Employment Law

Do overseas employees have any workplace rights and protections?

Published in: August 2016

Just like local workers, visa holders employed in Australia also enjoy a number of rights and protections, irrespective if they are holders of a sponsored or non-sponsored visa.

What basic rights and protections are available to overseas employees?

First, employers cannot create contracts or agreements taking away workplace rights and protections that are enshrined in legislation. Therefore, pay rates and workplace conditions still need to conform to Australian law.  In addition to pay and work conditions, overseas employees also enjoy the same workplace health and safety protections as well.

Employers do not have the power to cancel visas

Visa holders should be aware that only the Department of Immigration and Border Protection (the Department) is able to cancel, grant or refuse visas, and not employers. It should also be noted that visa holders also have the opportunity to present reasons as to why their visa should not be cancelled to the appropriate decision-maker.

What obligations do employers owe visa holders?

For holders of a Temporary Work (Skilled) (subclass 457) visa, there are a number of employer obligations that are owed to the holder, and include the following:

  • offer comparable terms and conditions of employment that is provided or would be provided to an Australian undertaking the corresponding work at the same workplace;
  • that the visa holder is only working in their nominated occupation, program or activity;
  •  the employer must not recover costs either to the visa holder or another person;
  • upon written request, pay reasonable and necessary travel costs for the visa holder or family members in order to leave Australia;
  • inform the Department in writing of certain events such as changes to address or contact details of sponsors, if the sponsorship has come to an end, or if the duties of the visa holder has changed;
  • if inspectors from the Department or the Fair Work Ombudsman undertake any investigations, the employer must fully cooperate with the investigation and comply with any obligations;
  • hold records demonstrating the employer is in compliance with their sponsorship obligations and to provide any records and information upon request of the Department.

There are a number of Commonwealth mechanisms that can be used for reporting subclass 457 visa breaches.

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by email info@eddyneumann.com.au for clear and expert advice.
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