Article:

Implications of COVID-19 on migration and key considerations for business recovery

29 May 2020

Maria Jockel , Legal Principal and National Leader, Migration Services |

The Ministerial Statement on the Economy in the wake of COVID-19 to Parliament on 12 May 2020 referred to the unparalleled economic impact of the crisis, which has put the Australian way of life on hold.

As the Treasurer noted, the “hardest hit sectors like retail and hospitality are among the biggest employers, accounting for more than two million employees between them”.

A large proportion of Australia’s temporary visa holders with working rights in Australia are employed in hospitality and tourism industries.

Only Australian citizens and permanent residents are eligible for the Federal Government’s JobKeeper and JobSeeker programs. 

As the Federal Government has announced a three-stage plan to lift restrictions in the coming months, and already stage one has been rolled out across some states and territories, businesses are now starting to reopen.

The focus is now on transitioning to a ‘new normal’ as restrictions are progressively eased across Australia.

What options do temporary visa holders have as businesses progressively re-open?

Many temporary visa holders are the most vulnerable in the current economic downturn, with the prospect of no income support and the possibility of breaching their visa conditions.

Many temporary visa holders have been stood down, laid off or had their hours reduced significantly.

Below is a summary of the level of Government Assistance that may be available to some Visa holders currently.

Summary of Government Assistance by Visa

Visa Type Job Keeper Job Seeker Early Access to Superannuation Other (e.g. Family Tax Benefit Parental Leave, Medicare)
Australian Citizen and Permanent Resident Y Y Y Y
New Zealand Citizen (SC 444 holders) at 1 March 2020 Y N Y N
New Zealand Citizen (Non-protected SCV holders) and have lived in Australia continuously for 10 years Y Y Y N
Student Visa (SC 500) and Training Visa (SC 407) N N Y N
Temporary Graduate Visa (SC 485) N N Y N
Work Visa (SC 482 & SC 457) N N Y N
Visitor Visa (SC 600, SC 601 & SC 651) N N N N
Partner Visa (SC 820 & SC 309) N N Y Limited
Working Holiday Visa (SC 417 & SC 462) N N Y N
Business Visa (SC 188) N N Y N
Skilled Visa (SC 491 & SC 494) N N Y Limited
Parent Visa N N N N
Refugee and Humanitarian Visa N N Y Limited

 

Relaxation of work hours

Relaxation of work hours for international students working in medical and disability sectors: The Commonwealth Government has made changes to student visa work conditions to help boost frontline health efforts. To learn more about changes, visit the Department of Home Affairs website.

Temporary early release of superannuation

Eligible temporary residents are able to apply to access up to $10,000 of their super until 30 June 2020. Visit the ATO website for more information.

Health waivers for those who do not have Medicare

Most people who are not eligible for Medicare in Australia will have health or travel insurance. If they do not have adequate insurance cover, some states and territories, such as NSW, Victoria and WA, have announced that they will waive healthcare costs associated with COVID-19, if a person is treated in a public hospital. International students are also eligible to avail this waiver.

Free financial counselling

International students who are facing extreme financial stress in Australia may be able to access financial counselling services from qualified professionals who can provide information, advice and advocacy to people in financial difficulty.

The National Debt Hotline is another free tool available to those who are struggling to pay their debts. Students can call 1800 007 007 to speak to trained financial counsellors who can offer guidance specific to their situation.

Mental health support

The government is also providing help to ensure students have the mental well-being support they need in this time of crisis. International students in need of mental health support can get help through Lifeline Australia (13 11 14), Youth Beyond Blue (1300 224 636) and Headspace (1800 650 890).

Help available from universities

Australian universities have also stepped up to provide independent emergency monetary funds and food banks to help international students facing hardships. To date, Australian universities have committed more than $110 million to assist students.

Red Cross assistance to temporary visa holders

Funds are for people on temporary visas who have no way to support themselves and who have urgent needs. This includes food, medicine and crisis accommodation costs.

Who is eligible? Visa holders may be eligible for Red Cross Safety Net support if they:

  • are in Australia on a temporary visa
  • are in urgent financial hardship
  • cannot access Centrelink, Medicare or similar services
  • have no income, savings or other financial support (including from family overseas).

Eligible visa holders are requested to contact the Red Cross by email in the first instance so that they can be advised when the funds and arrangements are in place.

Further visa information is available on the Red Cross website.

Additional visa option

Possible visas include the Subclass 408 Australian Government endorsed events (COVID-19 Pandemic Event) Visa, which permits visa holders to remain in Australia for up to 12 months if they can evidence that:

  • They are not able to depart Australia due to COVID-19; 
  • Their current visa will expire shortly (or expired less than 28 days ago);
  • They have no other visa options;
  • They cannot meet the requirements of any other visa or they have ongoing work in a critical sector (for example, agriculture, food processing, health care, aged care, disability care and childcare) and an Australian citizen/permanent resident cannot fill the position.

Victorian Support

Support for job seekers

The Victorian Government has established the Working for Victoria initiative to help jobseekers find new opportunities. If you have Australian working rights, you are eligible to register. For more information or to register visit Working for Victoria.

Support for renters

There is currently a moratorium on evictions for six months from 29 March 2020, for residential and commercial tenants experiencing financial hardship due to the impact of coronavirus. Visit Consumer Affairs Victoria for more information.

The Victorian Government has also announced rent relief grants for people in Victoria experiencing rental hardship because of the coronavirus (COVID-19) crisis. For more information visit HousingVic.

Support for international students

The Victorian Government has announced a $45 million International Student Emergency Relief Fund for international students facing financial hardship because of coronavirus. For more information or to register, go to Study Melbourne.

It has committed to providing $1,100 grants, equivalent of two weeks of JobSeeker payments that are expected to be cover 40,000 students from universities, TAFEs and private colleges.

The students can complete this webform to register their interest to be notified as soon as the applications open.

City of Melbourne Council has partnered with Queen Victoria Market on the 'Our Shout' program to help international students access fresh food and produce during this challenging period. Find out more and submit your application online.

Support for multicultural and multifaith families

The Victorian Government has announced a $11.3 million funding package to support multicultural and multifaith communities through the coronavirus pandemic. The package includes the following support:

  • Nearly $5 million to support vulnerable and at-risk youths and families in financial  hardship who need essential items such as food and clothing
  • $2.2 million to provide basic needs assistance to thousands of asylum seekers
  • $1.1 million toward culturally appropriate family violence prevention and early intervention services
  • $1 million to boost translated messaging across government departments.

What does this mean for the hospitality sector, which relies heavily on 457/482 visa holders and part-time and casual employees, including international students?

With some 2 million temporary visa holders currently in Australia, all visa holders must maintain their lawful status and comply with their visa conditions or make arrangements to depart Australia.

The Department of Home Affairs has initially taken a light touch approach to, for example, relaxing student visa working conditions for supermarkets and aged care, but there is likely to be a tightening of the laws from 1 July 2020, as the focus must be on protecting Australian jobs.

Businesses have an important role to play in getting back to work and creating more jobs, while managing the safe and productive return to work post COVID 19.

Businesses need to comply with the relevant Public Health Directives, legislative Work Health and Safety obligations, the Fair Work Act 2009 and approved sponsors or former approved sponsors of temporary visa 457/482 primary visa holders, must meet the applicable Sponsorship Obligations.

All employers must ensure that they only employ persons lawfully in Australia with the required work rights.

The Department of Home Affairs has unprecedented levels of integrated data collection, sharing and analysis capabilities across all visa programs.

The Department of Home Affairs Data Matching Protocol with the Australian Taxation Office (ATO) means that the estimated total number of records that will be obtained to 2020 is likely to exceed 20 million individuals.

With the Enhanced Integrity Act, which came into effect in December 2018, the Data Matching Protocol means the ATO provides data to the Department including tax file numbers, income details, ABN’s and related data from Single Touch Payroll.

Data matching enables ready identification and targeted action in cases of potential and actual breaches and non-compliance across government agencies including the Australian Border Force and the Fair Work Ombudsman (FWO).

Businesses must ensure compliance with all obligations, and be aware that in the case of sponsor monitoring, this is undertaken by the sworn, non -uniformed officers of the Australian Border Force, including in conjunction with the FWO.

A continued focus on compliance and enforcement – underpayments

The FWO in conjunction with the Australian Border Force and the ATO is continuing to audit all industries, with a particular focus on the hospitality sector.

After a nationwide audit of 1,215 businesses, which commenced in April 2018, in industries including hospitality and retail, the FWO recovered $1.3 million for underpaid workers.

The FWO has entered into a Memorandum of Understanding with the Australian Hotels Association (AHA) because of the level of non-compliance, which provides that the AHA can provide advice, assistance and representation to members in the hospitality sector, including hotels, resorts, casinos, taverns, wine saloons, licenced retailers and other business, which it refers to as the hospitality sector.

The recent Federal Court case of Fair Work Ombudsman v HSCC Pty Ltd, Hero Sushi was found to have underpaid $700,832.88 to international students and working holiday makers between April 2015 and July 2016 .

Employees were paid a flat rate as low as $12 an hour and had not received their entitlements under the Fast Food industry Award 2010.

The Federal Court imposed significant fines on the directors involved in these contraventions of workplace laws.

A significant fine was also imposed on the payroll company for falsifying records.

Employers must understand and comply with record keeping and payslip obligations under the relevant modern award and Fair Work Act and ensure those records are readily accessible.

The recent Full Federal Court decision in Workpak Pty Ltd v Rossato found that an employee of a labour hire business was in fact ‘other than a casual employee’ under the Fair Work Act, and was entitled to annual leave, compassionate leave and personal leave.

Employers should be wary of classifying the employment as casual but need to consider the real substance of employees' work in assessing the status of the employment relationship.

As employers have equal obligations to visa holders as to domestic workers under Australia’s workplace laws, and simply paying back employees does not absolve an employer of liability, make sure your business is compliant.

This includes maintaining records of actual hours of work and pay rates. All employers should reassess current arrangements, including payroll arrangements and any third party and labour hire arrangements.

Make sure your business only employs visa holders in accordance with Australia’s complex migration laws and seek out expert migration, employment or tax advice so you can demonstrate due diligence and are ready to make a comeback from COVID 19.

Directors and Boards need to be aware of the implications for director liability, including under the new Enhanced Integrity Act, which allows for ’naming and shaming’ of businesses which fail to comply with applicable Sponsorship Obligations.

Re-opening businesses is essential to the long-term recovery of the economy. Opening up means complying with obligations, including to customers, and staff.

Identify what can go wrong in your business, and tailor a plan to a successful return to ‘the new normal ‘.