ARTICLE
21 April 2023

482 Visa Termination of Employment

JS
JB Solicitors

Contributor

Our team would be known as inspiring leaders within the community, displaying strong leadership on important issues in society even if it comes at a short-term cost. In delivering value by being both innovative and convenient, using technology and shifting the culture of work-life in the profession, we will attract the best and most diverse team of people. By creating opportunity and revolutionising our segment of the Profession through innovation and convenience for clients, we will assert a strong belief that having work experience at JB Solicitors is a door-opening in the legal profession. The knowledge and experience gained in working at our firm will be equivalent to, if not better than, obtaining an internship at a large top tier law firm.
A TSS visa (Subclass 482) allows skilled workers to work for an approved Australian employer for up to four years.
Australia Immigration
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What can visa applicants do if they encounter a 482 visa termination of employment? To understand this situation better, let's first discuss what a 482 visa is. The Temporary Skilled Shortage Visa (Subclass 482) allows skilled workers to work for an approved Australian employer for up to four years. To be eligible for this employer-sponsored visa, the applicant must:

  • Have a valid job offer from a sponsoring employee
  • Have the skills and qualifications necessary for the nominated position
  • Meet health and character requirements

The 482 visa also has three streams. These are the Short-Term stream, the Medium-Term stream, and the Labour Agreement stream. The stream that an applicant applies under will depend on their occupation and the length of their job offer. Read on to know more about 482 visa termination of employment.

Reasons for a Temporary Skill Shortage Visa Termination of Employment

1. Redundancy

Redundancy refers to a situation where an employer no longer requires an employee's services to be performed by anyone. It can also refer to a business that downsized and needs to reduce its workforce. In other words, it is a form of job loss that is not related to the performance or conduct of the employee.

A redundancy situation can arise due to a number of reasons, such as:

  • Changes in technology
  • Restructuring of the business; or
  • A decline in the demand for the employer's goods or services.

When an employer decides to make an employee redundant, they must follow a fair and lawful process. The process usually involves consultation with the affected employee and providing them with appropriate notice or pay in lieu of notice.

2. Breach of Employment Contract and Conditions

A 482 visa termination of employment may also occur if a worker breaches an employment contract. In fact, all TSS visas are subject to a condition referred to as condition 8607. The 8607 condition requires applicants to only work in their nominated occupation for the employer that is sponsoring them.

Also, applicants cannot perform work that is not related to their nominated occupation under this condition. Visa conditions for many temporary working visa holders, including those on a 457/482 visa, often include condition 8107. The 8107 condition states that workers must continue working for their sponsoring employer and must not cease employment with the current sponsor for more than 60 days.

Here are some instances where a TSS visa holder may breach their employment contract that may disadvantage an employer:

  1. Failure to show up to work without prior notice
  2. General misconduct or poor performance
  3. Breaching confidentiality or intellectual property rights
  4. Working for another employer without consent or permission
  5. Breaching visa conditions

If any of these conditions apply, the employer may terminate the worker's contract and report to the Department of Home Affairs (DHA).

3. End of the Visa Period

A 482 visa termination of employment may also occur if the 482 visa applicant's visa is about to expire. TSS visas usually last up to 4 years if an International Trade Obligation (ITO) applies. Applicants who are Hong Kong passport holders may stay up to 5 years. TSS visa holders may also re-apply and renew their passports for:

4. Changing of Sponsors

Did you know that applicants who hold a 457 or 482 visa may transfer their sponsorship to a new employer? This is only possible if the new sponsor can nominate the visa applicant on a TSS 482 visa. TSS visa holders cannot start working for a different employer unless that employer has an approved nomination. In order for the new employer's nomination to be approved, the new employer must:

  • Be an approved sponsor.
  • Nominate the proposed employee in an eligible or same occupation. The job at hand must either be on the list of qualified skilled occupations or stated in the employer's labour agreement stream.
  • Advertise the relevant position for at least 28 days in the four months preceding the nomination on two different job platforms with a national reach.
  • Have no negative information about their company or anyone associated with it.
  • Promote the relevant position as a genuine and full-time job.

Note: A worker's visa may be cancelled in 60 days if they cannot find another employer to sponsor them before their visa expires. Workers who are unable to make alternative arrangements within this timeframe may have to return to their home country.

482 Visa Termination of Employment: Unfair Dismissal

482 visa holders may also make a claim for unfair dismissal if they believe the termination was harsh or unjust. However, there are some restrictions on who can make an unfair dismissal claim under Australian laws. According to the Fair Work Act 2009, a person is eligible to make a claim for unfair dismissal if they:

  • Are an employee who has completed a minimum of 6 or 12 months depending on the business size
  • Have been dismissed from their employment
  • Are not a casual employee
  • Are not employed for a specified period of time or task

Visa holders who experienced a 482 visa termination of employment should know that:

  • There are no restrictions that prevent the worker from coming back to Australia in the future, either through a sponsored 482 visa for a different employer or another type of visa.
  • Their approved sponsor is liable to approved occupation pay reasonable and necessary costs for the sponsored employee and their family members to depart from Australia.
  • They are entitled to receive a lump sum payment of the superannuation payments that have accumulated during the duration of their work.

Importance of Seeking Legal Advice

It's crucial for 482 visa holders to seek legal advice if they believe their 482 visa termination of employment is wrong or unjust. A wrongful dismissal can have serious consequences for the visa holder, including the possibility of visa cancellation and having to leave Australia.

Our immigration lawyers at JB Solicitors can aid in the visa application process and in making unfair dismissal claims and also:

  • Inform the visa holder of their rights and options
  • Negotiate a settlement with the visa holder's nominating employer
  • Represent the visa holder in court if further legal matters arise
  • Protect the visa holder's status
  • Help the visa holder look for another nominated employer should they decide to change sponsors
  • Help visa holders gain a permanent visa and permanent residence

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
21 April 2023

482 Visa Termination of Employment

Australia Immigration

Contributor

Our team would be known as inspiring leaders within the community, displaying strong leadership on important issues in society even if it comes at a short-term cost. In delivering value by being both innovative and convenient, using technology and shifting the culture of work-life in the profession, we will attract the best and most diverse team of people. By creating opportunity and revolutionising our segment of the Profession through innovation and convenience for clients, we will assert a strong belief that having work experience at JB Solicitors is a door-opening in the legal profession. The knowledge and experience gained in working at our firm will be equivalent to, if not better than, obtaining an internship at a large top tier law firm.
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