Hospitality Update: COVID-19, Hospitality & Visas

Hospitality has been one of the industries hit hardest by the COVID-19 pandemic. Many of our clients have been deeply affected. We all hope that it will be over soon but we all need to plan for some level of disruption or change to usual business operations for some time to come.

There are a number of things that hospitality employers need to consider and work into your planning, processes and communications.

1. Renewals of visas and applications for permanent residence will be scrutinised more closely and should be planned for well in advance. Rejections of applications are a real possibility and this will need to be communicated to employees prior to lodgement.
2. Changes to employment arrangements for sponsored visas and other visas with work restrictions could be in breach of immigration laws and sponsorship obligations and/or impact future renewals or permanent residence and so should not be made without careful consideration and advice.
3. High levels of unemployment could lead to policy changes by Government that make it more difficult for hospitality employers to sponsor new employees until the economy is fully recovered.

1.    Renewals and PR applications
Clients are still lodging subclass 482 Temporary Skill Shortage (TSS) applications to ‘renew’ current visa holders whose visas are expiring. Clients are also supporting permanent residence applications where they can.

The Government’s position is that visa holders who have been stood down temporarily can still lodge a TSS application and apply for permanent residence, however, the usual rules continue to apply to those applications.

This means:

• Labour Market Testing (LMT) is still required. Where this is not possible, employers must consider lodging at least a nomination for an employee whose visa will be expiring in coming months (possibly up to a year) to ensure that previous LMT can still be relied on for that nomination. Even so, close scrutiny of the LMT should be expected and employers need to be prepared to demonstrate why no Australia could be found.
• Genuine Position –  In all cases an employer must show that there is a genuine position/need for the sponsored employee.  Obviously, this will take some care in explaining how the position is still needed in a shut down or restricted operations situation. Employers should expect a call or a written request from the Department asking about this and it is an area that could lead to an increase in application rejections and the need for an appeal.
• Genuine Temporary Entrant Requirement – In cases where employees are in two-year occupations and have had a previous TSS visa they will need to prove that they are a ‘Genuine Temporary Entrant’. We expect that this will also be more heavily scrutinised in coming months because of COVID-19.
• Use of 408 visa – Employees in essential services who cannot depart and cannot be sponsored because of the employer’s circumstances, might be able to apply for the Government’s new COVID-19 stream of the subclass 408 temporary visa for a short period, but eligibility will need to be assessed on a case by case basis.

2.    Changes to employment arrangements
Many clients and their employees have asked whether they can make changes to the employment conditions of sponsored employees or those on student or working holiday maker visas.

The Government’s position is that, for the most part, visa conditions and employment arrangements must remain unchanged and that the employee should depart Australia if there is no work in their role or within the terms of their visa. The exceptions to this are:

• Sponsored workers can work part-time or be temporarily stood down without being in breach of their visa conditions or the employer breaching sponsorship obligations but we do not know what impact this could have on future permanent residence applications. While we expect there could be a change in policy, under current rules this period would not be counted towards permanent residence. Salary should remain at the pro-rata rate as specified in the nomination for any hours worked (and also meet any employment law requirements). Sponsored workers cannot change occupation without a new nomination.
• Working holiday visa holders still need to change employer every six months unless they are in essential services such as medical, agriculture, aged care. Food preparation in a venue style setting (packing meals for home delivery etc) is not seen as an essential service.
• Student visa holders employed in hospitality are still limited to 40 hours per fortnight while their course is in session.

3.    What the future might hold 
Messaging from the Government clearly indicates that unemployment rates in Australia will have an impact on future policy direction in relation to TSS visas. While there is no way to know exactly how things will go and no announcements about this have been made, employers might want to factor into their planning the possibility that:

• Travel to Australia might be restricted for quite some time. When it opens employers could well be asked to pay for the costs of any incoming employee needing to isolate (currently this is paid by the Government).
• Certain hospitality occupations might be removed from the TSS list. If this happens, it is most likely to be short-term occupations such as Cook and Café or Restaurant Manager. The industry will need to convince Government of why high unemployment does not necessarily mean less skill shortages in these roles.
• New TSS applications for new hires are likely to be heavily scrutinised and will need additional supporting material and arguments to demonstrate why a sponsored employee is needed.
• Processing may well be much slower, requests for further information more common and rejections and appeal a much more likely possibility than before COVID-19. This will require careful communication and explanation with employees and candidates to set expectations and also guard against candidates quitting their existing jobs on the assumption of a transfer.

We will keep monitoring the situation for all the latest developments and please do not hesitate to contact us if you would like to discuss anything in this update or just to catch up.

We will all get through this together.

DISCLAIMER This information is current as of 14 May 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.