We often are asked if there is any legal requirement to stay with your employer after your PR is granted through the Employer Nomination Scheme (ENS) 186 visa. It is a tricky question but no is the simple answer.
Remember we are talking about ENS 186 visa, a very different animal compared to its 187 RSMS visa cousin. We have covered the RSMS 187 visa cancellation grounds and staying with your employer in our previous newsletter and the requirements have not changed.
ENS Employment Contract
When you lodged your ENS application you must have demonstrated an employment contract signed by yourself and your sponsor. It has a minimum two-year duration on offer. That contract is a civil agreement between yourself and the employer and the immigration department has nothing do with any oversight of that agreement. Particularly they have no control over whether that agreement was honoured or dishonoured after the visa was granted.
The most important thing to remember that it is solely between the two parties and the sponsored employee has the right to terminate that agreement under the usual Fair Work Australia standards at anytime.
The Employer has no right to make demands under that agreement that you remain working for them for the two period, it can only be a request. Similarly the employer is under no obligation at all to keep you employed for that two years as all employment contracts falls under the oversight of Fair Work Australia.
So Why The Two Year Contract?
Yes that’s a good question. In reality the contract serves no real life purpose except to demonstrate to the immigration department that the employer has the intention to offer the employment for two years and that the visa applicant intends to remain employed by the sponsor for two years.
After the PR visa is granted to the visa applicant, if the employers or the employees intentions change and the contract is terminated then the department has no control over this change of circumstances.
Change of Circumstances?
I can hear the cries of concern from many new PR visa holders, “doesn’t my visa grant letter tell me I have to tell the department any change of my employment circumstances”?
Why yes is does. But that does not mean you have any legal obligation to tell the immigration department this type of change of circumstance. We will cover this topic about the need to inform the department of any changes in circumstances in detail in a following newsletter. In relation to this issue regarding ENS employment, there is no legal obligation to inform the department if you leave your sponsoring employer. Furthermore for the rest of your life enjoying yourself as a permanent resident in Australia, there is never a need to inform the department of where you are working.
We have covered before the topic regarding incorrect information on visa applications and the legal powers which enable PR visas to be cancelled by the department.
In this context, from a visa applicant’s perspective, you must always be sure the answers given to the department are truthful in your visa application. If they discover they were not, then the power of cancellation can be used against you.
This is where the issue of intention is so important. If you signed that employment agreement without the intention to honour it, this may be seen as false information given to the department. If your intention was there when you signed it but afterwards your intention changed, then you are obligated to inform the department the change of circumstances if this occurred before the visa was granted.
If the intention changed after the visa was granted, whilst of course it is a change of circumstance, you have no obligation to inform the department.
What If My Employer Complains To Immigration?
In reality it always the employers who make the complaints, not the employees. A fresh PR visa holder is very unlikely to run to the department complaining the employer sacked them a month after the visa was granted. However a disgruntled employee gets sacked they are unlikely to make a fuss.
When an employer feels used and abused in the ENS process by their employee, yes they quite often do tell the department. This does not mean the department takes any action to follow up with the employee. In fact in the last 20 years we have never seen or heard of that occurring. I’ve seen many of examples of the department trying cancel an PR holder who obtained their residency through RSMS (187) but never for those who obtained it via the ENS (186) program.
The reason why the department hardly pursues a 186 visa holder is because the evidence required to prove incorrect information cancellation action based upon not honouring an employment contract is extremely difficult. I mention the word “hardly” because just because we haven’t seen or heard of it, does not mean it has “never” occurred.
An Example Of A Potential Problem For Cancellation.
Jessie tells his employer that he is leaving just one month after his ENS visa was granted. His employer gets upset and tells immigration that their employee never intended to stay with them for two years for they had already arranged another job offer with another employer before the visa was granted.
Immigration starts investigating and discovers that Jessie had signed another employment contract with another company before his visa was granted. They then take action to cancel Jessie visa for failing to inform the department of a Change of Circumstances.
Now in this case the department will have a good argument to cancel the visa and a good legal representative (like our office) may save Jessie from being deported but it will be a complex case to argue.
If it was discovered that Jessie didn’t sign the employment contract until after his PR was granted, then Jessie will be reasonably safe. If would be difficult for the department to prove that Jessie never had the intention to stay for two years with his sponsoring employer without Jessie doing something stupid like making an open admission of guilt.
Try and do the right thing by your sponsoring ENS employer and stay working for them for the period you agreed with them. Not because you have to, but it is the right thing to do. However if they don’t treat you well then you are free to look for other work. If they sack you then of course you are free to do as you like. In both circumstances there is never the need or obligation to inform the department.
If you are still feel uncertain about all of this we understand for the department will not necessarily tell you your rights when you call them on the phone. Give us a call and arrangement an appointment to get advice and then you can feel certain of what your legal position is in relation to your visa status.