COVID-19: Impact on Australian temporary work visas and Australian workers overseas – what employers need to know – Coronavirus (Covid-19)

COVID-19: Impact on Australian temporary work visas and Australian workers overseas - what employers need to know - Coronavirus (Covid-19)
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In brief – an update on what employers need to know about the
current travel restrictions

Recent developments of COVID-19 have caused major disruptions to
business and concerns for continuity where key staff have been
stranded overseas due to border closures and flight
cancellations.

With all this change it is difficult to keep up to date with
current requirements in terms of returning travellers and those who
can’t get home.

Key points

  1. Travel restrictions imposed on incoming non-citizens and non-
    residents until further notice

  2. All people entering Australia are required to self-isolate for
    14 days

  3. Employers need to be aware of immigration and employment law
    obligations when there has been a change of circumstances in
    employment resulting from COVID-19

Employers should be regularly checking the World Health Organization website,
the
Federal Government website
,
Smart Traveller
and State Health Department websites for the
most up to date information.

Travel restriction imposed on all travellers who are
non-citizens and non-residents

From 9 pm Friday 20 March 2020, all
non-citizens and non-residents
will be not be allowed to enter Australia. Only Australian
citizens, permanent residents of Australia, New Zealand nationals
who are usually resident in Australia and immediate family members
(on temporary visas) of Australian citizens and permanent resident
holders will be allowed to travel and enter Australia. The travel
restriction will remain in place until further notice. No timeframe
is provided as to when the restriction will be removed.

Temporary visa holders who do not fall into the above
categories, including visitor visas with multiple entry visits,
Temporary Skill Shortage (TSS) visa holders will not be
able to enter Australia
unless there is a compassionate or
compelling reason to travel to Australia. An application to apply
for an exemption must be made.

Mandatory self-isolation for all international travellers
entering Australia

All people entering Australia are required to self-isolate for
14 days from the date of arrival into Australia.

Failure to self-isolate will result in fines of up to $63,000 or
up to 5 years’ imprisonment under the Biosecurity Act
2015
(Cth). In addition, each State and Territory have also
imposed pecuniary penalties and or imprisonment for breaches to
quarantine directives.

Employers who have employees who are Australian citizens or
Permanent Resident visa holders who are currently overseas

From 25 March 2020, a travel ban will be imposed prohibiting
overseas travel until further notice. The Department of Foreign
Affairs and Trade issued advice recommending Australians abroad,
who wish to return home do so as soon as
possible
.

For employers who have employees on assignment overseas,
employers should consider:

  • How long is the employee required to remain overseas? If it is
    a short trip, employees should return as soon as possible before
    borders are shut and commercial international flights are no longer
    available.

  • If the employee is on a long term assignment or is unable to
    return, consider what measures are in place in that host country to
    ensure that the employee is able to remain in the host country
    lawfully and safely. Employees could run the risk of visa
    non-compliance issues if their visas expire whilst they are
    overseas. Employers will need to make sure that employees are able
    to renew their visas or relevant work permits to facilitate a
    further stay.

Employees wishing to remain working overseas

The Department of Foreign Affairs and Trade
(DFAT) has strongly encouraged Australians who are
overseas and want to return, do so as soon as possible. There are
concerns that travellers will be prevented from returning at a
later time due to further border closures. There may be limited (or
no) consular assistance for people who remain. It may become
increasingly difficult to get a flight home should an employee
change their mind and want to return to Australia.

However, some employees have expressed a desire to continue
working abroad due to:

  • concerns that international travel home through potentially
    affected regions may actually increase their risk of exposure to
    COVD-19;

  • the possibility that they may face stand down or redundancy if
    their work largely consists of overseas travel and they are
    prohibited from returning to work at a later point (ie FIFO
    employees); and

  • a desire to maintain business continuity and relationships with
    international clients.

Under Work Health and Safety Laws, Australian Employers are
required to ensure, as far as reasonably practicable, the health
and safety of employees in the workplace. This includes conducting
risk assessments and adopting reasonable measures to reduce the
risk of exposure to COVID-19.

What are my obligations as an employer when an employee wants to
travel overseas? Some employers may not have cancelled overseas
travel commitments for staff.

Due to the Department Foreign Affairs and Trade
(DFAT) travel restrictions, changes to travel
insurance coverage (now that a Pandemic has been declared) there
are significant risks in authorising overseas travel for work in
the near future.

Essential domestic travel within Australia is now considered
high-risk. Most Australian states have now moved to close their
borders as of 24 March 2020 to interstate visitors who are not
exempt.

Employers who have employees on temporary visas who are
currently overseas

Employers need to consider the impact of travel restrictions for
employees who have visas that will be expiring whilst overseas or
cannot return back to Australia due to travel restrictions.

Potential compliance issues

In situations where an employee cannot return to Australia, the
Department of Home Affairs have not released any further
information as to how they will assess compliance in an event of
the global health crisis. We recommend that records be kept in the
event that you are required to provide a response if
questioned.

TSS visa holders who spend time outside Australia are not
considered to have ceased employment solely because they are, or
have been absent from Australia. As long as the visa holder has not
ceased employment and there are reasonable grounds for absence,
they are not considered to be in breach of condition 8607. The
Department of Home Affairs would assess absences on a case by case
basis.

Please note, absences from Australia may impact the TSS visa
holder’s future eligibility for the 186 Employer visa and
meeting general residence requirements for Australian
citizenship.

What happens if an employee’s visa expires whilst
overseas?

In cases where the employee’s visa expires whilst overseas,
a new visa application that the employee is eligible for will need
to be made when travel restrictions are lifted.

Employers who have employees on temporary visas who are
currently in Australia

Employers should undertake an audit to check for any upcoming
visa deadlines and cessation of employment contracts to avoid
issues of non-compliance with sponsor obligations and employees
becoming inadvertently unlawful.

Can I still apply for a visa?

Yes. If an employee has an upcoming visa expiry and they are
still required to fill a position in the business, employers can
still apply for TSS visa applications. New applications must be
made before the current visa expiry date so that a Bridging Visa A
can be issued to allow for a further stay in Australia whilst the
new application is under processing.

Employers currently sourcing potential candidates from overseas
will need to be aware that there will be delays with visa
processing and that the candidate will not be able enter Australia
until the visa is granted and the travel restriction has been
removed.

Processing times

The Department of Home Affairs have not advised that processing
times will be affected. However, depending on the type of visa
lodged, some visa subclasses such as the Subclass 400 Temporary
Work (Short Stay Specialist), Subclass 600 Visitor, Subclass 417
Working Holiday Visas are processed by offshore offices and there
could be a delay processing visas offices are shutdown.

We do not expect processing times for Visa applications such as
the TSS visa to be significantly impacted as they are processed in
Australia and their offices remain open. Applications are processed
in accordance to level of priority determined by the Minister for
Immigration. Requests for priority processing allocation is not an
option.

Pending TSS visa applications – I want to withdraw

If a TSS visa application has been lodged, the Department will
need to be notified and a formal withdrawal will need to be made as
soon as possible from employer and the visa applicant.

Changes to a TSS visa holder’s employment terms and
conditions

Certain changes to a sponsored employee’s terms and
conditions of employment may trigger sponsor notification
requirements to the Department of Home Affairs. Where a TSS visa
holder is made redundant, temporarily stood down or changes their
role and work hours, an assessment is required to determine whether
the business and the TSS visa holder is still compliant with
sponsorship obligations and visa conditions.

For example, under policy, if a TSS visa holder is temporarily
laid off due to seasonal downturn in the industry in which they are
employed, they may be considered to have ceased employment. The
visa holder may be in breach of condition 8607 if:

  • the Department has not been advised accordingly; and

  • if more than 60 consecutive days has elapsed since
    lay-off.

What happens if an employee’s visa is expiring but they
are unable to return home when their employment ceases?

The employee will need to apply for another visa that they are
eligible for. In many cases, this would be a 600 Visitor visa. If
there are special visa conditions attached preventing lodgment,
please seek professional assistance for advice and requests for
waivers.

Notification of cessation of employment is also required within
28 days to the Department’s monitoring section.

Other visas

Employers in specified industry sectors can register to have
access to the temporary relaxation of working hours for student
visa holders. Aged case providers registered with the Department of
Health do not need to register.

If there is a change in the sponsored employee’s terms and
conditions of employment, we recommend to seek advice to confirm
what your obligations are to maintain ongoing immigration and
employment compliance.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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