On 4 April 2020, the Acting Minister for Immigration, Alan Tudge issued a media release regarding 482 / 457 visa changes due to Coronavirus. A Minister’s announcement is not law and legislation and policy changes must be be made. As of today*, 14 April 2020, there have been no amendments to the migration legislation or policy for either the 482/457 visa conditions or sponsorship obligations. We will issue an update when changes to policy are released.
*Update – as of 28 April 2020, there are still no changes in the migration legislation or policy documents.
The Acting Minister advised in his statement that 457 and 482 visa holders who have been stood down, but not laid off, will maintain their visa validity and sponsors will have the opportunity to extend their visa as per normal arrangements. Sponsors will also be able to reduce the hours of a 457 or 482 visa holder without the person being in breach of their visa conditions.
The Acting Minister further stated that any 482 or 457 visa holders who have “ceased employment”, as opposed to being “stood down” due to coronavirus, will need to meet their visa conditions and either find a new sponsor, lodge another valid visa application or depart Australia within 60 days of their employment ceasing.
There was no mention in the Minister’s announcement of an amendment to the employer’s sponsorship obligations.
The Minister stated that 482 and 457 visa holders will also be able to access up to $10,000 of their superannuation this financial year.
Until such time as the migration legislation or policy has been changed, as registered migration agents, we must advise the below criteria be met by sponsors and visa holders.
Current, as of 14 April 2020, policy regarding 482 / 457 visa changes due to Coronavirus
An employer may reduce the hours of a 457 or 482 visa holder due to Coronavirus (Covid-19) but the employer must notify DHA. The employer must also continue to pay the visa applicant the full salary as stated in the nomination, for each pay cycle, and that salary must continue to be the same or higher than the salary offered to an equivalent Australian employee.
Two issues need to be considered, the employer’s sponsorship obligations and the employee’s visa conditions. An employer must notify DHA when certain events occur including change of hours or work conditions. It is likely the sponsor will be found in breach of their sponsorship obligations for reducing hours and/or pay conditions due to the coronavirus.
Under the sponsorship obligations an employer must notify the Department of Home Affairs, when certain events occur. Employers can do this by requesting their migration agent notify DHA, sending an email email@example.com or by completing the notification of changes form in their sponsorship (SBS) Immiaccount.
The below information applies to all sponsors of 482 visa holders, and sponsors that transferred an existing 457 visa holder to their business and therefore had a nomination submitted on or after 18 March 2018.
A sponsor must ensure:
- the annual earnings are no less than the sponsor indicated would be provided at the time the nomination was approved
- the earnings being received are not less than what would be received by an equivalent Australian worker
- the employment conditions (other than earnings) received by the sponsored person are no less favourable than would be received by an equivalent Australian worker
The Department of Home Affairs can use any 3 month to 12 month period to assess these sponsorship obligations are met. These conditions must continue to be met and no variation has been announced due to the Coronavirus (Covid-19).
A standard business sponsor may fail to meet their sponsorship obligations if:
- the total annual salary is less than specified in the nomination
- the earnings are equal to the nominated earnings, but the visa applicant worked more hours that those stated in the nomination application
- the hourly rate is reduced
- the hours of work have reduced, resulting in the wage being reduced for a particular pay cycle/s
- the visa applicant works unpaid hours
- the earnings of an equivalent Australian worker have increased since time of nomination approval, and the visa applicant’s salary has not increased
Assessing earnings in comparison to what an equivalent Australian worker would earn
Where a nomination was approved in the last 12 months, officers are only required to use the sponsored person’s nominated earnings. However, after 12 months from nomination approval where a sponsor has an equivalent Australian worker, their current earnings need to be used for the comparison.
Where there is no equivalent Australian worker, officers should request information from the sponsor that demonstrates what the current earnings of an equivalent Australian worker would be at time of monitoring.
It is a requirement at time of visa grant for most 482 and 457 nominations that the nominated occupation is for full-time employment. If a sponsored person’s hours were reduced to part-time, sponsorship obligations may not be met as the decrease in the person’s earnings (or terms and conditions of employment) may result in less favourable terms and conditions, earnings less than the nominated salary. Where part-time work arrangements occur, it will not be possible for a sponsor to comply with its sponsorship obligations because the visa applicant’s earnings will drop below the required rate.
Where part-time work occurs due to a decline in business, change in business structure or the personal preference by the visa holder, sponsorship obligations cannot be met.
Under policy, sponsorship obligations would be considered met where periods of part-time work occur in connection with:
- graduated return from maternity leave
- sick leave or a work based injury
- Significant personal reasons.
And the following criteria are met:
- the pro-rata hourly rate of the approved nominated salary of the sponsored person does not decrease
- the role and duties conducted by the sponsored person remain consistent with the position approved at nomination
- the nominee is not employed under a Labour Agreement which was restricted to full-time arrangements only
- This arrangement is mutually agreed upon by the sponsor and sponsored person. Sponsors should maintain written evidence to demonstrate this agreement, and document the reason for the change.
Sponsors must notify DHA of any intention to offer such arrangements.
If sponsors do not meet their sponsorship obligations, DHA may take one or more of the following actions:
- bar the sponsor from sponsoring additional visa holders for a specified time
- not approve the sponsor’s application for sponsorship any other visa
- cancel all of the sponsors existing sponsorship approvals
- issue an infringement notice of up to $12,600 for a body corporate and $2520 for an individual for each failure
- apply to a court for a civil penalty order of up to $63,000 for a corporation and $12,600 for an individual for each failure
- suspend or terminate the work agreement (labour agreement)
Visa applicants are required to notify DHA:
- changes to the visa applicant’s phone number, email, address or passport
- changes to employer
- changes to employment status including promotions and changes in hours
- changes to relationship status
- the birth of a child
If a visa applicant stops working for their sponsor, they must take one of these actions within 60 days or they will be in breach of their visa conditions:
- find a new employer to sponsor you and lodge a new nomination (approved by us before you can start working for them)
- be granted a different visa
- leave Australia
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