The below Q&As have been prepared to help employers navigate immigration law issues and stay compliant amid the complex and dynamic challenges posed by COVID-19.
1. An employee from an overseas office who is currently on a visitor visa is unable to return to their home country due to the travel ban and border closure.
Can the employee extend the 3 month stay period of the current visa?
There is no provision available for an extension of the existing visa for the period of the travel ban and border closure.
The employee will need to apply for a new visa in order to stay beyond the current 3 month stay period permitted on their current visitor visa.
Can the employee work remotely for their overseas office (i.e., the direct employer overseas)?
The employee may carry out their usual work remotely for their overseas employer provided that the employee is not working out of the Australian office, and the work the employee undertakes does not have any adverse impact on the employment and training opportunities of the local Australians.
Can the employee work for an Australian business?
The business visitor visa does not permit work which is defined as any activity which ordinarily attracts remuneration in Australia.
The employee will have to apply for a visa which permits work in Australia.
2. An employee is on a temporary visa which is due to expire soon, and intends to apply for a tourist visa until the employee is able to travel back to their home country. Can the employee work on a tourist visa?
The tourist visa does not allow work because it is only available for the holiday and leisure purposes.
That being said, if the employee has exceptional personal circumstances with compelling personal reasons (e.g., the employee is in financial distress and is unable to return to their home country amid COV-19), they may make an application for a tourist visa with permission to work.
The Department generally considers tourist visa applications with the request for work permission under exceptional and limited and circumstances only. Therefore, tourist visa holders must not undertake any work unless a tourist visa with permission to work has been granted by the Department.
3. An employee’s visa has a “No Further Stay” condition. What does this mean? Can the employee apply for a new visa in Australia?
If the employee’s current visa has a “No Further Stay” condition, the employee will not be able to apply for a new visa while they are in Australia.
The employee will need to make a waiver request to the Department of Home Affairs with appropriate documents in support of their claim.
The Department will then need to waive the No Further Stay condition before the employee can apply for a further substantive visa.
4. Is an employee on a temporary work visa (457/482) permitted to work from home?
An employee on a temporary work visa is able to work from home provided it is possible for them to carry out their standard day to day duties remotely. For example, chefs or hairdressers may not be able to perform their standard day to day duties remotely, in which case, working from home is not a feasible option for them.
5. An employee who is on a temporary work visa (457 / 482 visa) may be terminated on the grounds of redundancy made redundant due to the downturn of the business.
What are the employee’s immigration implications and avenues?
Within 60 calendar days from the end date of the temporary work visa holder’s employment, they will have to:
- find a new employer who can then sponsor and employ them;
- apply for another visa they can apply in Australia; or
- leave Australia.
If they fail to take any one of the actions above within the 60 day period, they will be in breach of their 457/482 visa condition, and their visa may be cancelled by the Department of Home Affairs and/or there may be an impact on their future Australian visa applications.
What are the immigration obligations on the business?
There is an obligation on the business to notify the Department of Home Affairs within 28 calendar days from the last date of the employment of the temporary work visa holder.
If the business fails to notify the Department within the prescribed time frame, the business will be in breach of one of the sponsorship obligations, and there may be an adverse impact on the sponsorship status of the business.
If the temporary work visa holder decides to depart Australia permanently and return to their home country because they are unable to stay on their temporary work visa, the visa holders may make a written request to the business to pay for their travel costs to depart Australia.
If the business receives such written request, there is an obligation on the business to fulfil the request.
6. Can an employee on a temporary work visa (457/482) work part-time or take a pay cut and maintain their full-time employment?
It is a requirement of the temporary work visa (457/482) that the visa holders must be employed full-time unless part-time employment is allowed under the relevant workplace related laws (e.g., sick leave on a work based injury, significant personal reasons, graduating from maternity leave etc).
The business is also required to pay the temporary work visa holders at least the salary stipulated in the Nomination approval. There is also an ongoing sponsorship obligation on the business to pay the temporary work visa holders at the market salary rate. Therefore, any reduction of the full-time hours will result in the decrease in the employee’s salary, and the business will be in breach of one of the sponsorship obligations.
If the proposed lower salary will fall below the salary stipulated in the employee’s Nomination approval, the business is required to submit a new Nomination application to demonstrate the proposed salary still meets the market salary rate of the role. That being said, the Department of Home Affairs may draw negative inferences if the proposed lower salary is primarily due to the business shut down or decline amid COVID-19.
7. What are the immigration implications on the business and the employees on a temporary work visa (457/482 visa) if they are stood down without pay or take paid (or unpaid) leave? Can they take up another position on a temporary basis?
The temporary work visa (457/482) holders must not be out of employment for more than 60 consecutive days.
Temporary stand down without pay does not mean the end of employment, and there may not be an immediate impact on the business and the temporary work visa holders. However, the temporary work visa holders may be considered to have ceased employment if the stand down is for a prolonged period of time (i.e., over 60 days) in light of the condition that they cannot be out of employment for more than 60 consecutive days.
Under the current immigration policy, any unpaid leave the temporary visa holders take generally should not exceed 3 months unless a longer period of unpaid leave is permitted under other laws.
The 457/482 visa holders will not be able to take up other employment during the period of stand down as the 457/482 visa holders can only work in their nominated position, and for their sponsor and/or the sponsor’s associated/related entity/entities.
8. An employee’s temporary work visa (457/482) is due to expire, and it is unlikely the business will extend their work visa sponsorship beyond the last day of their current work visa.
Is there any obligation on the business to extend the visa sponsorship?
There is no immigration law obligation on the business to extend the work visa sponsorship, however, the termination of employment must be in accordance with relevant workplace laws and employment contract, and taking the visa expiry date into account.
Given the employee will need to make alternative arrangements to either stay in or leave Australia before their visa expires, the business is recommended to give the employee sufficient time, well ahead of the visa expiry date.
What are the immigration obligations on the business?
The obligations outlined under Question 5 are applicable to the business.
9. An employee whose visa has expired because they could not leave Australia due to the cancelled flights and/or travel restrictions, and it is uncertain when the employee would be able to travel.
What are the employee’s immigration implications and avenues?
The employee is now an unlawful non-citizen, and may even be detained in accordance with Australian immigration law.
It is strongly recommended that the employee applies for a Bridging Visa E as soon as possible in order to remain in Australia lawfully. Departing Australia unlawfully may result in a ban on re-entry for three years, and/or may have an impact on their future Australian visa applications.
It is important that the employee continues to maintain their legal immigration status in Australia by holding an appropriate visa at all times.
What are the immigration obligations on the business?
The employee has become an unlawful non-citizen on the day their visa expired and therefore they do not have any work rights in Australia.
The business must stand down the employee immediately. If the business continues to allow an unlawful non-citizen to work whether knowingly or unknowingly, a range of civil and criminal penalties may be imposed on the business and any individual involved.
10. Can an employee on a Student visa work more than permitted hours?
The temporary relaxation of the work limitation imposed on the student visa holders is limited to the businesses operating supermarkets (i.e., the supply of groceries is the primary business activity), and the businesses in aged care. If the business is operating in either of these two industries, they must be registered with the Department of Home Affairs to allow their employees on a student visa holder to work more than the stipulated hours under their visa. For the current list of the registered businesses, click here.
