Having your visa refused on the first occasion by the Department is not necessarily the…
1. My employer has told me that they can’t afford to keep me on. What can I do?
Your employer must at all times comply with Australian employment law. Recently, on account of the ‘Corona Virus pandemic’ the government also introduced restrictions in non-essential businesses forcing closure and restricting gathering. Sectors such as hospitality, catering, restaurants, airline, retail are heavily affected. On 1 April 2020, The Fair Work Commission issued a statement in relation to the coronavirus pandemic and its proposal of new pandemic leave. The intention is to update 103 awards in relation to entitlement to unpaid pandemic leave and flexibility to take annual leave at half pay.
Under your work visa, you are subjected to strict conditions to only work for your sponsoring employer on a full-time basis. Employment relationships do include leave entitlements. Consequently, if you are still employed but on leave, you won’t be considered in breach of this requirement (with some limitations, see below). What you cannot do is work for another employer or in a different role for which you were nominated for without first asking the department to waive this condition. If you need assistance with a waiver, please call us.
2. Am I eligible for any government subsidies?
The Australian government announced a ‘jobkeeper payment’ of $1500 a fortnight to eligible businesses to help cover some cost for some employees in those businesses. This payment will apply if a business looses 30% of its turnover (or 50% if the annual turnover is over $1billion) on account of the coronavirus pandemic. The employee must have worked in the businesss since at least 1 March 2020 and must have been employed for at least 12 months and be the right age.
The jobkeeper payment DOES NOT apply to temporary work visa holders or other visa holders with the exception of New Zealand Subclass 444 visa holders only. You also won’t be eligible for most social security/Centrelink payments as they generally apply to permanent residents and Australian citizens.
3. Can I work for someone else whilst my current employer is in lock down?
As the holder of a temporary work visa, you are subject to strict conditions (condition 8607 or 8107) where you are only allowed to work for your sponsoring employer in your nominated occupation on a full time basis. If you work for someone else (or another position), you will be in breach of that condition. You want to gain another employment during this period of time, we urge you to contact us to discuss your options.
4. What happens to my visa if I can’t work full-time? My employer wants to put me on only 3 days per week?
Under workplace laws, employers may be able to stand down their employees if one of the reasons apply:
- the business has closed because of an enforceable government direction relating to non-essential services (which means there is no work at all for employees to do even from another location)
- a large proportion of the workforce is in self-quarantine meaning the remaining employees can’t be usefully employed
- there’s a stoppage of work due to lack of supply for which the employer can’t be held responsible.
Furthermore, under the Fair Work Act, employees can be stood down without pay if they can’t be usefully employed because of stoppage of work for any cause for which the employer can’t reasonably be held responsible. Employment contracts and enterprise agreements may have different or additional rules so make sure you check your employment contract. You may also need to seek employment law advice.
If you have been stood down for part of the week or the whole week, under the law you remain employed during the period of the stand down.
Under policy, the department ideally expects full time employment arrangements for the entire period of the TSS visa. If you work part time instead of full time this won’t be considered ceasing employment and therefore you will likely not be in breach of condition 8607/8107 on this basis alone. However, the department expect sponsors to continue to meet their sponsorship obligations where part-time arrangements are put in place. For example, the department may consider it a breach of sponsorship obligations if you earn less than your nominated salary (as per the approved nomination). A visa holder will be in technical breach of condition 8607/8107 where a visa holder has not been in full time employment for a consecutive period of 60/90 days (must have ceased employment in this period of time).
5. Can I accept Leave Without Pay? How long can this arrangement go on for before it will negatively affect my visa.
You may not have much of a choice but to accept leave without pay in some difficult circumstances or for other reasons such as (study or sabbatical leave; sick leave without pay; maternity and/or paternity leave and/or parental/carer/personal leave). This leave won’t be considered in breach of your visa conditions, as you are till employed by your sponsor (although not working or receiving salary).
Under policy, this period should not, however, generally exceed 3 months unless:
- the sponsor is obliged to provide the leave under Australian workplace laws (e.g. in connection with maternity leave); or
- exceptional circumstances apply.
Whether the department will consider COVID19 and the government enforced restrictions on some businesses an exception circumstances is still to be determined.
Where there is extended leave without pay, you may generally be subject to cancellation under clause paragraph 2.43(1)(kc) of the Regulations, if the department is satisfied that you have ceased to have a genuine intention to perform that occupation.
If (as a temporary work visa holder) you are temporarily laid off due to seasonal downturn in the industry in which you are employed , you may be considered to have ceased employment and in breach of condition 8607/8107 if:
- the Department has not been advised accordingly; and
- if more than 60/90 consecutive days has elapsed since lay-off.
If you do have paid leave in between this period, the 60 days won’t be considered consecutive and you may not be considered in breach.
6. Should I go home (leave Australia)?
You are entitled to leave Australia as you wish however given the current travel ban to Australia, unless you are a permanent residents or an Australian citizen, you will find it difficult (if not impossible) to return to Australia in the short term or until the ban is lifted.
Under your work conditions, you can leave your employer (resign or cease working for them completely) and you will have 60 (sometimes 90) days to find a new sponsor. If you do not find a new sponsor to take over your visa, you will be in breach of your visa conditions leading to a discretionary cancellation of your visa (i.e. the Department of Home Affairs will consider whether or not to cancel your visa).
If you were to leave Australia, you may face cancellation of your visa without notice. If the department wishes \ to cancel your visa and you are physically in Australia, by law they are required to give you a notice of intention to cancel and allow you to respond with reasons why your visa should not be cancelled. If your visa were cancelled, you can appeal the decision to the Administrative Appeals Tribunal while remaining in Australia on a Bridging Visa E. If you choose to leave Australia, you won’t have the right to respond to any notice nor appeal a cancellation decision.
If you have any questions please contact our office. We are here to assist during those uncertain times.
Post originally written by Marial Lewis