By Joy Hay – Registered Migration Agent MARN 1465325
The Covid-19 pandemic has impacted everyone in Australia, from citizens to temporary visa holders.
However, the scale of the coronavirus crisis means the Government is reportedly considering welfare options for people stranded in the country.
- Waiving 8503 conditions for everyone so people can more easily apply for other visas
- Introducing temporary visa extensions
- Removing labour market testing (LMT) levies and skilling Australians fund (SAF) payments to employers sponsoring overseas workers
The MIA has also raised issues around part-time working and leave without pay (LWOP) entitlements.
True Blue Migration Services Director Joy Hay recently spoke to 9 News about the Coronavirus-related issues facing visa holders in Australia.
457 and 482 visa holders impacted by Covid-19 crisis
If you are in Australia on a 457 visa or 482 visa, you more than likely signed a full-time contract. The vast majority of people holding these two visa subclasses work in excess of 37.5 hours weekly.
If your employer wants to reduce your hours as a result of the Covid-19 pandemic, you need to make sure that it doesn’t constitute a breach of your visa conditions. Don’t forget, when your employer sponsored you, they committed to paying you a set salary.
Employers may still be able to meet their obligations if they are forced to offer part-time hours due to maternity, leave, sick leave, work place injuries or significant personal reasons.
We’re waiting to learn whether the coronavirus situation constitutes a ‘significant personal reason’ to work reduced hours.
That aside, if you are given reduced hours for one of the reasons stated above, other criteria still need to be met. The pro-rata hourly rate cannot be less than you earned before, duties must be in line with the ANZSCO definition of the role you were sponsored in and the arrangement must be mutually agreed upon. Additionally, you can’t be employed under a labour agreement as they only cover full-time work.
If we hear anything more on this, we’ll update this article.
Are 457 and 482 visa holders entitled to JobKeeper payment?
The Government’s newly announced JobKeeper wages subsidy is only open to citizens, permanent residents, protected special category visa holders, non-protected special category visa holders who have been here over 10 years and New Zealanders on special category visas.
The Prime Minister is facing pressure from unions and business groups to extend this support to temporary visa holders too. As of yet, nothing has been announced.
Can a 482 or 457 visa holder change jobs?
The main point of the 482 visa scheme and the old 457 program is to allow people to work in a select number of occupations that are deemed to be in ‘shortage’ here in Australia. As such, you’re not allowed to work in an occupation that’s different to the one you were nominated to do.
We know this isn’t helpful if you’ve just been stood down and you’re stuck in Australia, but it’s what the regulations currently stipulate.
It is however possible to transfer to a new approved sponsor, provided you’re working in the same occupation and a new nomination is approved.
60 days to find employment
If you’re on a 457 visa or 482 visa and lose your job, you have 60 days to find an alternative sponsor.
Condition 8107 applies to 457s and, along with other conditions, it says:
- You cannot cease employment for more than 60 consecutive days if your 457 was granted on or after 19 November 2016
- Work only for your sponsor’s business or an associated entity unless exemptions apply
Condition 8607 applies to 482 temporary skill shortage visas and, along with other conditions, it says:
- You can’t cease your employment for over 60 days
- You must work only for your sponsor or one of their associated entities unless exempt
Taking leave without pay
Leave without pay (LWOP) is an authorised leave of absence from employment. You won’t need to attend work, but you’ll still technically be employed by your employer.
If you’re on a 457 or 482 visa, you’ll need to be careful here for the same reasons we outlined above in relation to working part-time.
Generally, LWOP can only be taken by visa holders for significant personal reasons, maternity/paternity, sickness or if you sustain a workplace injury.
Again, if we receive further clarification on this in light of the Coronavirus pandemic, we’ll provide an update.
Changing to another visa type
You may be eligible for another visa entirely, one with more flexible working conditions.
If you’re in a relationship you could be eligible for a partner visa or a subsequent entrant visa if your partner is a visa holder themselves. If your partner has a pending PR application, you could even be added to that.
Some people who have been stood down are using this time to study. Students can work 40 hours fortnightly and full-time during semester breaks. Lots of course providers, including our own preferred provider, offer online learning solutions so you don’t need to attend face-to-face classes.
This is a great option for anyone with a genuine interest in studying.
Unable to leave
Border restrictions and a lack of commercial flights could make leaving impossible. If you lost your job and you’re in this difficult situation, the most important thing is to try and at least remain lawful.
The Fair Work Ombudsman has compiled a number of fact sheets detailing your workplace rights and entitlements, as well as your rights under the Migration Act 1958, your rights under the Fair Work Act and Australia’s National Employment Standards which apply to most people working in Australia.
This may be a useful resource if you feel your rights and entitlements have been overlooked amid the Covid-19 mayhem.
Contact us for a free assessment and we can look at all of your options.