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What if I need to stand down or terminate my sponsored employee?

The Prime Minister announced a shutdown of places of public gatherings from 12:00 pm (midday) on Monday 23 March 2020. This includes hotels, bars, nightclubs, casinos, restaurants, and cafes.

A further announcement was made by the Prime Minister that a shutdown of beauticians, massage therapists and a restriction to hairdressers effective as of midnight from Wednesday 25 March 2020.

What are your obligations to workers from overseas if you are standing down sta­ff?

We understand that you may be required to stand down some staff.

We recommend that you take advice from your Industry Association such as the AHA and TAA or Restaurant & Caterers in determining the legal requirements to take this action from a Fair Work perspective. These staff may be crucial to your operations when the restrictions end as they will have a loyalty to you and an incentive for their future stay in Australia.

For all staff, regardless of visa status, you are required to abide by Australian employment law when reducing hours or terminating employees.

Some key points to note are:

  1. For foreign national employees that hold Australian permanent residency, you do not have sponsor obligations.
  2. For temporary visa holders, you do not have sponsor obligations. These visas include:
  1. If you have sponsored overseas workers under the temporary working visa programs, you do have sponsor obligations. These include:

Covid-19 and Overseas Workers Providing Leave Without Pay

Providing leave without pay is a good option to ensure the employee remains sponsored by your organisation.

There are two government policy guidelines relating to LWOP – Leave Without Pay. However, as we’re currently in unprecedented times these rules will no doubt be relaxed.

The first one is the policy for condition 8107 (previous or current 457 visa holders), which indicates the LWOP is generally accepted if less than 12 months.

The second one is the policy for condition 8607 (current 482 visa holders), which indicates the LWOP is generally accepted for less than 3 months or longer under exceptional circumstances.

I would suggest that the current circumstances are classified as ‘exceptional’ and therefore a greater period of three months for 482 visa holders will be considered until the enforced lockdown is over.

For leave without pay, the expectations are:

Employees may also be permitted to access their Superannuation under the guidelines introduced by the Government in the last few days. It is our understanding the Government is setting up an online application for this and more details will be released shortly.

What if I need to terminate my sponsored employee?

If this is your only option, you must do so in accordance with Australian employment law and notify the Department within 28 days. Sponsored workers can request you pay repatriation costs to their country of residence but must make this request in writing.

Clearly, current travel bans may make repatriation difficult at this time.

Under your sponsor obligations, you must action this request within 30 days of receipt and retain all correspondence.

Special Welfare Payments

It is our understanding the government is considering special welfare payments and visa extensions will be offered to non-residents stranded in Australia who lose their jobs and are unable to return home now on temporary visas without access to government services.

While Australian workers will come first, the government will seek to place highly skilled temporary migrants who stand to lose their jobs.

For further information, please access https://www.servicesaustralia.gov.au/individuals/services/centrelink/special-benefit

 

Published Wed 25 March 2020. Tags: ,

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