Employer obligations when hiring overseas workers amid the reopening of Australia’s international borders

Australia’s national cabinet has maintained that Australia will continue with its plans to reopen its borders to international travellers, despite the recent discovery of the new omicron COVID-19 variant.

An increase in arrivals of international workers looking to fill critical skill vacancies is expected, in the hopes of aiding Australia’s ongoing recovery from the impact of COVID-19.

With much confusion surrounding differing requirements between jurisdictions in today’s COVID-19 landscape, it is a timely reminder for employers to ensure they are across their legal obligations if seeking to employ workers from outside Australia.

Employer obligations

Employers must be mindful of their obligations when it comes to hiring people to work in Australia who are not Australian citizens, including knowledge of applicable visas and any attached requirements and restrictions.

Importantly, all workers in Australia have rights and protections arising under Australian workplace laws whether they are an Australian citizen or otherwise.

This means that employers seeking to employ overseas workers must, without limitation:

• provide their employees with payslips, superannuation and taxation documents;
• provide a safe and healthy work environment;
• provide all employees with at least minimum conditions and entitlements arising under the National Employment Standards (NES);
• ensure adequate shift arrangements and pay rates are applied; and
• ensure all workplace laws, including but not limited to those stipulated in the Fair Work Act 2009 (Cth) (FW Act), are adhered to including with respect to dismissal.

In the interests of ensuring Australian workers are not displaced from suitable jobs in favour of overseas applicants, the following obligations also exist:

• a limit on eligible occupations for employer sponsorship to those only in demand in the Australian labour market;
• a requirement for employers to pay a non-refundable contribution to the Skilling Australians Fund;
• a requirement for overseas workers to hold Australian registration, licences and certificates as applicable; and
• a requirement with respect to skills, English language, age and work experience for overseas workers.

The general obligations outlined above are in addition to specific requirements that are attached to a particular visa.

For example, employers who sponsor a worker under the Temporary Skill Shortage visa (subclass 482) have particular obligations specified in regulation 2.79 of the Migration Regulations 1994 (Cth) (Migration Regulations) which requires a sponsor to ensure equivalent terms and conditions of employment for those employees on a 482 visa.

Penalties for breach

An employer who fails to meet their obligations with respect to the employment of an individual on a working visa may face a variety of sanctions.

With respect to workers on sponsored visas, such as the 482 visa, section 140K of the Migration Act 1958 (Cth) (Migration Act) prescribes the applicable sanctions for an employer failing to satisfy their sponsorship obligations, which may include:

• being barred from making future applications for approval as a work sponsor or family sponsor;
• cancellation of the employer’s approval as a work sponsor or family sponsor;
• being subject to a civil penalty order;
• being required to give an undertaking under section 114 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth);
• being issued with an infringement notice under regulations as an alternative to proceedings for a civil penalty order; and
• being required to give a security under section 269 of the Migration Act.

In addition, the Minister of Homes Affairs may publish information, including personal information, prescribed by the regulations with respect to an employer’s failure to satisfy an applicable sponsorship obligation. No civil liability arises from action taken by the Minister in good faith in publishing such information.

Employers must also observe protections afforded to workers under applicable workplace health and safety legislation and the FW Act. For example, protection is afforded to workers against unlawful workplace discrimination, unfair dismissal, undue influence or pressure in negotiating individual arrangements as well as protection of workplace rights set out in the NES.

A breach of the FW Act will usually involve a breach of a civil remedy provision. The maximum penalty for a contravention by an individual is currently $13,320 per contravention or $66,600 for a corporation. If it is a ‘serious contravention’, such as breach of the NES or a modern award, an individual may be fined up to $133,200 or $666,000 for a corporation.

Where a breach is considered a criminal offence, an employer may face significant fines or even imprisonment.

The above sanctions are illustrative of Australia’s commitment to a robust regulatory and compliance regime when it comes to overseas workers.

Given the significance of the sanctions an employer may face, it is imperative that employers are equipped with the correct knowledge and processes to ensure they meet their obligations to the standard required.

Conclusion

Gadens has extensive experience in advising on migration law and assisting employers to manage the process of obtaining visas for skilled workers from outside of Australia, as well as providing expert legal advice on meeting employer obligations.

It is important to note that there are a variety of visas which may be suitable depending on the circumstances, with differing employer obligations attached. Gadens is able to provide tailored advice based on the particular circumstances.

This article does not constitute legal or migration advice of any kind and must not be relied upon as any such advice.

Gadens can assist employers by advising them on their obligations and preparing and lodging visa applications and managing the entire process. To see how Gadens may be able to assist, please contact Jonathon Hadley.

For details of all our COVID-19 tips and updates, visit the Gadens COVID-19 Hub.

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Authored by: 

Jonathon Hadley, Partner