Employing migrant workers – what you need to know
Migrant workers constitute a significant proportion of Australia’s workforce. However, not all migrants in Australia have work rights - not all visas allow work.
If you employ migrant workers, there are a few things you need to know.
You need to ensure that your employee has the right to work in Australia
This can be done by checking the visa status of the employee yourself by checking online through the Visa Entitlement Verification Online (VEVO) system provided by the Department of Immigration and Border Protection (DIBP), or by asking an employee to produce evidence demonstrating their right to work in Australia. Look out for any specific work conditions or restrictions that might be attached to their visa.
You could also reduce your liability to exposure to a right-to-work issue with the DIBP by including a clause in your employment contract that stipulates that it is the employee’s responsibility to notify you if their visa status changes. However, even with such a clause, it’s ultimately your responsibility to ensure, as far as practicable, that an employee is lawfully working.
Different types of visas provide for different work rights
For example, student visas contain a work restriction of up to 40 hours of work per fortnight, while other types of student visas such as a temporary graduate visa (subclass 485) will have different work restrictions. Visitor visas (subclass 600) don’t allow migrants to work, but a working holiday visa (subclass 417) does. Of course, the typical “work visas” such as the temporary work (skilled) visa (subclass 457) or employer nominated scheme (ENS) visa (subclass 186) allow migrant workers to work full time, but have other restrictions and conditions attached such only working in the nominated position which has been approved by the DIBP.
If you sponsor skilled workers on subclass 457/186 visas, you have obligations as a business sponsor to makes sure that you provide your migrant workers the same working conditions as Australian workers would receive in the same position. This means ensuring that any Award obligations are met, and especially, that you are paying your workers correctly, including overtime and penalty rates.
In the wake of the 7-Eleven scandal and Yogurberry underpayment allegations, Employment Minister Michaela Cash has announced that there will be new penalties for serious contraventions in relation to underpaying workers. The new penalties will be 10 times higher than the current maximum penalties.
Earlier this year, a Fair Work Amendment (Protecting Australian Workers) Bill 2016 was proposed, with the aim of strengthening provisions of the Fair Work Act 2009 so that the Act more adequately protects vulnerable migrant workers. Although the Bill is not proceeding, it is clear from policy statements released by the Turnbull government, that efforts to protect vulnerable migrant workers will be increased, starting with a $20 million investment to establish a Migrant Workers Taskforce division within the Fair Work Ombudsman.
This may have implications for employers who currently employ, or are looking to employ, migrant workers. If you need business migration advice please contact our Employment and Business Migration Law Team in Parramatta, Penrith and Norwest: