Outsourcing is often a great way of cutting costs for SMEs. My Business asks a couple of legal experts about businesses' rights and obligations when employing offshore workers.
There are almost 2 million temporary visa holders in Australia, with full, limited or no work rights. Students, for example, are normally only entitled to work 40 hours a fortnight.
Working holiday visa holders cannot work for a single employer for more than six months, and 457 visa holders can only work for their sponsoring employer, in the occupation they have been nominated in.
Civil and criminal penalties may apply if a business allows someone to work in breach of their work restrictions, and civil penalties may be imposed even if the breach was unintentional.
Penalties may also apply to companies and their directors and officers, in cases where they are considered reckless or negligent.
Perhaps the most onerous rights and obligations apply to 457 visa holders. While the benefits of the program for Australian businesses are significant, the administration required can be daunting.
However, businesses shouldn’t let this prevent them from going ahead with this approach, as long as they have a strategy in place to avoid any pitfalls.
The most common obligations include:
- Meeting the training benchmark of 1 per cent of total payroll spent on training Australians;
- Ensuring sponsored employees work in the nominated occupation;
- Notifying the Department of Immigration and Border Protection if any sponsored employees cease employment; and
- Paying return airfares upon cessation, if requested in writing.
The amount of documentation required can be significant, so good record-keeping systems for each obligation can ensure businesses are able to easily respond to any requests for information or workplace audits by Immigration.
Requests for information will normally target:
- Salary and benefit payments to 457 holders;
- Notifications to Immigration;
- Calculations of market salary; and
- Job position records.
Inspections and audits
Immigration and Fair Work inspectors have broad powers to inspect workplaces and demand records, and businesses are obliged to co-operate with them.
If Immigration shows up unannounced, a few simple rules can assist:
- Know who you are dealing with. Inspectors are required to produce ID, and should be happy to do so if requested;
- Be co-operative. If requests can’t be complied with immediately, make arrangements for more time and contact your migration agent for professional assistance;
- Ensure all communication from the business comes through a single authorised person; and
- Immigration inspectors are entitled to speak to employees, but make sure that employees are not speaking on behalf of the business unless they are authorised.
The obligations relating to training benchmarks are, in our experience, not well recorded.
As they are based on the anniversary date of the business sponsorship, businesses may need to monitor training expenditure across periods that do not match other accounting periods, over a period of years.
Careful record-keeping is essential
Not all training expenses count towards the benchmark.
Failing to continue to meet training benchmarks may mean that a business won’t qualify for a further sponsorship, and employees who are relying on sponsorship for continued employment or gaining permanent residency may be deeply disappointed.
As a general rule, all businesses should know the residency status of any worker, to ensure they have the appropriate work rights.
There is only one safe way to do this, and that is to check the work rights of every employee before they start work.
Immigration publishes an online database called VEVO – Visa Entitlement Verification Online.
Employers should have systems in place to use this database to check work rights and the citizenship of all new starters, and schedule follow-up checks when appropriate.
James Henderson (pictured left) is a managing partner at HLB Mann Judd and Helen Duncan (pictured right) is the director of AMVL Migrations.
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