The Fair Work Ombudsman has been busy lately, prosecuting a number of offences including many relating to overseas nationals in Australia on temporary visas such as Student visas, Working Holiday visas or 457 visas.
Whatever visa a person holds in Australia, the national and state employment laws will apply to that person.
Not all employers, however, abide by the rules and ‘cash payments’ and ‘off the books’ employment are not uncommon, especially where temporary visa holders are concerned. Not only are such employers breaking the law by not declaring the wages and paying tax on them (or workers comp, et c.), but also the employee is also missing out on usual employment rights such as annual, sick, carer’s and other leave provisions.
Visa holders, however, are beginning to assert their rights, dobbing in employers who refuse to pay them appropriate award wages, for overtime or for accrued annual leave or superannuation.
Employers can expect large penalties like the $70 000 bill handed to an Adelaide Chinese restaurant as a penalty for underpaying over thirty employees. In addition, the company directors have been ordered to undertake training on workplace laws and report to the Fair Work Ombudsman for the next three years.
Fair Work Ombudsman Natalie James says ‘the … matter should serve as a timely reminder to all employers of the importance of checking that they are paying their employees under the correct industrial instrument.’
In addition to workplace legislation, there are additional work restrictions that apply under migration legislation depending on the visa that the person holds. For example, Tourist visa holders are not permitted to work. Student visa holders are permitted to work 40 hours per fortnight when the course is in session. Working Holiday makers are allowed to work for a maximum of six months for any one employer and 457 visa holders must only work in the nominated position for the sponsoring organisation.
Where employers breach migration legislation by employing visa holders in contravention of their visa conditions, the company and the directors may receive fines per infringement of up to $10 200 and civil penalties for directors of up to $51 000.
Running a business is tough, however the workplace laws are there to provide a fair system in which employees are protected and appropriately remunerated for their work. Let’s encourage Aussie employers to give their employees, regardless of their visa status, a ‘Fair Go’!
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