It is common for employers to utilise temporary work visa schemes when employing foreign workers. Often, human resource departments will come across subclass 457 and 482 visa applicants/holders during the recruitment process. While many employers are familiar with their obligations as sponsors, it is also important to understand the obligations which apply to employees who are subclass 457 and 482 visa holders, as a breach of visa conditions may result in visa cancellation and sanctions on the employer.
On 18 March 2018, the Federal Government introduced the Subclass 482 Temporary Skill Shortage Visa, which was designed to take over the Subclass 457 Temporary Skilled Visa. This means that employees holding a subclass 457 visa would have applied for their visas before the subclass 482 visa was introduced.
Subclass 457 and 482 primary visa holders are subject to similar visa conditions, the most important of which are:
- Condition 8107 – for subclass 457 visa holders
- Condition 8607 – for subclass 482 visa holders
Here is what you need to know about these two employment conditions if you find them on your foreign employee or job candidate’s visa:
What tasks and positions can I assign to the employee?
457/482 visa holder employees must work in the occupation for which your business has nominated them. For example, if your business has nominated the employee as a Software Engineer, the employee must only work as, and perform duties of, a Software Engineer.
Can I ask the employee to take on another position in a different occupation?
Any change of duties can only be temporary and up to 60 consecutive days. Your employees will be in breach of their visa conditions if their duties are regularly revised. However, you are able to promote your employees to a more senior role in the same occupation as time progresses. Your employees will not be in breach of any visa condition as long as they perform the tasks of the nominated occupation. For example, an employee may be promoted from the position of Accountant to Senior Accountant to handle more complex matters and carry out extra managerial duties. As long as the significant majority of the employee’s duties fall within their nominated occupation as an Accountant, they will be complying with their visa conditions.
Who can the employee work for?
This depends on how, and by whom, the employee was nominated.
The most common scenario is where local Australian employers seek to hire foreign workers due to local labour shortage. This type of employer uses their local entity, such as an Australian company or sole-trader, to register as a Standard Business Sponsor. If an employee is nominated by a Standard Business Sponsor, the employee is able to work for the sponsor and its associated entities. For example, a subclass 457/482 visa holder employee can work in the sponsor’s business as well as those owned by its local associated companies.
Some employers may use an overseas entity to nominate a foreign worker. This is common for overseas employers who are establishing their businesses in the local market, but do not have a local Australian entity. Employees nominated by this type of employer are only allowed to work for the foreign employer who has nominated them.
If an employer has entered into a labour agreement with the Department of Home Affairs, the employee can only work for the employer who nominated them.
When must a subclass 457/482 visa holder start working?
Once the 457/482 visa has been granted, an employee must start employment with the sponsor either within 90 days of arrival in Australia, or within 90 days of the grant of visa if they are already in Australia at the time of grant.
If the employee is already a 457/482 visa holder when approaching you, and was previously sponsored by another employer on this visa, the employee does not need another 457/482 visa but is only permitted to start employment with your business after the nomination for the relevant position within your business is approved.
How long can a subclass 457/482 visa holder stay unemployed?
Employers may be approached by job candidates who are already 457/482 visa holders. In some circumstances, employers may need to lodge its nomination quickly to protect their desired job candidates from any breach of visa conditions. This means that the new employer must lodge a new nomination application before the end of the maximum unemployment period. The period permitted varies as follows:
- for visas granted before 19 November 2016 – maximum of 90 consecutive days
- for visas granted on or after 19 November 2016 – maximum of 60 consecutive days
What if the employee is required to have mandatory authorisation to work (such as a licence, registration or membership)?
If authorisation is required, the employee must either hold the authorisation within 90 days after arrival in Australia, or within 90 days after the grant of visa if the employee is already in Australia at the time of grant. The employee must notify the Department if an application for the authorisation is refused. The employee must also continue to hold and comply with conditions of the authorisation, and notify the Department if the authorisation ceases, or is revoked or cancelled.