With the Novel Coronavirus outbreak, countries around the world including Australia are taking steps to minimise the impact of the spread for public health and economic reasons. This is having a dramatic effect on employers and our thoughts are with all of you and your staff.
Below are answers to the most common questions we are receiving:
Should our Australian employees travel out of Australia?
This is a personal and business decision, but the fact that the Department of Foreign Affairs has issued a level 4 travel warning for all countries should show how dangerous the Australian Government believes travel to be. DFAT has also published an urgent message for all Australian citizens to return to Australia as soon as possible if they intend to, suggesting that Australia might close our borders to Australians at any time.
Also, given the travel bans in effect from 9pm AEDT on 20 March 2020, anyone who departs now may not be able to return for some time unless one of the limited exemptions apply.
What will happen if our employees are returning to Australia from overseas?
Only Australian citizens, New Zealand Citizens, Australian permanent residents and the immediate families of these groups are able to enter Australia. Others will be denied boarding a flight and even if they manage to travel, will have their visa cancelled on entry.
If your employee is permitted to enter Australia they will need to self-isolate for 14 days. Each Australian State or Territory will have their own penalty that will be imposed if this self-isolation is not adhered to.
Temporary visa holders who are seeking to enter on the basis of their relationship to an Australian will need to complete this form and submit evidence BEFORE they travel.
What will happen if we have an employee whose visa will expire before they can leave Australia?
These employees will need to apply for another visa. The decision about what visa they can/should apply for will need to be determined on a case by case basis and we can help you and the employee with this decision.
If the employee does not apply for another visa before their current visa expires, then they will become unlawful and subject to possible detention and removal from Australia (once that is possible). Becoming and remaining unlawful, even in this crisis, can have very serious consequences on the employee’s ability to return to Australia in future and on future applications for visas or Australian citizenship.
Can we still sponsor for work visas?
There is nothing to prevent you from sponsoring an employee for a new work visa to come to Australia or to extend a visa if an employee is already in Australia. For employees overseas the advantage of lodging the application is that you may speed up processing once the bans are lifted. For employees in Australia applications will need to be lodged to maintain status or transition to permanent residence, which many employees are seeking to do.
However, there obviously some considerations that need to be taken into account:
- Medical checks and police clearances may be hard or impossible to obtain where these are required.
- The Department of Home Affairs states “As the Department focuses its efforts on managing the impact of COVID-19 on its critical services and employees, other non-critical services may not be delivered within expected timeframes. We apologise for the inconvenience and appreciate your patience during this period.”
- Employees who are overseas will not be able to travel until the current bans are lifted.
Can we reduce the hours of our sponsored workers?
In some circumstances part time work is possible for sponsored workers (e.g. returning from maternity leave of because of health reasons), but under current policy it is not appropriate where it occurs due to a decline in business. This is because the TSS is designed to fill genuine skill shortages in the Australian labour market where appropriately skilled Australians cannot be sourced. However given the pandemic we believe there would be a strong ground for an employer to argue that in these circumstances part time work is acceptable until things settle down and provided it is being applied equally to Australians (ie you are not discriminating against foreign workers). If you are to move a sponsored worker to part time work, you must:
- Ensure the pro-rata hourly rate of the approved nominated salary of the sponsored person does not decrease
- the role and duties must remain consistent with the position approved at nomination
- this arrangement is mutually agreed on by the business and sponsored person. Please maintain written evidence to demonstrate this agreement.
Note too that part time work will affect PR eligibility at a later stage.
What happens if we need to lay off a sponsored worker?
Immigration’s policy in relation to temporary sponsor workers has not been updated on the Coronavirus but we expect the government could decide to apply a flexible approach, but the following is the current policy position.
If the employment is not terminated but the person has been stood down under the Fair Work Act or under a provision in an employment contract the policy recommends advising the Department that of any ‘lay offs’ and explaining that this is temporary and employment is intended to resume. While cancellation is still legally possible, there are obviously powerful factors suggesting that the Department would not move to cancellation in the current circumstances as the legal result of cancellation is detention and removal from Australia, neither of which would seem possible/practical. We can advise the Department on your behalf.
What happens if the sponsored worker takes Leave Without Pay ?
If the sponsored visa holder goes on Leave Without Pay by agreement then this period should not, however, generally exceed 3 months unless:
- the sponsor is obliged to provide the leave under Australian workplace laws; or
- exceptional circumstances apply (which they clearly do).
For any LWOP it is expected that,
- the arrangement is mutually agreed upon; and
- 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)
- Employees who have been stood down or take LWOP may later be delayed in their eligibility for permanent residence, but we don’t expect this to be the most urgent issue for people at the moment.
What happens if the sponsored worker is made redundant?
A sponsored visa holder can cease employment temporarily but this must not exceed 60 consecutive days. A sponsored visa holder is considered to have ceased employment if the employer, or employee, gives written notice that employment will cease, or has ceased, on a particular date and that date has passed.
In this circumstance, the employee would need to find a new sponsor, lodge a different visa application or face the possibility of visa cancellation. Each employee would need separate advice.
Our comments in relation to the reasons why the Department might not move to cancellation in the current crisis applies here as well.
Do we have to pay return travel costs?
Only if the employee (or the Department) asks for it in writing and in a format that complies with the law. Please contact us if you are asked so that we can advise further.
Remember that all of your obligations as a sponsor continue to apply throughout this crisis.
How can Ajuria Lawyers assist further?
We can provide information, help and assistance to you and your employees. Please contact us to find out how.
Please note: This information is current as at 20 March 2020 and may change. It is meant as general information and should not be relied upon as legal advice.
DISCLAIMER This information is current as of 20 March 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.