COVID-19 & TSS Work Visas Explained
Uncertainty as to the depth and breadth of the economic impact of COVID-19 is causing great anxiety for Australian employers who have invested heavily in securing overseas talent for their businesses.
The anxiety is also being felt by TSS visa holders who due to the effect of the virus on the economy may be forced to return to their home countries unexpectedly.
TSS Visa Condition – Work Limitation
A primary TSS visa holder has condition 8607 attached to their work visa.
Subclause 8607(2) of the condition states, that unless exempted, a primary TSS visa holder must only work in a position:
• For a visa granted in the Labour agreement stream – for the business who nominated them in their most recently approved nomination;
• For a visa granted in Medium or Short-term stream and sponsored by an Australian business – for the business who nominated them in their most recently approved nomination or an associated entity;
• For a visa granted in Medium or Short-term stream and sponsored an overseas business – for the business who nominated the occupation in their most recently approved nomination.
Subclause 8607(5) states that a primary TSS visa holder who has ceased employment has up to 60 consecutive days from ceasing employment to find a new sponsor or to depart Australia.
A primary TSS 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.
What Options are available for TSS Employers?
Australian employers invest heavily in securing overseas talent to assist them in operating and growing their business.
With the COVID-19 pandemic and its devastating effect on business activity at present, many of these businesses are having to make hard decisions with respect to their employees.
A common question from Australian employers at present is “What do I do with my overseas employee? I can’t afford to pay wages at the moment?”
The following strategies may be of assistance to Australian employers in their endeavour to keep their TSS employees:
1. The employee takes paid leave; or
2. The employee is placed on unpaid leave. Under policy this period should not be for more than three months; or
3. The employee is terminated and prior to the expiry of 60 days the employment is reinstated.
Further if a primary TSS visa holder is placed on part time employment the visa holder has not breached their visa condition, however the Australian employer is likely to be in breach of their sponsorship obligations.
The above may assist the Australian employer in the short term, however the employer must be conscious of not breaching their sponsorship obligations.
Notice of Intention to Cancel
If the Department issues a notice of intention to cancel the TSS visa because of a breach of condition 8607(5), this notice will provide the visa holder with the opportunity to explain to the Department why the condition was breached and why the visa should not be cancelled.
The cancellation power available to the Department in these matters is discretionary in nature and as such for example, if the TSS visa holder is re-employed by the sponsor, this could be a consideration which the delegate takes into account when determining whether or not to cancel the visa.
If you are an Australian employer or a TSS visa holder who has been affected by COVID-19 contact Alan Rigas Solicitors in Sydney to discuss your circumstances: 02 9635 5333
Please click below to read some of the recent announcements made by the Australian Government in its efforts to protection Australians from Covid-19.
It is important to keep in mind that as the Covid-19 situation develops in Australia, the Australian Government will announce further measures.