I am a Temporary Skill Shortage visa holder – what should I do if I have be stood down or my hours are reduced?
Temporary Skill Shortage visa holders who have been stood down, but not laid off, will maintain their visa validity and businesses will have the opportunity to extend their visa as per normal arrangements.
Businesses will also be able to reduce the hours of the visa holder without the person being in breach of their visa conditions or the business being in breach of their employer obligations.
Those visa holders who have been laid off due to coronavirus should leave the country in line with existing visa conditions if they are unable to secure a new sponsor.
However, should a 4-year TSS 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.
TSS visa and 457 visa holders- Working part-time for your employer (sponsor)
Both the TSS and 457 are designed to enable employers to address labour shortages by bringing in full time skilled workers where employers can’t source an appropriately skilled Australian worker. If your hours were reduced to part time, your employer may not meet their sponsorship obligations as you would be earning less than the nominated salary. There are provisions in policy where the employer would still meet their obligations for periods of part-time work, that are: maternity leave, sick leave or a work-based injury or significant personal reasons.
And the below following four policy criteria are met:
- the pro-rata hourly rate of the approved nominated salary of the sponsored person does not decrease
- the role and duties conducted by the sponsored person remain consistent with the position approved at nomination
- the nominee is not employed under a Labour Agreement which was restricted to full-time arrangements only
- this arrangement is mutually agreed upon by the sponsor and sponsored person. Sponsors should maintain written evidence to demonstrate this agreement, and document the reason for the change.
TSS visa and leave without pay (LWOP):
Many Australian employers provide conditions of employment allowing their employees to access LWOP while continuing to remain in the employ of that employer. Given the TSS and subclass 457 visas are to fill specific skill shortages in the Australian market, and given full-time position requirements at nomination stage and ongoing market salary rate requirements, extended LWOP is not considered compatible with the purpose of these visas (however, as mentioned above this does not apply during the COVID-19 crisis).
As with part-time work, LWOP will generally not meet regulation 2.79 due to earnings being less favourable/less than what the earnings were when the nomination was approved.
LWOP is generally only acceptable if it is for maternity/paternity leave, sick leave, a work based injury, or significant personal reasons.
On 4 April 2020, Acting Immigration Minister Alan Tudge announced that the department will take a flexible approach towards TSS/457 visa holders whose hours have been reduced due to the COVID-19 crisis therefore the below 3 month rule would not apply.
LWOP should generally not exceed three months, unless the sponsor is obliged to provide the leave under Australian workplace laws.
For any LWOP, it is expected that:
- the arrangement is mutually agreed upon by the sponsor and sponsored person.
- there is a formal application for leave without pay that has been formally approved by the employer (including leave applications that are processed and approved electronically).
COVID-19 Travel Restrictions and working remotely for TSS visa holders:
If you are a TSS 482 visa holder and cannot return to Australia due to the travel restrictions due to COVID-19 and you are not exempt you can still work from overseas on your 457/482 visa if you cannot return to Australia provided that you are able to perform the role remotely, have a written agreement in place and keep records.
Changing roles on TSS visa
Migration regulations requires that a sponsor must ensure that a primary sponsored person only works in the occupation approved at nomination.
The primary sponsored person’s current duties must clearly correlate with the duties listed under the relevant occupation code for the nominated occupation under the Australian and New Zealand Standard Classification of Occupations (ANZSCO).
A new nomination must be approved if a primary sponsored person intends to work in a different occupation from that approved at nomination
Termination of employment of TSS visa holder
Sponsors need to comply with both the Migration Act 1958 and Fair Work Act 2009 legislation, and any other relevant federal or state legislation at all times.
If you have been made redundant, as a TSS visa holder the period you cease employment must not exceed 60 consecutive days. The purpose of this is to give a TSS visa holder, who ceases employment with their current sponsor time in which to find a new approved sponsor, without concern their visa may be cancelled.
TSS visa holders who cease employment for more than 60 consecutive days will be in breach of condition 8607 and their visa may be subject to cancellation under s116 of the Act.
A sponsor is taken to have paid reasonable and necessary costs under regulation 2.80 if:
- one-way travel costs from the sponsored person’s usual place of residence in Australia to the place of departure from Australia are paid
- one-way travel costs for all sponsored persons from Australia to the country (for which the person holds a passport), as specified in the written request, are paid
- the travel costs are paid within 30 days of receiving the written request for costs
- the travel costs equate to economy class air travel.
Costs to return home for TSS visa holders
Under policy, the sponsor should pay for return travel costs for all sponsored persons prior to the purchase of an airline ticket and any mandatory costs associated with return travel, for example, transit visa costs and airport taxes.
The sponsor must be able to demonstrate that the travel costs paid equate to economy class air travel from Australia to the country specified in the written request.
Under policy, the sponsor is not required to:
- book airline tickets for the sponsored persons
- pay costs associated with relocation of personal effects (beyond any included airline baggage allowance)
- pays costs for excess luggage
- pay for rental property expenses (for example, the cost of breaking a lease)
- provide for personal choices, for example, particular stopovers on international flights
- provide access to stopover hotels during international flights (if that stopover flight was solely due to the expressed personal preference of the sponsored person)
- pay for the cost of obtaining a travel document (for example, passport).
Regulation 2.8 also applies if the sponsored person makes a valid request to the sponsor to reimburse return travel costs they have paid and their sponsored visa is still in effect. Sponsors are only required to reimburse ‘reasonable and necessary’ costs and are not obligated to reimburse the full amount requested.
Regulation 2.82 requires that a record is kept of how a sponsor has satisfied the obligation to pay return travel costs including the written request to pay these costs and details of the travel costs paid. See Obligation to keep records. Records of travel costs paid must be maintained in a manner that is capable of being verified by an independent person, for example, electronic funds transfer.
Disclaimer: This information is current at time of publication and may change anytime. It is meant as general information and should not be relied upon as legal advice. Please book a consultation to assess your situation.
For COVID-19 visa related travel questions / 408 visa eligibility you can book a time here:
https://visaenvoy.as.me/covid19 (25 min)
If you would like a comprehensive consultation which includes assessing you for other temporary and permanent visa options (Skilled visas, Employer Sponsored, Partner, etc.) as well, we recommend our standard 45 minute to 1 hour consultation which can be scheduled here:
https://visaenvoy.as.me/video (45 min- $150)