mark0 Posted June 29, 2014 Share Posted June 29, 2014 The company I work for is about to be the subject of a takeover. On the date of the takeover my employment will be transferred to the buyer and the company I currently work for will cease to exist. I will therefore be without a sponsor for my 457 visa unless the buyer decides to continue my sponsorship which may be difficult since presumably they won't have undertaken any labour market testing for my role. My employment contract makes provisions for a redundancy payment should I be made redundant as a result of a takeover as well as a transfer payment should I commence employment with a buyer of my company. However, I am worried that the buyer could use the fact that I am no longer eligible to work in Australia as an excuse to avoid making the transfer and redundancy payments since technically I will not be able to take up employment with the buyer unless they sponsor me. For example, they could argue that my position has not been made redundant, merely that they cannot / will not sponsor me to fulfill the same role in the newly formed company. Any thoughts or advice as to what recourse I might have should the buyer decide not to sponsor me and withhold redundancy and transfer payments. I am thinking about seeking some advice from an immigration / employment lawyer but thought I would look for views here first. Link to comment Share on other sites More sharing options...
Guest Posted June 29, 2014 Share Posted June 29, 2014 If the buyer decides not to sponsor you (or does not meet the criteria to sponsor you) then you will have 90 days to find a new sponsor or you will have to return to your country of origin. I believe there is some leniency negotiable for example if you are awaiting the outcome of an interview for example but I would definitely recommend a migration lawyer to assist you. Could you apply for a skilled migration visa? If they try to avoid making payments that are contractually obliged to make then I would suggest you contact Fair Work Australia http://www.fairwork.gov.au as a first step although you may need a lawyer to fight your case - your energy may be better spent looking for a new sponsor though. I am not sure if there is a time limit for claims but maybe pursue compensation once you have secured a right to stay. Link to comment Share on other sites More sharing options...
Adam Grey Posted June 29, 2014 Share Posted June 29, 2014 Labour Market Testing doesn't apply to all cases and isn't as big an issue as people assume anyway. Takeovers are common and if there's a number of existing 457 visa holders employed it's in the interest of the company to sit down with a professional to discuss compliance issues and strategies. Nomination transfers can then be completed swiftly with minimal disruption to all involved. Theres upcoming changes to the ENS TRT stream as well that could possibly mean your 2 year qualifying period does not reset. Link to comment Share on other sites More sharing options...
mark0 Posted July 1, 2014 Author Share Posted July 1, 2014 Thanks for your replies. I have done a bit of investigation and my nominated occupation is deemed to be ANZSCO skill level 2 which means that it is exempt from Labour Market Testing thereby making it easier for the buyer to nominate me should they wish to do so. I will have been in my current role for two years in October so the upcoming changes to the ENS TRT stream are welcome as I will hopefully be able to apply for PR in spite of the takeover assuming I am kept on by the buyer! With regard to the transfer and redundancy payments hopefully it will not come to having to employ a lawyer but I have found some comfort in learning that that Fair Work Act, which also covers 457 visa holders, makes provisions for redundancy payments on a transfer of business. Link to comment Share on other sites More sharing options...
Adam Grey Posted July 1, 2014 Share Posted July 1, 2014 Excellent. Goes without saying the ease of transferring should be made clear when they're making the decision. Hope it goes well, Link to comment Share on other sites More sharing options...
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