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Sponsorship obligations (subclass 457/482) and coronavirus

27 March 2020

The coronavirus pandemic has forced many Australian businesses to make sudden changes to the way they operate. If your business emloys subclass 457 or subclass 482 visa holders, it is important to consider how your coronavirus changes might impact your Australian sponsorship obligations.

In this article we consider the potential implications of 6 common changes businesses are making during the coronavirus pandemic:

  1. Employees working remotely (e.g. from home)
  2. Altering employee roles to meet changing demands
  3. Reducing employee salary
  4. Reduced employee hours
  5. Leave without pay
  6. Termination or redundancy

I am an employer with sponsored employees. Remind me of my sponsorship obligations?

First, if you are unsure what your sponsorship obligations are, here is a list of them.

My employees now work from home. Does this affect any of my business’ sponsorship obligations?

This is one of the most common changes businesses are making in response to the coronavirus pandemic. Your sponsored employees are allowed to work from home. This does not breach their visa conditions or your sponsorship obligations provided they continue to work in their nominated occupation.

If you make this change we recommend you update the Department of Home Affairs of this temporary change caused by coronavirus by email: [email protected].

I need to alter the duties of my sponsored employee. Can I do this?

Your sponsored employee must comply with their visa conditions which prevents you from changing their nominated occupation and their main duties. Some minor amendments may be appropriate but we recommend you obtain migration advice before making any of these changes to duties.

If your business needs to alter a sponsored employee’s main duties significantly, a new nomination will need to be approved first by the Department of Home Affairs.

I need to reduce the salary of my sponsored employee. Can I do this?

Generally you must pay your sponsored employee the amount listed in the approved nomination. An employer also has a requirement to ensure they are not paying their employee less favourable terms and conditions than they would an Australian employee.

I need to reduce the hours of my sponsored employee. Can I do this?

Most sponsored employees must work full-time, however, there are some exceptions where part-time may be considered reasonable. During the coronavirus pandemic it may be possible in some circumstances to reduce the hours of a sponsored employee and still meet the visa conditions and sponsorship obligations.

Currently, part-time arrangements can be acceptable for:

  • Maternity leave, where the sponsored employee is gradually increasing back to full-time
  • Where the sponsored employee is on partial sick leave or has a work-based injury
  • Where the sponsored employee has significant personal reasons

However, there are additional criteria that must currently apply for this reduction to part-time to be allowed including how it affects the salary.

This is a changing situation and we recommend you contact our office for a free 10 minute phone or video call to discuss the latest advice on this.

I need to ask my sponsored employee to take leave without pay. Can I do this?

There are some circumstances where leave without pay is allowed. It is generally only allowed up to three months but in approved cases can be up to 12 months, depending on the circumstances.

It is generally only acceptable if it is for maternity/paternity leave, sick leave, a work based injury, or significant personal reasons and there are further requirements that need to be met for this to be acceptable. You can contact our office for a free 10 minute phone or video call to discuss your particular arrangement.

I need to terminate or make redundant one my sponsored employee. Can I do this?

It is important to note that if you:

  • Terminate a sponsored employee’s employment (even with an informal view that you will re-hire when the coronavirus pandemic is over)
  • Make a sponsored employee redundant

The sponsored employee will be seen to have ceased their sponsored employment. As the employer, you must notify the Department of Home Affairs of this change within 28 days. The sponsored employee then has 60 days (for some older subclass 457 visas the employee may have 90 days) to find a new sponsor (employer) and position. If the sponsored employee cannot find a new sponsor they must leave Australia. With the current travel ban, they would need to identify an alternative visa option to remain lawful.

Again, given the situation is evolving so rapidly we recommend you book a free 10 minute phone or video call with a migration lawyer to discuss your situation as soon as possible in case there is an alternative solution available, including using leave without pay as an option.

We note the above is information only and is not legal advice. It is current as at the time of publishing and we continue to publish new information as the coronavirus pandemic evolves. We recommend you speak to one of our migration lawyers for a free 10 minute phone or video call to discuss your business situation.

An experienced migration lawyer can make all the difference when you need.