In brief - This article provides a reminder of what employers need to know about their current sponsorship obligations when it comes to employees sponsored on 457/Temporary Skill Shortage (TSS) visas.
Recent developments of COVID-19 have caused major disruptions to businesses and their ability to continue to operate and employ staff. As of 31 December 2019, there are 64,590 primary 457/TSS visa holders in Australia1 who will likely be affected, as businesses shut down or temporarily operate at reduced capacity. These visa holders could have their work hours reduced, be temporarily stood down or be made redundant.
The impacts of COVID-19 do not seem to be contemplated by the current employer sponsor obligations framework in regards to Leave Without Pay (LWOP) or stand down. Where there is a reduction in pay, there is likely a breach/non-compliance with sponsor obligations. The Department of Home Affairs (the Department) will assess compliance on a case by case basis. Employers should seek immigration and employment law advice to consider potential compliance implications before a decision is made to change the sponsored employee's terms and condition of employment.
There is limited information currently available to confirm whether there are temporary concessions granted to sponsoring employers who are affected by COVID-19. We expect that further information will be released in the coming days addressing the Department's approach regarding sponsorship compliance. In the interim, we recommend that businesses wait for further information to be made available before decisions are made regarding overall operations and staffing, particularly those on 457/TSS visas.
We present below some of the considerations employers should take into account regarding the Department's current position on common sponsorship obligation questions we have received to date in the wake of this global health crisis.
Key points
- Employers need to be aware of their sponsorship obligations and maintain ongoing compliance with these obligations.
- Changes in the terms and conditions of employment of a sponsored employee can trigger certain sponsorship obligations and notification requirements to the Department.
- There are no exemptions because of COVID-19 from employer sponsor obligations requirements or visa conditions 8107/8607 in regards to LWOP or stand down. Where there is a reduction in pay, there is likely a breach/non-compliance with sponsor obligations.
Employer sponsor obligations
Employers who sponsor employees on 457/482 TSS visas are subject to a set of sponsorship obligations. Some of the obligations apply beyond the term of sponsorship approval. For a full list of Standard Business Sponsorship obligations, please see here.
Failure to comply with sponsorship obligations can result in business sponsorship cancellation and/or fines and sanctions imposed. Businesses who do not comply are named and shamed on the Department's website.
The Department of Home Affairs sponsor monitoring unit conducts site visits and audits sponsoring employers. If a monitoring request is issued, employers will need to be in the position to provide a response by providing the requested information and address any identified breaches of sponsorship obligations.
Common sponsorship obligation questions during COVID-19
Question:Can I reduce the TSS visa holder's current work hours? |
Department's current policy position:
and:
Under employment law obligations such changes cannot be made unilaterally. Reference should be had to the employee's Award, Enterprise Agreement, Contract and the Fair Work Act before implementing such a change. |
Relevant Sponsorship Obligation/visa condition:
Reg. 2.79 |
Assessment: Yes, but under very limited
circumstances. A COVID-19 shutdown does not fit within any of the
categories listed above. |
Question: Can I temporarily stand down a TSS visa holder? |
Department's current policy position: If a TSS visa holder is temporarily stood down due to downturn in the industry, they may be considered to have ceased employment and the visa holder may be in breach of condition 8607 if:
if more than 60 consecutive days has elapsed since lay-off. |
Relevant Sponsorship Obligation/ visa condition: Visa condition 8607 - must not cease employment for more than 60 consecutive days |
Assessment: Yes. It appears
that a temporary stand down period of less than 60 days is not
considered a breach of condition 8607. |
Question: Can I put the TSS visa holder on Leave Without Pay (LWOP)? |
Department's current policy position: LWOP
is generally acceptable if it is for maternity/paternity leave,
sick leave, a work based injury, or significant personal
reasons. |
Relevant Sponsorship Obligation/ visa
condition: Reg. 2.79 Obligation to ensure equivalent terms
and conditions of employment. |
Assessment: No - if it is a COVID-19 related
stand down. Business downturn does not appear to meet policy
guidelines regarding LWOP and will not necessarily meet the stand
down provisions of the Fair Work Act either |
Question: What are my obligations if I have let a TSS visa holder go/terminated their employment? |
Department's current policy position: |
Relevant Sponsorship Obligation/ visa
condition: Reg. 2.84 Obligation to provide information to
Immigration when certain events occur. |
Assessment: The TSS visa holder will have 60
days from cessation of employment to apply for another visa that
they are eligible for, find another sponsoring employer or make
arrangements to depart Australia. |
Compliance with the Migration Act 1958 and the Fair Work Act 2009
Please note, employers who sponsor 457/TSS visa holders must comply with both the Migration Act 1958 and Fair Work Act 2009 legislation, applicable Awards and Enterprise Agreements, contracts and any other relevant federal or state legislation at all times.
A sponsored persons terms and conditions of employment that meet the requirements under the Migration Act will not automatically meet the requirements under the Fair Work Act. It is important that professional advice is sought to ensure that all relevant obligations are discharged on both sides.
Footnote
1 Department Home Affairs: Temporary Resident (Skilled) report 31 December 2019 Summary of key statistics and trends: https://www.homeaffairs.gov.au/research-and-stats/files/temp-res-skilled-rpt-summary-31122019.pdf
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.