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When you sponsor foreign workers under visa subclasses 457 and 482, you are required to comply with specific obligations. However, the coronavirus (COVID-19) pandemic and rapidly changing economy are forcing employers and businesses to make difficult decisions regarding their workforce structure. If you sponsor foreign workers and are considering:

  • terminating;
  • cutting back hours;
  • Leave Without Pay (LWOP); and/or 
  • redundancies 

in relation to your sponsored workers, you need to be aware of how this impacts your sponsorship obligations now and in the future. This article sets out the eight most frequently asked questions in relation to these visas.

1. Does Working From Home Impact Our 457 and 482 Visa Holders?

If you need to instruct your employees (including visa holders) to work remotely (where possible), this will not breach their work conditions. According to Condition 8107 (applies for 457 visa holders) and Condition 8607 (applies to 482 visa holders), the visa holder must:

  • work only in the nominated occupation; and
  • work only for the sponsoring business or an associated entity of the sponsoring business (unless exempt). 

Please note that you may need to update the Department of Home Affairs about this temporary change at sponsor.notifications@abf.gov.au

2. Employees On 457 or 482 Visas Cannot Enter the Country Due to the Travel Ban. Can They Work Remotely?

There are two categories of 457/482 visa holders in this situation:

  1. employees recently granted a 482 visa who cannot enter Australia to commence work; and
  2. employees who hold a 457/482, have travelled overseas and cannot return due to the travel ban. 

Foreign employees who have recently been granted a 482 visa have 90 days from the date of first arrival in Australia to commence their employment with the sponsoring business. However, if it is not practical for you to wait, you can instruct your foreign employee to work remotely until they can enter the country (due to exceptional circumstances)

You may need to explain this to the Department of Home Affairs at sponsor.notifications@abf.gov.au

In relation to those that have held a 457/482 visa and are unable to return, working remotely is an option. Again, you should update the Department of Home Affairs. 

3. One of Our Employees Was Just Granted a 482/407/400 Visa and is Currently Offshore. Can They Still Come to Australia?

Not while the travel ban is in force. Once it is lifted, foreign employees can enter the country if their visa is still valid. However, if it has expired before the travel ban expires, you will need to sponsor them for a new 482/407/400 visa. 

4. I Need to Cut Back Some of My Sponsored Employees Hours. Can I Do So?

Generally, you need to sponsor a 457/482 visa holder on a full-time basis. Part-time arrangements are acceptable in limited circumstances. Unfortunately, we have not received clarity on this issue from the Department of Home Affairs.

5. I Want My Sponsored Employees to Do Other Work Until the Pandemic Passes. Is This Allowed?

Condition 8107 and 8607 prevents you from changing the position, occupation and duties/tasks of the sponsored workers role, unless a new nomination has been approved. Unfortunately, you cannot instruct your employees to perform duties or tasks outside the scope of their nominated occupation. 

6. Should I Put My Sponsored Employee on Leave Without Pay (LWOP) or Make Them Redundant?

You must proceed with caution in either approach. If there is a seasonal downturn in the industry and you:

  • temporarily lay off; or 
  • make a 457/482 visa holder redundant

they will be regarded as having ceased employment. It could also be considered a potential breach of their relevant work conditions. 

In such circumstances, you would normally be required to advise the Department of Home Affairs (within 28 days) of such changes. The sponsored employee then has 60 days to find a new employer. However, this may also impact your ability to sponsor future 482 visa holders. 

LWOP is acceptable for three months and longer in exceptional circumstances. Seek professional advice on this matter. 

7. We Have a Permanent Residency Nomination Pending. What Do I Do If My Business Is Forced to Close?

You will need to consider if it is commercially viable to nominate the 457/482 visa holder for permanent residency if there is a chance your business will cease to operate in the foreseeable future. This is because you will not be able to declare that the position will be available for at least two years and that you have the financial capacity to meet the sponsored employee’s salary. 

If you decide to close your business, you will need to withdraw the permanent residency application. The sponsored employee will need to identify another nominating entity for their permanent residency application. 

If you are in this situation, seek advice from your lawyer. 

8. Can I Still Sponsor Foreign Workers? 

Yes, the ban does not impact permanent residency application (onshore and offshore) or onshore temporary visa holders transitioning onto a 482 visa. 

However, you may want to pause the process on further 482 visas if the applicant is outside of Australia. 

Key Takeaways

The coronavirus pandemic is having a significant impact on businesses. If you are an employer who is sponsoring 457 and 482 visa holders, you need to check whether you are still able to meet the visa requirements. While some options may be available, such as working remotely in certain circumstances, other changes might be a breach of visa conditions.

The situation is evolving rapidly as further clarification and guidance are received from the Department of Home Affairs. As a result, it is important to check with your lawyer to confirm what you can and cannot do in relation to these visas. If you have any questions about your sponsored visas, LegalVision’s immigration lawyers can assist. Just complete the form on this page or call us on 1300 544 755.

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