Working While On A Visa

Almost all visas have conditions placed on working in Australia. Those conditions may prohibit a visa-holder from working, from working in a field other than a specified field, or from working more than a specified number of hours.

Holders of permanent resident visas and New Zealand citizens who hold Special Category visas are the only visa-holders who have no work conditions.

All workers in Australia have the same basic employment rights, regardless of citizenship or visa status. An employer cannot cancel a visa; only the Department of Home Affairs has the power to grant, refuse or cancel a visa.

Work defined

Under the Migration Act 1958, work means any work, for reward or not. A person allows another person to work if the first person employs the second person under a contract of service or an arrangement. The Act specifies that this could be for the worker to provide a transport service or sexual services.

There are penalties for someone who allows or continues to allow a non-visa-holder to work for them, or who allows a visa-holder to work for them in breach of a condition of the visa. The maximum penalty is 2 years imprisonment and/or a fine of 90 penalty units ($19,980). The penalty does not apply if the person made a reasonable attempt to verify the worker’s visa status, such as by using the Visa Entitlement Verification Online (VEVO) system.

For the visa holder, the Act makes it an offence for them to breach a work condition of their visa. The maximum penalty is a fine of up to 100 penalty units ($22,000).

Exploitation

The penalty increases to 5 years imprisonment if the offence is aggravated. An aggravated offence is one in which the worker is being exploited and the employer knows of, or is reckless about, the exploitation and the fact the person is either a non-visa-holder or a visa-holder in breach of a condition of the visa.

Exploitation can include:

• threats to cancel a visa;
• underpayment of wages;
• unfair deductions;
• failure to provide entitlements such as leave or superannuation;
• withholding a passport;
• pressure to breach visa conditions;
• charging a fee or “deposit” to secure a job;
• unpaid training.

Assurance Protocol

The Department and the Fair Work Ombudsman (FWO) have an arrangement called the Assurance Protocol which supports visa-holders who have breached a condition due to workplace exploitation. Under the protocol, the department will not usually cancel a visa if the holder has breached a condition and:

• they have sought help from the FWO and are helping the agency with its inquiries;
• there is no other grounds on which to cancel the visa (such as national security, character or health);
• they have committed to abiding by visa conditions in the future.

The FWO assesses eligibility for referral to Home Affairs under the protocol.

The protocol applies to those on temporary visas with work rights, such as a student visa, working holiday maker visa, work and holiday visa, and temporary skills shortage visa.

Referrals

It is an offence for an employment agent to refer a non-visa-holder for work with a third person. The maximum penalty is 2 years imprisonment and/or a fine of 90 penalty units ($19,980). To commit the offence, the agent must know the person does not hold a visa or be reckless about whether the person does.

It is also an offence for an agent to refer a visa-holder for work with a third person in breach of a condition of the visa. The same maximum penalty applies. To commit the offence, the agent must know or be reckless about whether the person holds a visa,  or whether the visa has a work condition, or whether the person will be in breach of the work condition.

The penalty increases to 5 years imprisonment if the offence is aggravated. An aggravated offence is one in which the worker will be exploited and the agent knows or is reckless about whether the exploitation will happen.

The penalty does not apply if the agent made a reasonable attempt to verify the prospective worker’s visa status.

Visa sponsorship

It is illegal for an employer to request, receive, offer or provide a benefit in return for sponsorship of a visa or employment that requires visa sponsorship. An example is an employer deducting money from a wage in exchange for a visa.

Visa scams

Holders of a visitor visa or Electronic Travel Authority (ETA) visa are not entitled to work in Australia. Agents and individuals attempt to organise such visas and flights for people to work illegally. Tactics used include:

• job advertisements that contain only a first name and phone number;
• demands for an upfront payment for a visa;
• the organising of bogus documents and photos;
• a promise of permanent residency in Australia;
• payments in cash only;
• the employer or agent not having an ABN.

For advice or representation in any legal matter, please contact Armstrong Legal.