In brief - an update on what employers need to know about the current travel restrictions

Recent developments of COVID-19 have caused major disruptions to business and concerns for continuity where key staff have been stranded overseas due to border closures and flight cancellations. 

With all this change it is difficult to keep up to date with current requirements in terms of returning travellers and those who can't get home. 

Key points

  1. Travel restrictions imposed on incoming non-citizens and non- residents until further notice

  2. All people entering Australia are required to self-isolate for 14 days

  3. Employers need to be aware of immigration and employment law obligations when there has been a change of circumstances in employment resulting from COVID-19

Employers should be regularly checking the World Health Organization website, the Federal Government website, Smart Traveller and State Health Department websites for the most up to date information.

Travel restriction imposed on all travellers who are non-citizens and non-residents 

From 9 pm Friday 20 March 2020, all non-citizens and non-residents will be not be allowed to enter Australia. Only Australian citizens, permanent residents of Australia, New Zealand nationals who are usually resident in Australia and immediate family members (on temporary visas) of Australian citizens and permanent resident holders will be allowed to travel and enter Australia. The travel restriction will remain in place until further notice. No timeframe is provided as to when the restriction will be removed.

Temporary visa holders who do not fall into the above categories, including visitor visas with multiple entry visits, Temporary Skill Shortage (TSS) visa holders will not be able to enter Australia unless there is a compassionate or compelling reason to travel to Australia. An application to apply for an exemption must be made.

Mandatory self-isolation for all international travellers entering Australia 

All people entering Australia are required to self-isolate for 14 days from the date of arrival into Australia. 

Failure to self-isolate will result in fines of up to $63,000 or up to 5 years' imprisonment under the Biosecurity Act 2015 (Cth). In addition, each State and Territory have also imposed pecuniary penalties and or imprisonment for breaches to quarantine directives.

Employers who have employees who are Australian citizens or Permanent Resident visa holders who are currently overseas

From 25 March 2020, a travel ban will be imposed prohibiting overseas travel until further notice. The Department of Foreign Affairs and Trade issued advice recommending Australians abroad, who wish to return home do so as soon as possible

For employers who have employees on assignment overseas, employers should consider:

  • How long is the employee required to remain overseas? If it is a short trip, employees should return as soon as possible before borders are shut and commercial international flights are no longer available.

  • If the employee is on a long term assignment or is unable to return, consider what measures are in place in that host country to ensure that the employee is able to remain in the host country lawfully and safely. Employees could run the risk of visa non-compliance issues if their visas expire whilst they are overseas. Employers will need to make sure that employees are able to renew their visas or relevant work permits to facilitate a further stay.

Employees wishing to remain working overseas

The Department of Foreign Affairs and Trade (DFAT) has strongly encouraged Australians who are overseas and want to return, do so as soon as possible. There are concerns that travellers will be prevented from returning at a later time due to further border closures. There may be limited (or no) consular assistance for people who remain. It may become increasingly difficult to get a flight home should an employee change their mind and want to return to Australia. 

However, some employees have expressed a desire to continue working abroad due to:

  • concerns that international travel home through potentially affected regions may actually increase their risk of exposure to COVD-19;

  • the possibility that they may face stand down or redundancy if their work largely consists of overseas travel and they are prohibited from returning to work at a later point (ie FIFO employees); and 

  • a desire to maintain business continuity and relationships with international clients.

Under Work Health and Safety Laws, Australian Employers are required to ensure, as far as reasonably practicable, the health and safety of employees in the workplace. This includes conducting risk assessments and adopting reasonable measures to reduce the risk of exposure to COVID-19. 

What are my obligations as an employer when an employee wants to travel overseas? Some employers may not have cancelled overseas travel commitments for staff. 

Due to the Department Foreign Affairs and Trade (DFAT) travel restrictions, changes to travel insurance coverage (now that a Pandemic has been declared) there are significant risks in authorising overseas travel for work in the near future. 

Essential domestic travel within Australia is now considered high-risk. Most Australian states have now moved to close their borders as of 24 March 2020 to interstate visitors who are not exempt.

Employers who have employees on temporary visas who are currently overseas

Employers need to consider the impact of travel restrictions for employees who have visas that will be expiring whilst overseas or cannot return back to Australia due to travel restrictions.

Potential compliance issues

In situations where an employee cannot return to Australia, the Department of Home Affairs have not released any further information as to how they will assess compliance in an event of the global health crisis. We recommend that records be kept in the event that you are required to provide a response if questioned. 

TSS visa holders who spend time outside Australia are not considered to have ceased employment solely because they are, or have been absent from Australia. As long as the visa holder has not ceased employment and there are reasonable grounds for absence, they are not considered to be in breach of condition 8607. The Department of Home Affairs would assess absences on a case by case basis.

Please note, absences from Australia may impact the TSS visa holder's future eligibility for the 186 Employer visa and meeting general residence requirements for Australian citizenship.

What happens if an employee's visa expires whilst overseas?

In cases where the employee's visa expires whilst overseas, a new visa application that the employee is eligible for will need to be made when travel restrictions are lifted.

Employers who have employees on temporary visas who are currently in Australia 

Employers should undertake an audit to check for any upcoming visa deadlines and cessation of employment contracts to avoid issues of non-compliance with sponsor obligations and employees becoming inadvertently unlawful.

Can I still apply for a visa?

Yes. If an employee has an upcoming visa expiry and they are still required to fill a position in the business, employers can still apply for TSS visa applications. New applications must be made before the current visa expiry date so that a Bridging Visa A can be issued to allow for a further stay in Australia whilst the new application is under processing.

Employers currently sourcing potential candidates from overseas will need to be aware that there will be delays with visa processing and that the candidate will not be able enter Australia until the visa is granted and the travel restriction has been removed.

Processing times

The Department of Home Affairs have not advised that processing times will be affected. However, depending on the type of visa lodged, some visa subclasses such as the Subclass 400 Temporary Work (Short Stay Specialist), Subclass 600 Visitor, Subclass 417 Working Holiday Visas are processed by offshore offices and there could be a delay processing visas offices are shutdown.

We do not expect processing times for Visa applications such as the TSS visa to be significantly impacted as they are processed in Australia and their offices remain open. Applications are processed in accordance to level of priority determined by the Minister for Immigration. Requests for priority processing allocation is not an option.

Pending TSS visa applications - I want to withdraw

If a TSS visa application has been lodged, the Department will need to be notified and a formal withdrawal will need to be made as soon as possible from employer and the visa applicant. 

Changes to a TSS visa holder's employment terms and conditions 

Certain changes to a sponsored employee's terms and conditions of employment may trigger sponsor notification requirements to the Department of Home Affairs. Where a TSS visa holder is made redundant, temporarily stood down or changes their role and work hours, an assessment is required to determine whether the business and the TSS visa holder is still compliant with sponsorship obligations and visa conditions. 

For example, under policy, if a TSS visa holder is temporarily laid off due to seasonal downturn in the industry in which they are employed, they may be considered to have ceased employment. The visa holder may be in breach of condition 8607 if:

  • the Department has not been advised accordingly; and

  • if more than 60 consecutive days has elapsed since lay-off.

What happens if an employee's visa is expiring but they are unable to return home when their employment ceases?

The employee will need to apply for another visa that they are eligible for. In many cases, this would be a 600 Visitor visa. If there are special visa conditions attached preventing lodgment, please seek professional assistance for advice and requests for waivers.

Notification of cessation of employment is also required within 28 days to the Department's monitoring section.

Other visas

Employers in specified industry sectors can register to have access to the temporary relaxation of working hours for student visa holders. Aged case providers registered with the Department of Health do not need to register.

If there is a change in the sponsored employee's terms and conditions of employment, we recommend to seek advice to confirm what your obligations are to maintain ongoing immigration and employment compliance.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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