these visa holders are unable to travel home due to closed borders, potentially creating a large number of people with no work or financial support in Australia.
If you have any questions, book a phone or Skype appointment to speak to one of our migration agents

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Leave Without Pay (LWOP)

482 and 457 visa holders are eligible to be placed on unpaid leave and are not considered to be in breach of their visa conditions (e.g. to study, for holiday leave without pay; sick leave without pay; parental/carer/personal leave; maternity and/or paternity leave).

457 and 482 visa holders are still considered to be employed, even if they aren’t receving a salary, however, there are some thing to consider:

Under Immigration policy, the period of unpaid leave should not exceed three months unless:

the sponsor is obliged to provide the leave under Australian workplace laws (e.g. maternity leave); or
exceptional circumstances apply.

It is expected that Leave Without Pay (LWOP),

it is mutually agreed upon by the employer and employee; and
a formal application for leave without pay that has been approved by the employer

We expect that the Department of Home Affairs will release a Covid-19 specific policy surrounding the ‘exceptional circumstances’.

Please note: There are different policies for unpaid leave for the 457 (8107) and the 482 (8607) visas. The 8107 condition allows up to 12 months’ leave on a 457 visa.

If you have any questions, book a phone or Skype appointment to speak to one of our migration agents

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Termination

Where an employee has been terminated, employers are obliged to notify the Department of Home Affairs no later than 28 days after their last day of employment.

The employee will then have 60 days (90 if they hold a 457 visa) to identify an alternative employer or make a visa application. After that period elapses, the Department of Home Affairs will write to them notifying that grounds exist for visa cancellation, to which they will have a further 28 days to respond if they are still in Australia.

If their visa is then cancelled, they become unlawful and are subject to detention and removal.

If you have any questions, book a phone or Skype appointment to speak to one of our migration agents

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