457 Visas: Employer and employee obligations
The
highly publicised troubles of the 7-Eleven group highlights the need for all
employers to be aware of their obligations to their employees, particularly if
they are employing foreign workers. The current media attention centres around
allegations that foreign workers were
paid at rates lower than should be paid for the type of work being done.
All
employers are subject to scrutiny pursuant to the provisions of the Fair Work Act;
in addition, employers of persons on 457 visas are subject to monitoring by the
Department of Immigration and Border Protection.
From
1 June 2013, employers engaging or contracting legal workers face significant
civil penalties up to $76,500 if it can be established that the employer:
- has allowed the person to work or does not have a visa,
- has allowed a person to work without a proper work condition,
- has referred a person to work who falls under the above categories, or, has participated in an arrangement where an illegal worker is allowed to work.
Employers
who are investigated in respect of any of the above breaches must be able to
prove that reasonable steps have been taken to verify that an employee or
contractor had appropriate permission to work.
Two
of the most common ways for foreign workers to be employed in a business are
first, via the 457 program or second, as students who hold work rights.
Available
statistics indicate that as at the end of June 2012 the number of businesses
employing 457 Visa holders exceeded 22,000. This represented in excess of
160,000 primary and secondary visa holders, all with work rights.
Businesses
which employ 457 Visa holders are approved by the Department of Immigration as
sponsors, and part of the sponsorship process involves the sponsor agreeing to
assume a number of obligations which may be subject to monitoring by the
Department. Included in these obligations is an undertaking to ensure that the
employed worker is to be remunerated appropriately for the role.
It
is not necessary to have a sponsorship in place in order to employ students, and
therefore no formal monitoring is involved. Nevertheless, businesses employing
students are obliged to comply with the law and must verify that the students
have proper work permissions. Normally students are permitted to work up to 20
hours a week while courses are in session and full-time during vacation
periods.
Nevett
Ford lawyers are specialised in all areas of migration and can advise you on
your obligations in relation to employment of foreign workers, as well as
providing migration advice to those wishing to apply for an Australian visa.
