Employing an overseas worker in Australia

Australia has a skills shortage of several trades and occupations, making it appealing for employers to look abroad when recruiting. However, before doing hiring an employee from another country, it is important employers follow the right steps and legal protocols before hiring non-citizens workers, or they could end up facing some hefty fines.

Employer obligations

Before recruiting someone to work for a business who is not an Australian citizen, an employer must look into the details about whether the potential employee is legally entitled to work in Australia. The simple fact is that many visas granted by the Department of Home Affairs (formerly the Department of Immigration and Border Protection) have restrictions on what work can be and for how long. For example:

• A student visa holder can only work for 20 hours per week;
• A visitor visa holder cannot work; and
• A working holiday visa holder can only work for generally up to six months with each employer.

This is enforceable through an Australian legislation, putting the onus on the employer who has ‘knowingly or recklessly’ employed foreign workers who do not have the correct working visa in Australia.

This is why it is important employers are mindful of the various types of visas that are available and the associated working rights with those visas.

Different visa types

Key steps for employers to consider before employing a foreign employee

All businesses should seek get professional legal advice about the best way to hire or sponsor foreign employees due to Australia’s strict obligations when it comes to immigration law. This includes specifics around temporary visas, special rules in relation to unfair dismissal and taxation that may also apply to foreign workers. Some key steps include:

• obtain the required rights to hire foreigners
• nominate the appropriate position, noting that only gazetted occupations may be approved
• apply for the relevant visa
• require evidence from the workers that identifies them and states whether they had the relevant rights to work in the business
• scrutinise any evidence that was provided rigorously
• maintain meticulous records in respect of each employee’s work rights
• undertake a search of the Department of Immigration and Border Protection’s Visa Entitlement Verification Online (VEVO) system using the individual’s passport details
• periodically check their worker’s rights where they are aware or ought to be aware that a worker’s rights may have expired during the period of their engagement.
• require evidence from the workers that identifies them and states whether they had the relevant rights to work in the business
• meet the workers’ minimum pay and condition requirements outlined in the National Employment Standards (NES). These include:
  • Maximum weekly hours of work
  • Requests for flexible working arrangements
  • Parental leave and related entitlements
  • Annual leave
  • Personal/carer’s leave, compassionate leave and family and domestic violence leave
  • Community service leave
  • Long service leave
  • Public holidays
  • Notice of termination and redundancy pay
  • Provision of a Fair Work Information Statement

What are the penalties for employing an illegal worker?

It’s not enough for an employer to claim they didn’t know or was misled into believing their employee was lawfully allowed to work in Australia.  The directors may be held personally liable and must take reasonable steps to ensure the visa requirements are met. In instances where an employer can provide evidence that it has taken reasonable steps at reasonable times to determine if the worker was allowed to work, there is unlikely to be any penalty imposed – they could simply be issued with a formal or informal warning.

A breach of the legislation can be significant; a company may be fined up to $76,500 for a single offence and a foreigner found to be breaking the rules of their visa could see them fined $15,300 or imprisoned for up to 2 years.

More information

It’s important you do the right thing when employing foreigners to work in Australia. If you are not sure, get in touch with a migration lawyer. Our legal team have extensive expertise all aspects of migration law, from visa applications, through to challenging the department’s decisions. Get in touch today to find out more.