There are many immigration rules that apply when recruiting and employing temporary visa holders. Employers should be aware of these rules and understand how they apply to their circumstances.
Principal sources of law
The main laws governing the immigration requirements for employing temporary foreign workers in Australia are:
Main regulatory bodies
The key government agencies which manage immigration law are:
A work visa (known as a ‘work permit’ in some countries) is the basic unit of the immigration system – it allows ‘foreign nationals’ (people who are not Australian citizens or ‘permanent residents’) to work in Australia as a temporary foreign worker.
Australia operates a universal visa system. This means that all non-citizens must obtain a visa in order to enter Australia. Home Affairs prohibits a foreign national from entering Australia to ‘work’ without prior authorization. If the individual intends to work in Australia, they must obtain a relevant work visa, typically a Temporary Skill Shortage Subclass 482 visa, or for periods of up to 6 months, a Sc 400 Short Stay Work visa.
When it comes to determining whether a foreign national intends to enter Australia for the purpose of ‘working’ – and therefore requires a work permit – Australian immigration law focuses on the intended activities of the individual. That means that the way in which the visa applicant or potential employer categorizes the arrangement is immaterial. Further, the definition of ‘work’ in Australian immigration law is broad – it defines ‘work’ as any activity for which wages would normally be paid or commissions are earned. So, for example, a foreign national may claim they are ‘volunteering’ for an Australian organisation on the basis that they will not paid for their activities. However, Home Affairs’ assessment will not be made on the basis that they are not being paid but rather the nature of the activities being undertaken.
In Australia it is a requirement that most Sc 482 visa applications require Labour Market Testing. While some exemptions exist on the basis of intra-company transfers and international trade obligations, the vast majority of applications must be made after the sponsoring employer has completed a minimum of 28 days of advertising for the position across at least 3 platforms, including the government’s ‘JobOutlook’ site. The requirements for Labour Market Testing are highly technical and missing even one of the approximately ten elements can result in the application being refused!
It is good practice for all employers to use properly drafted employment contracts when employing temporary visa holders. Due diligence includes reviewing the employment contract to ensure its terms comply with the requirements of the visa application and are consistent with the online job posting, including the following key terms:
Once a temporary visa holder is in Australia and engaged in employment, it is critical that the employer continue to monitor the employee’s visa to ensure that there are no changes which may result in visa cancellation or other action. Areas of concern include:
Employers are required to keep records on temporary foreign workers for seven years. Home Affairs has the right to conduct random audits on these records. Employers must be prepared for audits and temporary visa holders may be questioned by immigration or Fair Work inspectors to confirm they are performing the work set out in the approved visa.
Employers should maintain an up-to-date, well-organised and easily accessible file for each worker. Each file should contain a copy of the visa holder’s visa approval, employment contract, labour market testing, job description, timesheets, remuneration history, and locations of employment.
Alternatively, organisations can purchase a product that makes meeting the compliance requirements simple. Complize is a SaaS platform designed to enable organisations to manage immigration compliance, increase organisational knowledge and reduce risk. Content is developed and designed by immigration law firm, Roam Migration Law, and the IT systems are managed by Complize, an Australian IT firm.
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