Temporary migrants comprise approximately 11 percent of Australia’s workforce. In times of economic downturn, history shows us that temporary migrant workers will be among some of the first to be displaced, as businesses struggle to remain viable.
While all migrant workers in Australia have the same rights afforded to Australian citizens under the Fair Work Act 2009 (Cth), temporary migrant workers do not enjoy the same privileges as Australian citizens or permanent residents in so far as they currently have limited access to social security benefits, nor do many have the same family support networks available to many Australians.
Impacts on companies and migrant workers
The circumstances are likely to be made more difficult in light of the current coronavirus pandemic. Australian employers are not able to access JobKeeper payments with respect of any employees who hold temporary skilled work visas. Many Australian businesses have announced arrangements to reduce staff hours or salary payments, temporary lays offs and stand downs, which may lead to redundancies. For those employers and impacted temporary visa holders, who may become displaced as a result, there are a number of pertinent considerations.
For the employer, once temporary layoffs, stand-downs, or redundancies are effected, businesses will be required to report those change in circumstances to the Department of Home Affairs. For impacted visa holders, international travel is now difficult meaning that those temporary visa holders who did wish to depart may find it difficult to access flights, however the Department of Foreign Affairs and Trade is facilitating some flights to certain destinations. Further, even if these impacted visa holders do depart Australia, there may be no prospects of immediate employment awaiting them in their home country.
For those temporary sponsored visa holders who choose to remain in Australia, the current Australian immigration regime does not permit them to work for a new employer, unless the new employer agrees to sponsor them and follow the immigration process for sponsorship. Typically, they will also be living against ‘the clock’ of visa expiration or visa cancellation, prescribed under the Migration Act 1958, without limited access to social security.
Concessions available for affected migrant workers
Given the unprecedented circumstances, the Minister for Immigration has confirmed that some concessions will be available for temporary visa holders, and their employers, to offer some certainty about their immigration status in Australia. The Federal Government has also allowed access to up to $20,000 of superannuation for temporary migrants in financial distress, increased the hours that can be worked under certain visa classes1 and offered visa extensions in certain circumstances2. Similarly, some state and territory governments have agreed to offer small payments to temporary visa holders and charitable organisations including the Australian Red Cross are also providing emergency relief for temporary migrants, although the level of support is unlikely to meet the demand.
In times of business and economic uncertainty, the migration legislation contains a number of provisions that employers can use to offer some continuity of employment for impacted temporary visa holders:
- Leave entitlements – migrant workers in Australia may access their accrued leave entitlements. Migration policy also contemplates that subclass 457 and 482 visa holders can access leave without pay (LWOP), although some limitations apply.
- The use of LWOP, while undesirable for migrants who will lose income over that period, does mean that employment will not cease, and in the event of short-term economic turnaround, means the temporary migrant worker can return to work without needing to navigate further immigration processes.
- For non-employer sponsored temporary migrants, including international students, the migration legislation does not prohibit a reduction in hours, meaning that part-time work arrangements may be available. There may be potential for some temporary migrants to increase their hours worked if that work is available to them. (The situation for sponsored 457 and 482 visa holders is more complex).
- Movement of employees between business structures – for large organisations with multiple entities, it may be possible to move temporary migrant workers between business entities without the visa holder being in breach of their visa conditions.
- Temporary changes in role or duties – there is scope within migration policy for temporary sponsored workers to have their role or duties adjusted over the short term, which may assist some businesses employ their existing workers more flexibly without it amounting to a breach of visa conditions.
Where employment continuity is not possible, we can provide advice about employer and sponsor obligations (including statutory notification requirements) under the migration legislation and the implications for migrant workers.
Australia’s migration laws are complex and we recommend employers contact us to explore how we can provide support with respect to managing migrant workers in Australia.
KPMG Australia will continue to engage collaboratively with the Australian and State and Territory Governments to identify solutions to assist business and migrant workers in Australia.
If you have any questions regarding the content of this article and would like speak to someone from our team please contact us.