Visa Holders and Migrant Workers

Australia's diverse and dynamic workforce includes a significant number of visitors and migrants, each with varying work rights depending on their visa status. As an employer, understanding these distinctions is crucial to ensure legal compliance and effective workforce management.

Who can work in Australia?

• Australian Citizens and Permanent Residents: These individuals have unrestricted rights to work in Australia, providing a stable and continuous workforce for employers.
• New Zealand Citizens: Typically holding Special Category visas, New Zealand citizens enjoy similar work rights to Australian citizens, though certain restrictions may apply in federal government roles.
• Visa Holders with Work Permissions: Various visa categories allow holders to work in Australia. These include student visas with specific work hour limits, skilled work visas tied to particular occupations, and working holiday visas with employer duration restrictions.
• Skilled Migrant Workers: Employers can either sponsor skilled migrants already in Australia on work visas or sponsor overseas workers to fill skill gaps. This sponsorship is subject to the visa holder meeting specific skill and occupation requirements.

Employment restrictions for visa holders

Visa holders often face certain work restrictions, which can include limitations on the number of work hours, the employer they can work for, the location, or the type of job they can undertake. For instance, international students might be restricted in the number of hours they can work per fortnight, while other visa holders may be limited to working for a single employer.

Employer responsibilities

• Legal Work Verification where employers must verify that all employees, regardless of nationality, have the right to work in Australia. This includes checking visa statuses and understanding the specific conditions attached to each visa type.
• Equal employment rights as employers should provide the same workplace rights and entitlements to overseas employees as they would to Australian workers. This includes fair pay, superannuation, and adherence to the National Employment Standards.

A guide for employers

Understanding your legal obligations

When hiring overseas employees in Australia, it is imperative for employers to ensure these individuals are legally permitted to work. This responsibility applies whether the employee is already residing in Australia or is being brought into the country specifically for employment.

Identifying work rights for non-citizens

• Permanent Residents and New Zealand Citizens. Individuals who are not Australian citizens but are living in Australia could be permanent residents or New Zealand citizens with a Special Category Visa. This visa class allows them to reside and work in Australia indefinitely.
• Temporary Visa Holders. There are several types of temporary visas, each with varying work rights. As an employer, it's crucial to understand these rights to ensure compliance with Australian immigration laws.

Verifying visa conditions

The Department of Home Affairs’ Visa Entitlement Verification Online (VEVO) system is an essential tool for employers. It allows you to check the visa status and work rights of potential employees, ensuring they possess a valid working visa for the duration of their employment with your company.

Ensuring equal treatment in the workplace

All employees in Australia, regardless of their visa status, are entitled to the same workplace rights. This includes fair pay, overtime and penalty rates, superannuation contributions, and other entitlements as outlined by the National Employment Standards (NES) and relevant modern awards or enterprise agreements. It's essential for employers to provide these entitlements to overseas workers, mirroring the rights extended to Australian workers.

Employer sponsored visas

Employer sponsored visa programs

In scenarios where Australian businesses cannot find local talent with the necessary skills and experience, sponsoring a skilled worker from overseas becomes an option. This section of the guide delves into the various employer-sponsored visa programs available in Australia, outlining the processes, obligations, and implications for businesses considering this route.

Types of employer sponsored visas

• Permanent Migration Sponsorship. Through the Employer Nomination Scheme (ENS) and the Regional Sponsored Migration Scheme (RSMS), employers can sponsor skilled workers for permanent residency. The RSMS is particularly relevant for businesses located in regional Australia.
• Temporary Skill Shortage Visa (subclass 482). This visa category allows businesses to sponsor overseas workers for up to four years. Introduced on 19 April 2017, it replaced the previous subclass 457 visa. Existing holders of the 457 visa continue under their existing conditions.
• Sponsorship of Current Visa Holders. Employers can also opt to take over the sponsorship of skilled workers who are already in Australia on other skilled work visas.
• Labour Agreements. For occupations not listed on the Skilled Occupations List, employers can enter into formal labour agreements with the Australian government. These agreements allow the employment of a number of overseas skilled workers on either a permanent or temporary basis.

Employer obligations and responsibilities

• Maintaining Compliance: Sponsoring employers have several obligations to both the sponsored employees and the Department of Home Affairs. This includes keeping business details updated and ensuring that employees hold valid visas throughout their employment.
• Post-Employment Obligations: Certain responsibilities may continue even after the employment relationship with the visa holder ends.

Impact of COVID-19 on visa sponsorship

Given the significant impact of COVID-19 on the Australian job market, the Department of Home Affairs is scrutinising the necessity of bringing migrant workers into the country. Employers sponsoring skilled workers are required to demonstrate a genuine need that cannot be met within the local labor market.

Checking workplace rights of visa holders

Understanding Employer Legal Obligations

Under the Migration Act 1958 and the Migration Regulations 1994, Australian employers are legally required to confirm that non-Australian citizens employed by them have the right to work in the country. This legal responsibility ensures the integrity of the Australian workforce and compliance with immigration laws.

Using VEVO for visa verification

• Visa Entitlement Verification Online (VEVO): VEVO is an invaluable, free-to-use online service provided by the Department of Home Affairs. It allows employers, as well as education providers and other organisations, to quickly and effectively check a non-Australian citizen's visa status and conditions.
• Purpose of VEVO: The primary function of VEVO is to ensure that employers are able to verify the work rights of potential employees, thereby adhering to legal requirements regarding the employment of non-citizens.

Documents required for visa checks

Employers can utilise several documents to verify the visa status of applicants through VEVO:

• Document for Travel to Australia (DFTTA)
• ImmiCard
• Passport
• PLO56: Now replaced by the ImmiCard.
• Refugee Travel Document (Titres de Voyage)

Limitations of VEVO

• Data Availability: VEVO is capable of providing information only on individuals whose details are available in its system. There are instances where a worker's details might not be recorded in VEVO, particularly if they migrated to Australia before 1990 without subsequent travel outside the country.
• Electronic Visa Records: In cases where a potential employee’s details are not in VEVO, employers should request the candidate to obtain an electronic visa record. This step is essential before proceeding with the hiring process to ensure compliance with immigration regulations.

Minimum rights at work in Australia

Ensuring Equality in the Workplace

In Australia, all workers are entitled to the same rights and protections, irrespective of their citizenship or visa status. This equality in the workplace is a cornerstone of Australian employment law, ensuring fair treatment and protection for all employees.

Compliance with Australian Workplace Law

• Fair Work Act 2009: The primary legislative document governing workplace rights in Australia is the Fair Work Act 2009. This act outlines the National Employment Standards (NES) and provisions for industrial instruments, which together set the minimum workplace rights and entitlements for employees.
• National Employment Standards: The NES covers key employment conditions, including hours of work, leave, and other fundamental entitlements.

Employer Obligations

Employers in Australia are required to:

• Fair Pay: Ensure all employees are paid correctly for the time they have worked. This includes adhering to the minimum wage rates, overtime, and penalty rates as stipulated under relevant awards or agreements.
• Payslips and Superannuation: Provide employees with regular payslips and manage superannuation contributions and taxation documents appropriately.
• Safe Work Environment: Maintain a workplace that meets health and safety standards, safeguarding employees from potential hazards.
• Employee Entitlements: Uphold employee entitlements including various types of leave as per the NES or applicable awards/agreements.

Pay and Conditions for Workers in Australia

Equal Workplace Rights for All

In Australia, every worker, including migrant workers and visa holders, is entitled to certain workplace rights and protections. This principle of equality ensures that all employees, regardless of their background, are treated fairly under Australian employment law.

Legislation Governing Pay Rates and Conditions

• National Employment Standards (NES): The NES, as set out in the Fair Work Act 2009, outlines the fundamental entitlements for all employees in Australia. These standards cover various aspects of employment, including hours of work, types of leave, and other key conditions.
• Industrial Instruments: Modern Awards and registered agreements, also part of the Fair Work Act, detail specific pay rates and conditions for different industries and occupations. These instruments are designed to ensure that employees receive fair compensation and work conditions based on their job role, skill level, and education.

Award and Agreement Coverage

• Award/Agreement Coverage: Employees working in industries or occupations covered by a specific award or registered agreement are entitled to minimum pay rates and conditions as stipulated in these documents. This includes provisions for overtime, penalty rates, allowances, and other work conditions.
• Non-Coverage Scenario: If a migrant worker is not covered by an award or registered agreement, the national minimum pay rate and the NES will generally apply. These standards provide a safety net to ensure all workers receive fair and legal treatment in the workplace.

Understanding Workplace Rights for Migrant Workers

Employment Compass offers support and advice in understanding the workplace rights and entitlements of migrant workers and visa holders. Employers seeking clarity on pay rates, award conditions, and compliance with the NES can contact Employment Compass for guidance and assistance through our 24/7 Employer Helpline at 1300 144 002.

Frequently asked questions

How Do I Employ An Overseas Employee?

‍To employ an overseas employee, ensure they have a valid working visa. Use the VEVO system for verification and comply with all relevant Australian employment laws.

How Do I Sponsor Someone To Work In Australia?

‍Sponsorship involves choosing the right visa program (like the ENS or subclass 482) and fulfilling all sponsorship obligations, including proving that you can't find a suitable Australian candidate for the job.

How Long Can An Employee Stay In Australia On A Working Visa?

‍The duration depends on the visa type. For instance, the Temporary Skill Shortage visa (subclass 482) allows up to 4 years, while other visas may have different time frames.

Can Visa Holders Get Centrelink?

‍Generally, temporary visa holders are not eligible for Centrelink benefits, but there are exceptions based on specific visa conditions and individual circumstances.

What Is A Foreign Migrant Worker?

‍A foreign migrant worker is someone from another country working in Australia, typically on a visa that specifies work rights, such as temporary or permanent skilled work visas.

How Many Migrant Workers Are There In Australia?

‍The number varies over time. Accurate and current statistics can be obtained from the Australian Bureau of Statistics or the Department of Home Affairs.