Immigration Update - Subclass 457 Visa

Many employers are in search of alternative employment arrangements for their employees as a result of the current economic climate. However employers must be aware that there are special considerations for employees that hold a Subclass 457 visa.

There are two important categories to be familiar with; employee working conditions and minimum salary levels. Please see below for further information regarding these issues.

Working Conditions
All Subclass 457 visa holders must work a minimum of 38 hours per week; lesser hours are not accepted and may be considered a breach of the visa conditions. There may be exceptional cases, however anything less than 30 hours a week is prohibited. Thus it is improbable that part-time or casual employees on a Subclass 457 visas are likely to meet this requirement.

Salary Levels
The Department of Immigration and Citizenship (DICA) introduced as of July 1 a new minimum level salary for Subclass 457 visa holding employees. The new salary levels effectively amount to an increase of 4.1%. It is important to note that the new salary levels do not include additional benefits such as superannuation, LAFHA, travel allowances and/or bonuses.

The minimum salary levels are calculated on the basis of a 38 hour working week with the payments being made on a weekly, fortnightly or monthly basis. If the employee/s works in excess of 28 hours per week they must be remunerated proportionately for their additional hours of workload.

Salary Reductions
An employee’s base salary cannot fall below the minimum salary levels set by the DIAC. The employee may still be required to notify the DICA of reductions in salary levels depending on the circumstances of each case.

For more information on the minimum salary levels and occupations for the temporary business long stay visa notice 2009/2 please click the link below:

http://www.immi.gov.au/skilled/skilled-workers/sbs/occupations.pdf

New Role
If the employee is changing into a new role which is similar and requires an equivalent or similar skill set as their previous role the employee may be able to transition into the new role without notifying the DIAC. However, if the role is changing specifically, notification to the DIAC may be required and may result in a new Subclass visa being issued to the employee for their new role.

Sending employees on local or overseas secondments
This is permitted as long as employers continue to meet their obligations as a business sponsor and the employee continues to be treated as an employee of the business. There are no time limits on local secondments however overseas secondment cannot exceed 3 months.

Employee absence or unpaid leave
Once an employee had been employed for at least 12 months, a leave of absence or unpaid leave of up to four weeks is permitted.

If a holiday (including personal annual leave) outside Australia is to be taken, a period of no more than three months is deemed acceptable.

It is important to note that the minimum base salary requirements relative to the employee must be met at all times.

Redundancy/termination obligations
The DIAC must be notified within 5 working days of the employees last date of employment.

The employee will then have 28 days to:

i. Apply for another visa –e.g. a new subclass 457 visa through a different employer or a tourist visa.
Or
ii. Depart Australia

It is not an immediate obligation of the employer to offer return airfares and the DICA acknowledges this is a matter of negotiation between the employee and the employer.

Baker & McKenzie released an update on these issues along with changes to retirement for Subclass 410 Visa holders and visa options for same sex partners. To obtain a copy of their July 2009 issue please email admin.qld@donington.com.au or call us direct on 07 3838 1388.

To contact the Department of Immigration and Citizenship head to their website at:

http://www.immi.gov.au/