FAQ - Subclass 457 Visa Sponsors Affected by the Economic Downturn

How do I go about terminating the employment of my Subclass 457 visa holder as I cannot afford to keep them?

The Subclass 457 visa program is a temporary visa program allowing approved businesses to sponsor skilled overseas workers to fill positions that cannot be filled locally.

Any cessation of employment must comply with all relevant Commonwealth and state or territory laws. It is up to you to make decisions about redundancy in accordance with relevant terms in an award or agreement operating in your workplace and with workplace relations laws and anti-discrimination laws more generally.

Workplace relations laws set out specific rules and protections relating to the termination of an employment relationship.  These rules relate to the entitlements a worker may be owed at the conclusion of their employment, the period of notice required before employment is terminated, whether the termination of the employment was unfair or unlawful, and for the enforcement of entitlements due under an industrial instrument.

For more information about termination of employment you can contact the Workplace Infoline on 1300 363 264.

Can my visa holder take legal action against me for terminating their employment?

Subclass 457 workers recruited by Australian employers are entitled to the protection of Australian laws and they must be terminated in accordance with any termination and redundancy provisions in awards and agreements.

Subclass 457 visa workers can seek a remedy where they believe their termination of employment was not in accordance with the applicable Commonwealth or state or territory law.

When do my undertakings cease after I've terminated a visa holder's employment?

Most undertakings cease 28 days after the notification of cessation of employment has been received by the Department of Immigration and Citizenship; however there are some specified undertakings which remain in force until such time as a new visa is granted, or the visa holder departs Australia.
See: Employer Obligations

How long after I terminate the visa holder's employment should I let the Department of Immigration and Citizenship know?

You must let the department know of a sponsored person ceasing employment within 5 working days after the cessation of employment.

It is claimed that I am responsible for my employee’s ticket back to their country. Is that true? How about their partner and children?

The employer is responsible for ensuring that the cost of return travel to the employee’s home country (and accompanying family member/s) is met.  Existing contractual arrangements between the employer and employee may reflect an agreed arrangement for meeting these costs.

If this matter is not specified in the employment contract and you have not agreed to pay travel costs from Australia, you should contact DIAC on 131 881 and ask to speak with the Business Monitoring Unit.

What about paying for my employee's possessions to be moved?

This would depend on the contractual arrangements between you and your employee. DIAC does not require that employers pay for the shipping of personal possessions.

Information on the employer’s obligations under the Subclass 457 program can be found on the DIAC website.
See: Employer Obligations

I heard I have to pay my employee for 28 days after they leave the job. Is that true?

No. There is no requirement for an employer to pay a worker for 28 days after termination.

Workplace relations laws set out specific rules and protections relating to the termination of an employment relationship.  These rules relate to the entitlements a worker may be owed at the conclusion of their employment, the period of notice required before employment is terminated, whether the termination of the employment was unfair or unlawful, and for the enforcement of entitlements due under an industrial instrument.

Whether an employer is complying with the Minimum Salary Level (MSL) requirements can be a complex matter, particularly when assessing this around termination of employment.  It is important to note, however, that both termination payments and annual leave payouts count towards the MSL assessment.

Do I need to give 28 days' notice before sacking an employee? How much notice must be given?

There is no immigration requirement to provide a certain notice period. However, you need to comply with notice period provisions in an award or agreement operating in your workplace or in applicable workplace relations laws more generally.  For more information about termination of employment you can contact the Workplace Infoline on 1300 363 264.

What if I buy an air ticket for my employee and they get another visa before they depart?

This is a matter between you and the employee.

Can I advise my employee about their immigration options?

Generally, no. There are restrictions on giving immigration assistance.  Sponsors are generally only exempt from providing immigration assistance when sponsoring and nominating individuals to work for them and the related visa process. 

I have heard that before making any Australian citizens or permanent residents redundant that I have to make all of my 457 holders redundant first, is this true?

No.  It is an operational decision of employers to choose who they terminate and for what reason. The only requirement is that any termination complies with all relevant Australian laws including workplace relations laws and anti-discrimination laws.

Can I retain my 457 visa holder employees and make Australian citizens or permanent residents redundant?

It is an operational decision of employers to choose who they terminate and for what reason. Any termination of employment must comply with all relevant Australian laws including workplace relations laws and anti-discrimination laws.

The Subclass 457 visa program allows approved employers to sponsor skilled overseas workers on a temporary basis to fill positions that cannot be filled locally.  Approved business sponsors generally have a strong record of employing Australian citizens and permanent residents, and uphold non-discriminatory employment practices.