Employing Overseas Workers
In sponsoring employees from overseas it is vitally important that employers understand their obligations under the sponsorship agreement and ensure that they are compliant with migration legislation.
There are a significant number of different visa options under which overseas citizens may enter Australia and seek work. It is crucial that in any case where businesses are approached by a non-Australian citizen for employment opportunities that the prospective employer seeks advice on the specific type of visa held by that person, and the work rights, if any, under that visa.
Penalties for allowing illegal workers to work in Australia
On August 2007 it became a criminal offence under the Migration Act 1958 (Cth) for a person to knowingly or recklessly:
- Allow an illegal worker to work; or
- Refer an illegal worker for work with another business.
These amendments to migration legislation provide that an illegal worker is considered to be not just a worker who is in Australia illegally, but also a person who is in Australia legally but working outside the constraints of their visa.
The current penalty for knowingly or recklessly allowing an illegal worker to work, or referring an illegal worker for work with another business is imprisonment for up to two years.
It is possible, and highly recommended, to check a prospective employee's work entitlements with the Department of Immigration and Citizenship (DIAC) prior to employment. The DIAC Visa Entitlement Verification service is available both online (VEVO) and as a faxback service.
In order to verify work entitlements it will be necessary to sight the prospective employee's passport and to seek the prospective employee's consent to contact DIAC about their work rights. Members seeking to utilise either VEVO or the Visa Entitlement Verification Faxback service can contact ARA Employee Relations or the DIAC Employer's Immigration Hotline on 1800 505 550. Further information is available on the DIAC website at www.immi.gov.au
Undertaking to abide by workplace relations laws
All instances of employment of overseas workers carry an employer obligation to comply with laws relating to workplace relations that are applicable to the employee, and any workplace agreement that the employee may enter into with the employer to the extent that that agreement is consistent with Australian workplace relations law.
Aspects of workplace relations law are the industrial instruments that set down general terms and conditions of employment for any employee. The same industrial instruments that apply to Australian employees will also apply to overseas workers performing a particular class of work. The instrument that applies may be (but is not limited to):
- A pre-reform or transitional federal award;
- A State award;
- A Notional Agreement Preserving State Awards (NAPSA);
- A State enterprise bargaining agreement;
- A federal workplace agreement; or
- A pre-reform federal agreement.
An employee that is ‘award free' will have the protection of basic entitlements under the Australian Fair Pay and Conditions Standard if in the federal system, or the equivalent protection under applicable State legislation. Laws of termination, entitlements to public holidays and other minimum entitlements will also apply to overseas workers as they do to Australian workers.
All employees will also have the protection of, and obligations under, equal opportunity, anti-discrimination and occupational health and safety legislation.
Overseas worker visa options-skilled worker temporary visa
The Temporary Business (Long Stay) visa (sub-class 457) enables workers recruited from overseas to enter Australia to work for periods of between three months and four years.
The sub-class 457 visa is intended to allow Australian businesses who have been unable to fill skilled positions from the Australian labour market to sponsor overseas employees in these positions.
A business seeking to recruit an overseas worker will be required to apply for Standard Business Sponsorship from DIAC. The sponsorship will be valid for a period of two years where approved.
As part of this application the employer must undertake to abide by a number of undertakings. These will include, but are not limited to:
- Compliance with immigration laws;
- Compliance with workplace relations laws;
- Co-operation with DIAC;
- Responsibility for costs for a sponsored employee; and
- Compliance with the terms of the nominated position (that is, compliance with specific requirements set down under migration law for employers seeking to nominate themselves to sponsor a skilled overseas worker).
The obligations of the employer under the sponsorship undertakings will continue until the earlier of:
- The expiration of 28 days following notification to DIAC that the employee is no longer employed by the employer;
- The employee leaving Australia following the cessation of their sub-class visa; or
- The employee being granted a substantive visa following the cessation of their sub-class 457 visa.
Interaction between the undertaking to abide by workplace relations laws and the Minimum Salary Level
Migration legislation sets down that an employee on a sub-class 457 visa must be paid at least a designated Minimum Salary Level set down under migration legislation in relation to the position held by that employee. This Minimum Salary Level will be periodically reviewed and gazetted by the Minister for Immigration and Citizenship.
The obligation to pay an employee on a sub-class 457 visa at least the Minimum Salary Level operates concurrently with the obligation to abide by workplace relations laws.
The effect of this will be that for any given period, an employee on a sub-class 457 visa will need to be paid the greater of either the Minimum Salary Level or what the employee would have been paid under their applicable industrial instrument. In determining what the employee is entitled to be paid under their applicable industrial instrument consideration must be given to any applicable penalties, loadings and allowances.
Failure to pay the overseas worker at least the Minimum Salary Level will lead to a breach of immigration laws, and a failure to pay the employee at least the minimum rates under the applicable industrial instrument will conversely lead to a breach of workplace relations laws.
The APrint case
A highly publicised instance of ‘what-not-to-do' in sponsoring employees on sub-class 457 visas was in the recent case of Hortle v APrint[1].
In this case an employer sponsored four workers from China who each held sub-class 457 visas. The Workplace Ombudsman pursued the employer for a number of alleged breaches of the applicable award and the Workplace Relations Act 1996 (Cth). Following investigation of the alleged breaches the Workplace Ombudsman found, and recovered on behalf of the employees, underpayments totalling $93,667.66.
A Federal Magistrates Court application was brought by the Workplace Ombudsman to determine the imposition of penalties against the employer in relation to the alleged breaches of workplace relations laws.
The corporate entity of APrint went into liquidation shortly before the matter was decided. The second respondent in the application was a director of the company who was found to be directly involved in each of the alleged breaches. For the first time in such a matter, the Federal Magistrates Court used the power afforded to it by the Workplace Relations Act 1996 (Cth) to impose penalties against an individual despite a company being in contravention of the legislation.
In making its decision the Federal Magistrates Court imposed penalties of $9,240.00 against the former company director personally.
Hortle v APrint should serve as an important warning to all businesses considering employing overseas workers on sub-class 457 visas to ensure that they are aware of, and abide by, all workplace relations laws.
Overseas worker visa options-occupational trainee visa
The occupational trainee visa (sub-class 442) allows overseas workers to complete structured and supervised workplace-based training programs on a temporary basis.
This visa is intended to allow overseas workers to improve their work skills through training with an Australian employer. An occupational training program must be devised which:
- Is closely related to the trainee's occupation, field of study or area of expertise;
- Enhances the trainee's current skill level;
- Involves at least 70% of workplace-based training; and
- Does not adversely impact upon occupational opportunities for Australian citizens and permanent residents.
A business which would like to become an ‘Australian Nominating Organisation' and take on overseas workers as occupational trainees has a number of obligations. These obligations include, but are not limited to:
- Provision of a structured and supervised training program (as referred to above);
- Availability of suitable staff to provide training;
- Compliance with nomination obligations; and
- Compliance with workplace relations laws.
An occupational trainee visa may be valid for up to two years, subject to the length of the training program. It is possible to seek extensions or a second occupational trainee visa depending upon the circumstances.
Overseas worker visa options-working holiday visa
The working holiday visa (sub-class 417) and the work and holiday visa (sub-class 462) enable overseas visitors to combine a holiday with work in order to supplement their funds.
The sub-class 417 and 462 visas allow travellers to enter into Australia for a prescribed period of time and undertake limited work and study activities. Whether the worker is eligible for a sub-class 417 or 467 will depend upon their country of origin (as well as other procedural requirements).
An overseas worker on a sub-class 417 or 462 visa may not be employed by any single employer for more than six months with the ability to extend only available in ‘extraordinary and unforeseeable' circumstances.
There are no specific sponsorship or nomination obligations for employers engaging overseas workers who hold sub-class 417 or 462 visas. There is, however, the continuing obligation not to engage the overseas worker outside the limitations of their visa, as well as necessary compliance with workplace relations laws.
It is important to note that employers must make superannuation contributions for employees undertaking temporary work under a sub-class 417 or 462 visa. Upon leaving Australia the worker will become entitled to access these funds.
Other overseas worker visa options
There is a multitude of different visa types which enable overseas residents to work in Australia beyond those addressed here.
A common theme across all types of employment of overseas workers is the importance of seeking advice on that worker's rights and ensuring that the employee is working within any constraints attached to their visa. Members seeking information or advice on different types of visas and visa rights are encouraged to contact the Department of Immigration and Citizenship by phoning 1800 505 550, or visiting www.immi.gov.au
All workers, from overseas and within Australia, have the protection of Australian workplace relations law and the minimum entitlements awarded under these laws. Members who are uncertain about minimum entitlements applicable to any type of employee should contact ARA Employee Relations.
Disclaimer
This article is published as an information service without assuming a duty of care. It contains general information only, and as such it is recommended that detailed advice be sought before acting in any particular matter.
[1] Inspector Robert John Hortle v APrint (Aust) Pty Ltd & Anor [2007] FMCA 1547
