TSS Visa Holders and Maternity Leave: Rights, Obligations and Your Pathway to PR

by Alex Foo

At this week’s IMMI updates, we discussed questions raised by a client regarding maternity leave and the Temporary Skill Shortage (TSS) subclass 482 visa. With many 482 visa holders navigating both professional and personal commitments, it’s important to understand how maternity leave fits into their visa conditions. Below, we address some common concerns.?

What Are My Maternity Leave Rights and Obligations as a 482 Visa Holder??

The subclass 482 visa has Condition 8607 attached, which imposes several obligations, including the requirement that the visa holder does not cease working for their sponsor.?

According to immigration policy, taking unpaid leave for more than 3 months may raise concerns about whether the visa holder has ceased working for their sponsor. However, policy allows for “approved” unpaid maternity leave of more than 3 months if the sponsor is obligated to provide this leave under Australian workplace laws.?

The National Employment Standards (NES) provides up to 12 months of unpaid parental leave if an employee has worked continuously for 12 months with their employer (or up to 24 months if agreed with the employer). Therefore, a 482 visa holder would not breach condition 8607 if they take maternity leave in line with NES entitlements.?

Can I Renew My 482 Visa While on Maternity Leave??

Yes, a 482 visa can generally be renewed while the visa holder is on maternity leave, as long as the leave is within NES entitlements. The visa applicant must also provide confirmation of their intention to return to work after the leave period ends.?

Can I Return to Work Part-Time After Maternity Leave??

The 482 visa program is designed to fill genuine skill shortages in the Australian labour market. As a result, 482 visa holders are generally required to work full-time for their sponsor. That said, the “full-time” requirement can be waived if it is reasonable in the circumstances, as long as the sponsor continues to meet their sponsorship obligations.?

If a 482 visa holder’s hours are reduced to part-time, the sponsor’s obligation to provide "equivalent terms and conditions of employment" might not be satisfied if the employee’s earnings fall below what was originally approved at the time of nomination.?

However, immigration policy considers the sponsor’s obligations satisfied where part-time work is connected to:?

• A graduated return from maternity leave?

• Sick leave or a work-based injury?

• Significant personal reasons?

Additionally, the following criteria must be met:?

1. The visa holder’s pro-rata hourly rate, based on the salary approved at the time of nomination, does not decrease.?

1. The visa holder’s role and duties remain consistent with those approved at the time of nomination.?

1. The arrangement is mutually agreed between the sponsor and the visa holder.?

Therefore, a 482 visa holder can return to work part-time after maternity leave, provided that these three conditions are satisfied.?

How Does Maternity Leave Affect My Pathway to Permanent Residency??

It’s important to note that any period of unpaid maternity leave will not count towards the requirement to work 2 out of 3 years in the nominated occupation for permanent residency via the Employer-Sponsored Subclass 186 (TRT) visa.?

Navigating maternity leave as a subclass 482 visa holder can be complex, but understanding your rights under Australian workplace laws and immigration policies is essential. Visa holders and sponsors must stay informed to ensure compliance and a smooth return to work after maternity leave.?

Please feel free to reach out to us if you require any additional guidance around your maternity leave while holding an employer sponsored visa.??

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