COVID-19 – Temporary Visa Work Arrangements

Backpackers in primary industryFollowing a great deal of speculation, the Minister for Immigration has finally announced the Australian Government’s stance on temporary visa holders in Australia during the COVID-19 crisis.


The primary message is that Government support and funding is focused on Australian Citizens and Permanent Residents, and that temporary visa holders are expected to be able to support themselves or to depart Australia in order to access support in their home countries.

We explore some of the major announcements below:

Visitors and Tourists

Immigration encourages all international visitors to return to their home country as soon as possible.

There were no work or financial support arrangements announced for these visa holders, as it is expected that visitors and tourists should be able to support themselves during their stay in Australia.

International Students

Students unable to meet some of their visa conditions due to the Coronavirus (such as not being able to attend classes) are unlikely to have their visa cancelled.

The work limitations of 40 hours per fortnight still apply, however:

  • Students working in Aged Care and Nursing can work additional hours to support these sectors
  • Students who were employed at supermarkets as of 1 March are able to work additional hours until 1 May 2020
  • Students can work unlimited hours while their course is ‘out of session’ (i.e. during scheduled course breaks or if their course has been completed as scheduled) or if the course has been deferred

It is expected that International Students would have access to family funding, their own savings, and income from their ability to work part-time in order to financially support themselves in Australia.

Student visa holders who have been in Australia for more than 12 months who find themselves in financial hardship will be able to access their superannuation. Please contact your Superannuation Fund provider for more information.

New Zealand Citizens

‘Eligible’ New Zealand Citizens (those who were living in Australia as of 26 February 2001) have the same entitlements as Australian permanent residents. Welfare and JobKeeper payments will be available.

Other New Zealand Citizens on Subclass 444 visas will have access to JobKeeper payments for limited periods. They are encouraged to return to New Zealand if they are unable to support themselves financially during this period.

Working Holiday Makers

Subclass 417 and 462 visa holders currently employed in critical sectors will be able to work beyond their 6-month limitation without needing to make a formal request for permission.

Critical sectors include:

  • Health care, Aged care, and Disability care
  • Agriculture (plant and animal cultivation)
  • Food processing (including fruit-picking)
  • Childcare

Existing 417 or 462 visa holders working in critical sectors who are unable to meet the 3 or 6 months specified work for a second or third year working holiday maker, and who are not able to return to their home country can apply for a special Subclass 408 Temporary Activity visa to allow them to stay and work temporarily.

Working holiday makers who are not working in critical sectors and who cannot depart should look at alternative visa options to remain in Australia. Please contact Acacia for further advice on your situation.

Again, Immigration recommends that working holiday makers make arrangements to depart Australia if they do not believe they will be able to support themselves during their stay here.


Those unable to find help and need Food or Financial Assistance.

National Coronavirus Line 1800 020 080
or
Ring Red Cross 1800 733 276


Food Relief

Food Relief aims to increase emergency relief organisations’ access to a cost-effective supply of food items.

Organisations are funded to ensure food items are available for service providers to deliver to individuals and families in need across Australia by:

  • receiving donated foods from farmers/manufacturers/retailers/other food redistribution services, and redistributing these foods to community organisations or other distribution centres where the food is needed
  • sourcing and transporting essential foods on a basis where food donations are insufficient
  • leading the development of local partnerships amongst food redistribution suppliers to improve access and distribution, especially in rural and remote communities.

Food Relief can be sourced locally at AskIzzy – select Food and enter your postcode.

Food Relief is also available at Foodbank Victoria

Food Relief is also available at Second Bite


Temporary Work Visas (457 or 482)

Temporary Work Visas and the Coronavirus – FAQ

Many businesses across Australia have been forced to close their doors or limit their services due to COVID-19. People with Subclass 457 and 482 visa will be wondering what this means for their visa.

Here are some Frequently Asked Questions – resourced from the Department of Home Affairs:

Reduction in work

Q. Can I reduce my hours or move to part-time work?

The Minister for Immigration announced on 4 April that subclass 457 and 482 visa holders will be able to reduce their working hours without being in breach of their visa conditions.

However, the below following four policy criteria should continue to be met:

  • the pro-rata hourly rate of your approved salary (as per the nomination) does not decrease
  • the role and duties performed remain consistent with your nominated occupation
  • you are not employed under a Labour Agreement
  • there is a written agreement in place between you and your sponsor. Your sponsor must maintain a copy of the agreement, and document the reason for the change.

Q. Can my employer reduce my wages?

It is only possible to reduce wages by lodging a new nomination with a lower wage, provided the wage is still market rate and above the Temporary Skilled Migration Income Threshold (TSMIT), currently AU$53,900. You would need to agree to the revised wage by signing a new employment contract, and the new application would incur an additional Skilling Australians Fund levy payment on behalf of your sponsor.

Q. Can I go on Leave Without Pay (LWOP)?

482 or 457 visa holders are covered by the National Employment Standards, making them eligible for unpaid leave (e.g. study or sabbatical leave, recreational or holiday leave without pay, sick leave without pay, parental/carer/personal leave, maternity and/or paternity leave). You would not be considered to be in breach of your visa conditions solely on the basis of this unpaid leave. This is because you are considered to continue to be employed by your sponsor (despite not working or receiving a salary).

Immigration has confirmed that 457 and 482 visa holders who have been ‘stood down but not laid off’ will be able to maintain their visa validity and to apply for an extension of the visa through the usual application process.

For any LWOP it is expected that:

  • both you and your sponsor have agreed that LWOP will be taken; and
  • there is a formal application for leave without pay that has been formally approved by your sponsor (including leave applications that are processed and approved electronically).

Overseas Workers / Travel

Q. Can I return to Australia on my 457/482 visa if I am currently offshore during the Covid-19 pandemic?

There is a process for applying for an exemption to the travel ban which may be applicable in some cases. We do not have any further information about what may constitute an exemption, other than the limited examples given on the Department of Immigration’s website:

  • care for close relatives who are seriously ill
  • attend the funeral of a close relative

There is no guarantee of success, and thoughts are that the restriction will only be lifted in genuinely exceptional, compelling and compassionate circumstances. An exemption must be obtained before you attempt to travel, or your visa will be cancelled.

Where an exemption is granted, you would be subject to quarantine for a 14-day period upon arrival in Australia.

Q. Can I work from overseas on my 457/482 visa if I cannot return to Australia?

If it is possible for you to perform your work remotely, then you can still work from overseas. A written agreement between you and sponsor should be put in place for record-keeping and sponsorship obligation purposes.

It should be noted that work performed overseas may not be included as time spent working for your sponsoring employer in Australia for the purpose of a permanent visa (such as a Subclass 186 in the Temporary Residence Transitional stream). Immigration will assess this on a case by case basis.

Other Work

Q. Can my staff member do other work within the business?

Under conditions 8107 and 8607 of the 457 and 482 visas respectively, holders are limited to working only in their nominated occupation. In addition, sponsors are obliged to ensure that the 457/482 visa holder works in the nominated occupation.

If you are found working in a different occupation, your visa may be cancelled and your sponsor may become subject to sanctions affecting their ability to sponsor workers in future.

In order to change occupations, a 457 visa holder would need to have an approved nomination in the new occupation before commencing in the role. A 482 visa holder would need an approved nomination and approved visa in the new occupation.

Under policy, the work condition would not be considered to have been breached if the change of duties is only temporary and will not exceed 60 consecutive days. However, if your duties are revised for a period of more than 60 days, or if they are regularly changed, you must ensure a new nomination (457) or new nomination and visa (482) are lodged.

Q. Can I work somewhere else and go back to my original sponsor when business picks up?

Again, conditions 8107 and 8607 of the 457 and 482 visas respectively limit the holder to only working for their sponsoring employer (or associated entity). In this situation, a new employer would need to sponsor you and have this approved before you could commence work there. Another application would then need to be lodged to return to the original sponsor.

We are seeking further information from Immigration on the possible relaxation of these conditions to allow visa holders to work in areas of need during this crisis (for example; providing services to the health sector).

Q. Can I receive Centrelink payments or access my superannuation early?

Subclass 457 and 482 visa holders will be able to access up to AU$10,000 of their superannuation this financial year. An application should be made directly with your superannuation fund provider.

Temporary visa holders who have departed Australia and wish to access their superannuation can request voluntary cancellation of their visa and a ‘Departing Australia Superannuation Payment’. Further information is available here .

There have not been any announcements regarding social security payments for 457 or 482 visa holders.

Termination

Q. Can I be temporarily laid off, e.g. due to a business shutdown or reduced trading?

See ‘Leave Without Pay’ above.

Q. Can my sponsor terminate my employment? Can I leave Australia and travel home?

From an Immigration perspective, Standard Business Sponsors are required to continue to comply with their sponsorship obligations, as well as following the standard Fair Work rules during this period.

If your employment was terminated, you would generally have 60 days to depart Australia, or find a new sponsor, or lodge a different type of visa to stay here before Immigration would consider you to be in breach of the work conditions and look to cancel your 457/482 visa.

Immigration have taken the view that visa holders who have been laid off due to coronavirus should leave Australia if they are unable to secure a new sponsor. However, there is some good news in that the Minister has also announced: “should a 4-year visa holder be re-employed after the coronavirus pandemic, their time already spent in Australia will count towards their permanent residency skilled work experience requirements”.

Based on this announcement, our interpretation is that if:

  • You hold a 457 or 482 in a MLTSSL or ROL occupation (i.e. a ‘4-year visa’); and
  • Your employment is terminated and you leave Australia; and
  • You are re-employed by your original sponsor after the pandemic period
  • Then you could count the time you had already spent working in Australia with the original sponsor towards the work requirement for a permanent employer-sponsored visa.

We suggest contacting an Immigration Consultant to advise you on your options moving forward.

If your employment is terminated and you wish to depart Australia, your sponsor is obligated to pay reasonable travel costs for you and any family members dependent on your visa.

The department considers the following costs to be reasonable and necessary:

  • travel from your usual place of residence in Australia to your departure point from Australia (i.e. from home to the airport)
  • travel from Australia to the country for which you hold a passport and intend to travel to
  • economy class air travel or reasonable equivalent

‘Reasonable travel costs’ does not include costs associated with relocation of your personal effects (beyond any included airline baggage allowance), excess luggage, rental property expenses (for example, the cost of breaking a lease), personal choices (such as particular stopovers on international flights or preferred hotels), or
the cost of obtaining a travel document (for example, passport).

You must make a formal request in writing confirming the full names of the travellers, your country/ies of passport, and your destination. Your sponsor must make payment within 30 days of receiving the request.

 

 

Translate »