COVID-19: Temporary workers to access super early; WHMs to self-isolate and register before regional work; 457/482 workers to be allowed to work part-time for sponsor

The acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs announced major policy changes yesterday for the 2.17 million temporary visa holders currently in Australia. This includes allowing access to superannuation if in financial hardship for all temporary visa holders. He also urged those who cannot support themselves in Australia for the next six months to leave as quickly as possible.

An additional media release with the Minister of Agriculture specified changes to the working holiday maker visa and the seasonal worker programs to assist in critical industries, especially in regional areas.

Temporary visa holders who cannot support themselves urged to leave

For the 203,000 visitor visa holders presently in Australia, and for any other temporary visa holders who cannot support themselves financially, the Minister urges them to leave Australia “as quickly as possible”. Visitor visa holders under the Tourist stream are of particular concern simply because they are a visa category that does not have rights to work in Australia. Visa condition 8101 – No Work is a mandatory condition under this stream with extreme exceptions.

The definition of work in the Migration Regulations 1994 (Cth) is extremely broad: an activity that, in Australia, normally attracts remuneration.

This request to voluntarily depart is particularly aimed at those who do not have family that may assist with support, including accommodation and financial support. This announcement may also give an indication of how Home Affairs may treat further applications for onshore Subclass 600 – Visitor visas under the Tourist stream if claims of being unable to leave are because of the coronavirus pandemic.

The Minister has also urged New Zealand citizens, who are most likely to hold Subclass 444 – Special Category visas, to return to New Zealand if they too cannot support themselves despite being the only class of temporary visa holders who are eligible for the JobKeeper payment.

Temporary visa holders and access to superannuation

For all temporary visa holders who have accrued superannuation, including international students, will, if suffering financial hardship, be able to access their superannuation early.

For international students, as they must declare and in their application, and in some cases demonstrate they have the financial capacity to live and study for their first 12 months in Australia, will have access to their superannuation after living in Australia for at least 12 months.

Due to not being eligible for the JobKeeper allowance, temporary visa holders, many of whom are international students are likely to be the first in line to having their employment terminated and therefore financial assistance in the form of access to these funds seems appropriate. Normally, temporary workers must be overseas and not hold an Australian visa to claim their superannuation back.

There may also be some flexibility with international students who because of the coronavirus pandemic has caused them to not satisfy their visa conditions, citing the example of being unable to attend classes and therefore being in breach of visa condition 8202. This, however, should be treated with caution as it is very doubtful Home Affairs would be lenient without sufficient evidence.

All other temporary workers in financial hardship will be able to access up to $10,000 of their superannuation this financial year.

Temporary skilled visa holders

Major policy changes were announced for the 139,000 or so temporary skilled overseas workers, who are primarily Subclass 457 – Temporary Work (Skilled), Subclass 482 – Temporary Skill Shortage visa, and Subclass 494 – Skilled Employer Sponsored Regional (Provisional) visa holders.

Sponsored workers who have had their employment terminated are expected to depart Australia as per their visa conditions, and obviously if they cannot find another sponsor. Their visas would be subject to cancellation and may be done so without notice if they are overseas.

Visa holders who have been stood down, and therefore are still technically employed, are able to remain on their visa and be able to renew their visa despite the temporary lay-off.

Perhaps the most important change is that businesses can reduce the hours of work for their sponsored workers and not presumably be in breach of sponsor obligations and the visa holder in breach of their visa conditions. This is a significant policy change as normally, sponsors would be in breach of their obligations to ensure equivalent terms and conditions of employment unless the earnings of the nominated worker are above AUD 250,000.

The Minister has reaffirmed that time accrued holding a 457 or 482/TSS visa for the Subclass 186 – Employer Nomination Scheme visa and Subclass 187 – Regional Sponsored Migration Scheme visa (if meeting transitional arrangements) under the Temporary Residence Transition stream will be able to count should they be employed again with the same sponsor. This does not seem to modify the current regulations as the period required provides for no more than a year’s break. However, unless there is a change in regulations or policy, any work on a part-time basis will not count towards meeting the time required, as this must be full-time, which may be dangerous for anyone still required to lodge a 186 visa under the transitional/grandfathering arrangements.

Working holiday makers

Some important change to the 118,00 Subclass 417 – Working Holiday visa and Subclass 462 – Work and Holiday visa holders were made to prop up vital industries during these trying times. Exemptions to the 6-month work limitation for any one employer while holding these visas will apply to the health, aged and disability care, agriculture and food processing, and childcare sectors. Additionally, those working in these industries and whose visas will be expiring in the next six months will be able to apply for a new visa, which has been confirmed to be a Subclass 408 - Temporary Activity visa under the Australian Government Endorsed Event stream.

Those intending to undertake regional work to apply for a further working holiday visa must self-isolate for at least 14 days prior to moving to that regional area or face visa cancellation, likely on public health and safety grounds. They must also register on the Australia.gov.au website.

Seasonal workers and the Pacific Labour Scheme

Lastly, for additional support to Australia’s farming communities, Subclass 403 - Temporary Work (International Relations) visa holders under the Seasonal Worker Program stream or the Pacific Labour Scheme will be able to renew their visas while in Australia for a further 12 months with an approved employer, provided labour market testing requirements are met. Currently, 403 visa applicants under the Seasonal Worker Program stream must be outside of Australia at the time of applying, however, according to Home Affairs’ website, instead of another 403 visa, these workers can apply for a Subclass 408 - Temporary Activity visa under the Australian Government Endorsed Event stream instead.

These changes will most likely be temporary with further relaxing of policy possible should these measures not have the desired effects.