Last updated: 1st July 2024
ENDING EMPLOYMENT ON AN EMPLOYER SPONSORED WORK VISA - For Employer Sponsors
A fact sheet from Emergico Migration. Information that Employers and Visa Applicants must know.
Information that Employer Sponsors must know when a sponsored employee leaves or is terminated.
Introduction
When a person is on an Employer Sponsored Visa, there are times when employment may cease, for all sorts of reasons including:
- Redundancy;
- Termination of Employment or Dissmissal;
- Elective Resignation.
Temporary Sponsored Work Visas (482 and 457) impose strict requirements for sponsors to follow. This page mainly refers to 482 and 457 visa holders and sponsors, but permanent employer sponsored visa holders are mentioned towards the bottom.
Given that both the Employer and Employee have prescribed responsibilities under the terms of the Sponsorship, this page has been developed to provide information to employers so that they understand their rights and obligations, in the event of cessation of a sponsored worker’s employment.
The prescribed obligations and rights are the same, regardless of how the employment ends.
As we are often advising both the Employer and the Employee in the matter of a Temporary Skills Shortage Nomination and Visa, we may have a conflict of interest in dealing with one or other party, on cessation of employment. We will advise you if we cannot assist to advise you further because of an actual or perceived conflict.
Before Employment Ends
If an Employer decides to terminates the employment of a Temporary Visa holder, they must consider….
- Has the termination been made in accordance with Fair Work and employment law requirements?
- Is the position being made redundant? If so, has the redundancy process been implemented in accordance with Fair Work requirements?
- What costs will be associated with ending the employment of the sponsored worker?
If the Temporary Visa holder decides to leave employment, they must consider….
- Have they given notice to their employer properly as per the terms of their Contract?
- That they will be allowed to work for another employer without being sponsored, for up to 180 days.
- If they have not found a new employer to take over their sponsorship within 180 days, their visa may be cancelled.
- If the visa holder returns home, the 482 visa may be cancelled without notice while they are away.
- If the visa holder plans to lodge another visa application – for example a partner visa – they will remain on the 482 visa until either the new visa is granted; or the 482 expires.
The Sponsor’s Responsibilities
A person or corporation which is a Standard Business Sponsor (SBS), undertakes to meet all Sponsor Obligations throughout the period of the sponsorship, and for up to 5 years after the last sponsored worker leaves. This applies to Temporary Skills Shortage Visa Holders.
You can find a full list of Sponsor Obligations by clicking here.
In terms of employment, Fair Work Australia is the minimum underpinning standard; and in some cases a Modern Award or Enterprise Agreement may apply.
Employer responsibilities relevant to ending employment.
- Notify Border Force within 28 days of cessation of employment;
- If the employment is ending due to a business structural change, the appropriate notification needs to be made.
- Keep written records of all matters relating to the person’s employment and ending of employment;
- Pay reasonable and necessary one-way economy class travel costs to let the sponsored worker and their sponsored family members return home, if requested in writing.
- The obligation to pay travel costs ceases if the sponsored worker is granted a different visa or moves their visa to a new sponsor through a new nomination.
There can be significant penalties for employers, if the above obligations are not met.
An employer cannot enforce cancellation of a visa holder’s visa. Only the Department of Home Affairs has the power to cancel a visa.
The Visa Holder’s Responsibilities
Tips for Visa Holders relevant to ending employment.
Ensure that the sponsor has your correct email address and phone number, as these need to be passed on to the Australian Border Force. It is in your interests that Border Force can contact you if needed, otherwise you might miss important correspondence.
The employer must notify Australian Border Force of cessation of employment within 28 days.
You may work elsewhere for up to 180 days, but if you plan to remain in Australia, should be looking for a new sponsor to take over your visa.
If you do not find a new sponsor, after 180 days you may receive a letter called a Notice of Intention to Consider Cancellation (“NOICC”) . This is a very important letter. You must respond to the letter within the prescribed timeframe, otherwise your visa may be cancelled.
If you return home permanently, and your visa is cancelled, you may be eligible to apply for Superannuation contributions to be repaid to you.
When work ends on a Permanent Employer Sponsored Visa
Subclass 186 – Permanent Employer Sponsored Visa
When a person applies for a Subclass 186 Visa, either through direct entry, temporary residence transition stream or labour agreement, they sign an undertaking to remain for 2 years with the sponsor, from the time of grant of the visa. Further, the nominator signs an undertaking that they have at least 2 years of work available to the visa applicant.
If employment ends sometime after the Subclass 186 Visa has been granted, there is no requirement to report to the Department of Home Affairs.
If , however, employment ends AFTER lodgment of the 186, but BEFORE grant of the visa, the employer and employee are both required to report this to the Department as a Change of Circumstances. Notify your Emergico Registered Migration at the earliest opportunity so that they can arrange for you.
Subclass 187 – Regional Sponsored Migration Scheme
As above, when a person applies for a Subclass 187 Visa, either through direct entry or temporary residence transition stream, they sign an undertaking to remain for 2 years with the sponsor, from the time of grant of the visa. Further, the nominator signs an undertaking that they have at least 2 years of work available to the visa applicant.
Unlike the Subclass 186 Visa, there is a discretionary Cancellation Provision that applies to Subclass 187 visas, whereby if the person ceases work within the 2 years of grant, the visa may be cancelled. There is no mandatory reporting requirement, however if Border Force is notified of the cessation of employment, they may investigate the matter with a view to consideration of whether the visa should be cancelled.
If employment ends after lodgment of the 187, but before grant of the visa, the employer and employee are both required to report this to the Department as a Change of Circumstances. Notify your Emergico Registered Migration Agent at the earliest opportunity so that they can arrange for you.
Emergico Migration is an Australian based Registered Migration Agency which provides advice and visa assistance for people wishing to move to, or remain in, Australia. We specialise in Employer Sponsored, Skilled, Global Talent, Parent, Partner, Family, Student and Graduate Visas.
You can contact us by emailing: migrate@emergico.com, calling us on (7) 3861 0726, or visiting our website at www.emergico.com
