Be careful laying off staff who hold sponsored employment visas during the COVID-19 era.
Businesses that employ sponsored visa holders may need to consider redundancies, the reduction of employee hours, shifting employees into different roles, and putting staff on leave in order to get through this crisis. Any of these steps can have an effect both on that visa holder’s compliance with their visa conditions and ability to remain in Australia, and the business’s compliance with their sponsorship obligations and ability to continue to sponsor visa holders.
While it may be the case that the Department is taking a flexible view on compliance in the midst of this crisis, any action you take now can still have long-term consequences once the fall-out is over.
Similarly, while the Department may be considering what amendments can be made to visa criteria, it should also not be assumed that any particular relaxation of rules or discretion will, in fact, come into effect.
These are some issues to keep in mind before taking any action regarding your sponsored employee staff.
- Making a sponsored employee redundant will trigger several obligations of the sponsoring employer.
- Sponsors are liable for paying costs to enable the sponsored persons including their family members to leave Australia, and if it comes to the worst, costs associated with locating and removal from Australia of sponsored workers whose visas are no longer in force and who fail to depart Australia on time.
- Sponsors continue to be responsible for paying the nominated salary until sponsored workers depart Australia.
- All of this is made more difficult because the COVID-19 travel restrictions make leaving Australia impossible at this point in time.
- Putting an employee on leave without pay may be allowable under the current employment requirements.
- It is not yet clear what effect reducing an employee’s hours would have on their visa, or on the sponsor’s obligations.
We urge you not to take any steps regarding a sponsored employee’s employment without full consideration of all the ramifications on both the employee and your business, and to seek legal advice where possible.