The COVID-19 pandemic has had far-reaching impacts on populations across the globe. Most notably, the health impact has been significant. But there have also been other aspects of our lives which have been affected, one of these being the impact on businesses and the economy. Many organisations have been forced to change how they conduct their day-to-day operations, quickly and often with little notice. In some cases, they have even been forced to shut down as lockdowns become almost a daily event across many countries as they grapple with this new and immense challenge. And given that this pandemic is almost a once in a century event, the fact that we have not experienced anything like this before means we have essentially had to learn as we go along. No experience in dealing with such an event has been a great shock to the system, and with no end in sight, the uncertainty remains.

In Australia, many businesses and temporary visa holders whom they have sponsored too have been affected by disruptions to their normal operations. Some have been forced to shut down temporarily, vary their work hours, how they operate and their service offering (what they can offer to the public and how this can be delivered). These are just some examples of how the pandemic has impacted on businesses of all sizes, big and small, in many industries across the economy, in virtually all regions of the country.

These impacts have also been felt by workers who are employed by affected businesses. One area of particular concern to temporary visa holders has been how these impacts will affect their ability to qualify for a permanent visa at a future date. In many instances, sponsored temporary workers have planned a visa pathway to eventually qualify for a permanent visa. What happens now that they may no longer be able to fulfill these requirements, due to factors outside of their control?

What Are The Potential Impacts For These Visa Holders?

There has been much concern from visa holders, particularly those on a Subclass 482 Temporary Transition Scheme (TSS) visa (or its predecessor, the Subclass 457 Temporary Work (Skilled) visa) who, through no fault of their own, have been stood down, had their work hours reduced or been required to take unpaid leave for a certain period during the pandemic. The problem that arises in this regard is how this may affect their ability to qualify for the Subclass 186 Employer Nomination Scheme (ENS) visa under the Temporary Transition Stream (TSS).

Although not the subject of this article, we also note in passing that this also applies to the Subclass 187 Regional Sponsored Migration Scheme (RSMS). This visa was replaced by the Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa on 16 November 2019. The introduction of this new visa does not affect the ability for certain subclass 457 and 482 visa holders to qualify for a Subclass 187 visa under the TSS. You can learn more about the transitional arrangements in our article which provides an overview on all Skilled Regional Sponsored Visas.

Which Eligibility Requirements Are Affected By COVID-19?

There are two important aspects of the visa requirements which may be impacted as a result of the pandemic, as outlined below.

Employed For A Prescribed Minimum Period In The Nominated Position

One requirement to qualify for a Subclass 186 TRT visa under the TSS is that the nominee must have been employed in the position in relation to which they hold their Subclass 457 or 482 visa for a total period of at least three years (not including unpaid leave) in the four-year period immediately before the nomination application for the Subclass 186 visa TRT is made.

The Subclass 186 nominee must also have been employed and actively performing the duties of the nominated position for a total period of at least three years in the four-year period immediately before the nomination application was made.

Note that the relevant period is two years out of the previous three years before the nomination application is made, where transitional arrangements apply (this is the case where, on 18 April 2017, the nominee either held, or was an applicant for, a Subclass 457 visa which was subsequently granted).

What Happens If Visa Holders Have Been Stood Down, Had Their Work Hours Reduced To Less Than Full-Time, Or Been Required To Take Unpaid Leave Due to COVID-19?

Changes to the Migration Regulations have been introduced (effective from 24 November 2020) to ensure that Subclass 457 and 482 visa holders who have experienced these temporary changes to their employment arrangements due to COVID-19 are not disadvantaged in relation to the requirement to have been employed in the position in relation to which they hold the Subclass 457 or 482 visa for the relevant period of time (at least 3 years, or 2 years if transitional arrangements apply, as noted above).

As a result of these enacted changes, the relevant period does not include one or more COVID-19 reduced work periods.

What Is The COVID-19 Reduced Work Period?

A COVID-19 reduced work period in relation to the Subclass 186 nominated person is a period:

  • that occurred during the concession period;
  • during the period of four years (or three years for Subclass 457 visa holders subject to transitional arrangements) immediately before the nomination application was made;
  • throughout which the person was employed in the position in relation to which the Subclass 457 or 482 visa was granted; and
  • throughout which the employment was on a basis other than full-time (e.g. employment was part-time or the person was stood down) but would have been employed on a full-time basis had it not been for COVID-19; or the nominee was on unpaid leave due to the COVID-19 pandemic.

What Is The Concession Period?

The Concession Period commenced on 1 February 2020. The end date will be as prescribed by legislative instrument (this date is as yet unspecified).

What Does This Mean For Affected Visa Holders?

These changes mean that if a Subclass 186 TRT visa further assessment nominated person was required to take one or more periods of unpaid leave during the concession period, as long as they remained employed by the nominating employer during that time, the relevant period is three years (or two years if transitional arrangements apply), less the period of time where the person was on unpaid leave, or was employed on a basis other than full-time, as a result of the COVID-19 pandemic.

These changes apply to Subclass 186 nomination applications made:

  • on or after 24 November 2020; or
  • on or after 1 February 2020 and before 24 November 2020, if the application was not finally determined before 24 November 2020.

Age Requirement Exemption For Visa Holders Earning The Fair Work High Income Threshold

One of the requirements to qualify for a Subclass 186 transition stream visa is for the applicant to be under the age of 45 at the time of application. However, there is an exemption available to certain applicants.

Who Is Eligible For The Age Exemption?

A Subclass 457 or 482 visa holder who, at the time of application:

  • has been employed by their Subclass 187 visa TRT nominating employer in their nominated occupation at all times during the three years immediately before applying;
  • had annual earnings for each of the three years, that were equal to or greater than the Fair Work High Income Threshold (FWHIT) that applied at the end of that year; and
  • at almost all times during that three-year period, held a Subclass 457 or 482 visa.

What Is The FWHIT?

The FWHIT is indexed each year on 1 July and covers the period to 30 June. The amount changes every year. The current FWHIT (for the period from 1 July 2020 to 30 June 2021) is $153,600.

As a result of the COVID-19 pandemic, arrangements have been put in place (effective from 24 November 2020) to ensure that visa holders who would have had annual earnings above the relevant thresholds had they not experienced temporary changes to their employment arrangements due to COVID-19, are not disadvantaged in regard to their eligibility for the age exemption. As a result of this concessions, a pro-rata income threshold for the period when their earnings were impacted by the COVID-19 pandemic may be applied.

What Is The Age Exemption Concession?

A Subclass 457/482 coronavirus concession worker is a person whose employment has been affected by a coronavirus employment change, and, at the time of application:

  • has been employed by their Subclass 186 nominating employer in their nominated occupation at all times during the three years immediately before applying;
  • for each of those three years that did not include any part of the concession period, had annual earnings that were equal to or greater than the FWHIT that applied at the end of that year;
  • for each of those three years that included any part of the concession period, had annual earnings (excluding any earnings in a week where their employment was affected by a coronavirus employment change), that were equal to or greater than the relevant pro-rata threshold; and
  • at almost all times during that three-year period, held a Subclass 457 or 482 visa.

This concession applies to applications:

  • made on or after 1 February 2020 and before 24 November 2020 and not finally decided; or
  • applications made on or after 24 November 2020.

What Is The ‘Concession Period’?

The concession period commenced on 1 February 2020. The end date will be as prescribed by legislative instrument (this date is as yet unspecified).

What Is The Coronavirus Employment Change?

The applicant’s employment has been affected by a coronavirus employment change if at any time during the concession period the applicant was, as a result of COVID-19:

  • required to work at a reduced salary;
  • required to work reduced hours;
  • required to work part-time;
  • unable to work full-time; or
  • stood down.

In closing our discussion, the COVID-19 pandemic has had significant impacts on many people and businesses as it changes the way operations are conducted or in some cases, completely shuts businesses down. To take account of this monumental change and acknowledging that its effects are outside of the control of visa holders, concessions have been enacted to ensure that the pandemic does not negatively affect the ability of employer sponsored visa holders to qualify for a Subclass 186 TSS Visa.

Get More Information

You can read more about these changes by accessing the legislative instruments and explanatory statements below:

Migration (Transitional operation of regulation 5.19 for certain 457 visa holders) Amendment Instrument (LIN 20/190) 2020 and Explanatory Statement

Migration (Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Amendment Instrument (LIN 20/189) 2020 and Explanatory Statement

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Contact us to book a no-obligation consultation to find out more about the COVID-19 186 Visa transition concessions.

Sources/Links:

Migration (Transitional operation of regulation 5.19 for certain 457 visa holders) Amendment Instrument (LIN 20/190) 2020 and Explanatory Statement

Migration (Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Amendment Instrument (LIN 20/189) 2020 and Explanatory Statement

Fair Work Commission – Unfair dismissals benchbook – An overview of legal procedure & case law – High income threshold

https://www.fwc.gov.au/unfair-dismissals-benchbook/coverage-unfair-dismissal/high-income-threshold#field-content-1-heading

Australian Government – Fair Work Ombudsman – Award & agreement free wages & conditions – High income employees

https://www.fairwork.gov.au/awards-and-agreements/award-and-agreement-free-wages-and-conditions