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Australia – Employment rights guidance released for foreign workers

11 October 2013

Fact sheets outlining worker rights and protection in the workplace for foreign workers in Australia including international students, migrant workers and visa holders have been released, reports australiaforum.com.

The documents, produced by the Fair Work Ombudsman, define foreign workers as people who are not Australian citizens or permanent residents, and may include backpackers, seasonal workers, or students. In order to work in Australia, they must have a temporary long stay or permanent visa.

‘Workplace laws in Australia generally apply equally to all workers employed in Australia. Employers engaging foreign workers must ensure that they comply with both Australian workplace laws and immigration laws,’ the fact sheets point out.

It also explains the basics for foreign workers such as the fact that Australian immigration laws, including applying for and understanding the rules of valid work visas, as well as the obligation to pay market salary rates for Subclass 457 visa holders, are enforced by the Department of Immigration and Border Control (DIBP.)

Commonwealth workplace laws, including the payment of minimum rates of pay and conditions under awards and agreements, are enforced by the Fair Work Ombudsman which stipulates that minimum rights and conditions at work should be set by a legal document like an award, an agreement, or a contract of employment.

However, if an award or agreement does not apply, all employees in the national workplace relations system will receive basic minimum pay, conditions and protections under Commonwealth workplace laws.

‘If you are asked to sign any type of document agreeing to specific work conditions, make sure you read it very carefully and understand it before signing. Keep a copy for your records. You should not feel undue pressure to sign any agreement with your employer,’ is the advice given from the ombudsman.

It also points out that people should understand the different types of employment. For example, employees work for another person under a contract of employment in return for regular pay. They will usually also be subject to an award or agreement. But independent contracting is where one business works for another business. Generally, independent contractors will use their own equipment, choose the hours they work, and decide how the work is done.

‘Some employers disguise employment relationships as an independent contracting arrangement to avoid paying legal minimum rates of pay, tax, and entitlements like annual leave and sick leave. This is called sham contracting and it is against the law,’ it warns.

For foreign workers it points out that under the Migration Act, your sponsor is required to meet a number of obligations which ensure that you are provided with appropriate terms and conditions of employment. ‘These obligations require your employer to provide equivalent pay to that of any Australian employee who has the same occupation and only require you to perform duties that relate to your approved occupation,’ it says.

Also, an employer should not make a foreign worker pay for any costs relating to recruitment, or the costs associated with the business becoming or being an approved sponsor, including migration agent costs.

The factsheets state what is not allowed, especially when it comes to international students. It says that unpaid work trials are generally against the law and everyone should be paid for all hours worked, including meetings or training and time spent opening and closing the business.

It is illegal not to provide a pay slip and an employee should not be sent home from work early. ‘You should start and finish your shift at the scheduled time no matter how busy or quiet it is, unless you and your employer agree otherwise,’ it says. Receiving goods or services instead of pay is also not authorised.

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