Understanding migrant workers – vital information for employers
12 Aug 2015
- Employment Law
Australia benefits from a skilled and passionate workforce. With a pool of talented Australian citizens and permanent residents available, the jobs market is vibrant and envied around the world. Nevertheless, there are often occasions when employers look offshore for suitable employees; either to meet a specific skills need or to help grow an already successful business.
Employers looking to employ overseas workers or temporary residents already in Australia, must be aware of a number of rules and obligations imposed by the Department of Immigration and Border Protection (DIBP) that operate in conjunction with the normal Australian employment obligations. The DIBP “Employer Hub” is a good place to start.
An employer’s obligations to overseas workers begin when considering hiring someone who is not an Australian citizen or permanent resident. Any job applicant who is a temporary resident must have work rights. Employers cannot simply assume nor take the applicant’s word for it, because it can be a criminal offence to employ a person who is prohibited from working.
So as a first step when hiring an employee, employers must check that employee’s visa status. Employers are entitled to search on the DIBP Visa Entitlement Verification Online (VEVO) search functionality to be sure that there are no work limitations. Ideally you want to see that there are “nil” conditions on the visa which would prohibit the employee from working. In this sense, it is expressed as a negative; you are unlikely to see a specific “permission” to work but, instead, need to see no conditions preventing work.
If an onshore applicant does not have work rights or a business considers hiring an employee from overseas, then it is possible to assist that applicant in applying for a visa which entitles them to work. These can include a range of temporary and permanent employer sponsored visas. For more information about visa options, see our Migration page.
As stated above, the employment rules covering overseas workers include the standard Fair Work Commission provisions and, additionally, a number of DIBP-enforced obligations known as Sponsor Obligations. These will vary depending on the specific visa which an employee holds, but can include:
- Paying a specified salary;
- Ensuring agreed work hours and duties are met;
- Maintaining a commitment to training Australian citizen and permanent resident employees; and
- Meeting any costs involved with the employee’s (and, often, their family’s) removal or departure from Australia at the end of their stay.
At Snedden Hall & Gallop we have, in recent months, seen an increase in actions by DIBP seeking to enforce sponsor obligations on employers and punish employers who fail to meet their obligations. This is in part due to a number of high profile media reports of employers taking advantage of employees. While most employers are doing their best to meet obligations, even an innocent mistake can result in action (including fines, sponsorship bars and even prosecution).
Here are some simple tips for employers who are employing overseas applicants:
- Always check VEVO before employing a temporary resident;
- Make sure you have a clear and detailed employment contract with all employees;
- Keep up-to-date payroll and other records;
- Ensure you meet the salary, working hours and duties specified in the visa application (if any);
- Maintain a vigorous programme for training Australian citizen and permanent resident employees; and
- Know who is covered by your sponsorship obligations (ie, are you sponsoring an employee or an employee and their family?).
Snedden Hall & Gallop has an experienced migration team and a highly-skilled employment law team; both of whom can assist employers navigate the tricky, but potentially bountiful, maze that is employing overseas workers. Please contact our Migration team.