11th December 2008

457 holders lose job and visa
DIAC Xmas arraangements
457 Integrity Review
Skilled Migration News
Business Skills News
Policy Corner - 8107 Unpaid leave / pregnancy

As 2008 is rapidly drawing to a close, the global financial crisis is the biggest challenge we have had to face since the Asian meltdown a decade ago.Many 457 visa holders have becomecasualties as they are being made redundant in increasing numbers.Sadly, when 457 holders lose their jobs, they also lose the right to remain in Australia unless they can find new sponsors. This is particularly sad for those who have lived in Australia for many years.

Under immigration law, a sponsor must notify the Dept. of Immigration (DIAC) of termination of employment within five working days.A 457 visa holder generally has 28 days to make arrangements to depart the country or apply for another type of substantive visa, e.g. obtain a new 457 visa via a new sponsor.A visa holder must leave Australia prior to their visa being cancelled to avoid becoming unlawful. DIAC must issue a Notice of Intention to Cancel prior to visa cancellation. In this regard, the best strategy is for the visa holder to maintain close contact with the DIAC office by providing them details of the change in circumstances. The DIAC tends to be flexible if they know that the holder is looking for work, or being offered new employment. The onus remains, however,with the visa holder to ensure he or she does not become unlawful as a result of visa cancellation.Options for people in these circumstances are therefore limited.

It is important for sponsors to be aware that certain sponsorship obligations remain alive (despite notification to DIAC) until the terminated 457 holders have left Australia or obtained a new visa.These obligations include public medical and hospital expenses should these be incurred even after the notification of the termination, and detention/removal costs should these people become unlawful as a result of their visas being cancelled!!

One of the ways to help these holders and for the employers to fully discharge all of their obligations is to plan in advance.e.g. consider sponsoring these employees for permanent residency as soon as practicable.Once an employee has become a permanent resident, the employer is totallyrelieved of the sponsor's onerous obligations.Even if these employees were to lose their jobs later on, they can at least continue to live in Australia.It is always easier looking for employment being a permanent resident as employers tend to be reluctant to become a sponsor.

These are indeed stressful times for both the employers and terminating visa holders.Employers have the moral, if not legal, responsibility to assist these people the best way they can to avoid not only immigration, but the related employment and contract laws issues.Our office has been very busy giving exit advice to both the sponsors and visa holders.An understanding of their rights and responsibilities will go a long way in reducing these risks.

Abacus Visa provides a comprehensive service in relation to the the 457 visa - both for the employers and the visa holders.Please contact our office should you require information or advice regarding exit strategy for 457 visa holders.

The management and staff of Abacus Visa thank all our clients, friends and associates for your continued support and wish you all a Merry Christmas and a Happy New Year.

(Abacus Visa will be closed for Christmas and New Year from Tuesday, 23 December 2008 and returning to office on Monday, 5 January 2009.Skeleton staff will be on duty for urgent matters during this period.)

DIAC – Xmasholiday arrangements

DIAC staffing level will be at an all time low over the holiday period due to staff taking leave and the general rush of holiday visas. DIAC is expected to be extremely busy.Any applications lodged from now on are not likely to be finalised prior to Christmas.

Tip: Lodge your applications as soon as is practicable, and make sure a complete application is lodged (with full supporting documentation).

457 Integrity Review - Final Report

The Review into the integrity of the 457 visa program was conducted by Barbara Deegan, an industrial relations expert, following concerns raised about the 457 program.The final report was released by DIAC on 14/11/2008. The report has been referred to the Skilled Migration Consultative Panel for consideration.Over 60 recommendations were made and some of these include:

• replace the Minimum Salary Level (MSL) with market rates of pay
• develop an accreditation system to fast-track low-risk applications
• develop new lists of skilled occupations
• limit visa holders to a maximum of 8 years and provide a pathway to permanent residency for those with the required English skills
• Enhanced scrutiny of migration agents

In addition, the Government has already commenced the process of change with the Migration Legislation Amendment (Worker Protection) Bill 2008 which will amend the Migration Act 1958.These changes will involve changes to sponsorship obligations, new penalties and sanctions, workplace inspectors and information sharing.

Integrity Review Final Report (402KB PDF file)

A copy of the Bill and an Explanatory Memorandum can be found at:

Migration Legislation Amendment (Worker Protection) Bill 2008

Tip: Any new penalties and sanctions will have significant impact on employers.This highlights the importance of a properly managed expatriate 457 visa program.

GENERAL SKILLED MIGRATION(GSM) NEWS

Changes to 485 - English requirement

We discussed in our September Alert that English test results must be lodged at time of application.A number of students have been caught.We therefore encourage all Onshore Overseas students to undertake their IELTS well in advance of their applications.English tests results are also required for subclass 485, 885 and 886 visas.

DIAC Advice on $100K Designated Investment

Prior to 1/9/07, GSM applicants could claim 5 bonus points if they were willing to invest $100K in a state security bond for 12 months.These applications have been in limbo since thefour state governments withdrew from the capital investment scheme.DIAC has recently placed the following information on their website.

"Closure of Capital Investment Scheme for pre-1 September GSM visa applications - 27 November 2008

The department wishes to clarify the situation regarding lodging a deposit as an individual investor to meet the requirements for a capital investment. The department is not aware of any investment products currently offered by the four State and Territory Government Authorities listed in the Instrument which meet all the requirements as listed in Regulation 2.26C.

Some States may consider sponsoring offshore applicants whose occupations are not on their State lists.

Information on options which have been identified can be found at the following link:

Frequently Asked Questions - Capital Investment Scheme

BUSINESS SKILLS NEWS

New Processing Locations for Onshore Business Skills Applications

From 20/10/008 all new onshore business skills applications from the ACT, Northern Territory, South Australia, Tasmania and WA are to be processed in the Adelaide State Office.This applies to subclass 845, 846, 890, 892, 893 and 457 IE FAO visas.

From 01/01/2009, onshore business skills applications from NSW, Queensland and Victoria will be processed in Adelaide.

Visa applications can still be lodged at a DIAC office or directly with the Adelaide State office.If the application is not lodged at the Adelaide office, the application will be transferred to Adelaide for processing.

POLICY AND CHAT CORNER

Condition 8107:Ceasing Employment – unpaid leave / pregnancy/ maternity leave

8107 is a mandatory condition on all 457 visa holders.One of the conditions requires that a 457 holder must not stop working for the employer who sponsored them, i.e. become unemployed or change employer. Prolonged 'unpaid' leave could be considered as cessation of employment and therefore breaching this condition.This issue has long been grey and relatively unclear.DIAC is particularly vague about unpaid maternity leave, where the visa holders have a legal entitlement under the IR law. DIAC is fairly flexible regarding unpaid maternity leave provided the MSL is maintained.These matters could be resolved between the employers and employees if managed with care and sensitivity.A good understanding of the relevant immigration, employment and other related laws is critical.

Article: 457 nurse sacked for arriving pregnant (The Australian)

The attached story about the pregnant nurse is a good example of a lack of understanding of 8107.The issue here is whether there had been discrimination at the workplace on the ground of pregnancy, rather than a breach of 8107.On the fact, the employee is at an early stage of pregnancy and ceasing employment is not an issue at that point in time as she is able to perform her duties.A possible breach will only arise when the employee stops working for a prolonged periodwithout pay.The question is whether she is entitled to unpaid maternity leave.If so, will the MSL requirement be maintained - if not, there will be a breach.If the employee is not entitled to unpaid leave, the employer can legally terminate their employment.

An employer should discuss these issues with an employee to seek a mutually beneficial solution.Knee-jerk reactions tend to exacerbate the problems.A sound knowledge of the migration law is important in managing a 457 visa program; we encourage employers to seek advice from legal professionals, such as Abacus Visa.

Extracts of DIAC's policy guidelines on Cessation of Employment are quoted below for your reference.

6 CEASING EMPLOYMENT

6.1 Background

Visa holders with condition 8107 cannot cease to be employed by their original sponsor. This includes situations where the visa holder has become unemployed.

6.2 Unpaid leave

In some cases, employers or visa holders have approached DIMA asking whether a proposed period of unpaid leave would constitute a breach of condition 8107. In other cases, during monitoring it has come to light that the visa holder is on a period of unpaid leave.

In such cases, the officer must consider whether the leave actually constitutes “cessation of employment” and thus a breach of condition 8107.

The Regulations do not specifically require a visa holder or sponsor to seek DIMA permission prior to the visa holder taking unpaid leave. However, if they seek advice regarding their plans in relation to the visa condition, the following considerations may be relevant in deciding whether a breach of condition 8107 has occurred or may occur.

6.3 Entitlement to leave

Unpaid leave may be considered appropriate if there is an entitlement that an Australian citizen/resident employee would be able to access. This meets the sponsor’s obligation of ensuring that temporary resident employees are accorded the same conditions of work as local employees.

In all cases it is expected that there would be a formal application for unpaid leave, which has been approved in writing by the employer. This includes leave applications that are processed and approved electronically.

6.4 When entitled to LWOP

In most businesses, employees are not normally entitled to long periods of leave until they have been employed for at least 12 months. Periods of leave without pay, study leave or sabbatical leave for more than 1 month in the visa holder’s first year of employment would be of concern unless exceptional circumstances exist.

Generally, if a visa holder is granted a visa for less than 12 months stay, it would not be expected that they would be entitled to or granted LWOP in that period.

6.6 Unpaid leave in breach of 8107

Unpaid leave is not generally considered appropriate in the following circumstances. Once again, the circumstances are not exhaustive and individual circumstances can be considered on a case-by-case basis. In cases where there is no reasonable explanation of the leave it could be considered that employment has ceased and that condition 8107 has been breached. Discretionary cancellation may be considered as a consequence.

Temporary lay-off

A temporary lay-off due to seasonal downturn in the industry is considered to be a cessation of employment, and thus a breach of condition 8107.

“Benching”

The practice of “benching” of employees by labour-hire or recruitment firms is not acceptable within the terms of condition 8107. If a 457 visa holder:

• comes to the end of their contract
• does not have another contract to enter into within 4 weeks of completing the previous assignment and
• is not receiving a salary in this period

it would be a breach of condition 8107 as they have ceased employment.

In such circumstances the sponsor should arrange for the visa holder to leave Australia.

Extended holidays

If a visa holder wishes to spend more than 3 months on unpaid leave in Australia for holiday purposes, it would be more appropriate for them to seek a visitor visa.

Long term study

Full-time study for more than 4 weeks could be considered both a cessation of employment, and a “change of occupation” (i.e. the visa holder is no longer employed, but is a full-time student) and thus potentially a breach of condition 8107. But see also Work-related study or sabbatical leave.

Visa holders who wish to undertake full-time study in Australia should apply for a student visa.

Maternity leave

Under some state industrial awards, employees are entitled to up to 12 months unpaid maternity leave. Unpaid leave of this duration would conflict with the TBE gazetted minimum salary requirements.

Visa holders should be informed that, while they may be entitled to this amount of leave under state law, 12 months leave without pay would be a breach of their visa condition. While their employer must allow them the leave, this does not affect the need to comply with immigration requirements.

While unpaid leave to which the visa holder is entitled due to Australia law cannot be considered a cessation of employment, it could constitute a breach of the sponsor’s requirement to ensure that the visa holder is paid at least the minimum salary level.

A lesser period of unpaid leave (e.g. 3 months), or a combination of paid and unpaid leave (where the unpaid portion does not exceed 3 months) may be considered acceptable. In these circumstances it is expected that the visa holder would still be paid at least the gazetted minimum salary level in force at the time for the year in question.

6.7 Unpaid leave & 457 minimum salary

The TBE minimum annual salary provisions still apply. If a 457 visa holder is on a period of unpaid leave while in Australia, the total annual salary received should be not less than the gazetted minimum salary level at the time of nomination application.