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Employing foreign workers may be necessary to address labour shortages and skills gaps within your business. However, as an employer, you must conduct appropriate checks to ensure your workers have the right to commence employment at your business. This article will explore visa regulations and work permissions for migrant workers in Australia, covering the different types of employer-sponsored visas, associated sponsor obligations, and work limitations. It also addresses employing future candidates on temporary visas, including the types of visas that allow unrestricted work and the use of VEVO checks and due diligence as recommended immigration employment strategies.
Employer-Sponsored Visas and Sponsorship Obligations
For employer-sponsored visas 482 TSS and 494 SERS, the business must apply to be a standard business sponsor (SBS) first. Similarly, there are other types of employer-sponsored visas, such as subclasses 403 Temporary Work, 407 Training and 408 Temporary Activity, in which the business must first apply to be a temporary activities sponsor (TAS). These two sponsor statuses (SBS and TAS) will attract Sponsorship Obligations, in which the business must comply with specific obligations concerning their sponsored workers and the Department of Home Affairs (DOHA). There may be serious consequences for breaching these obligations.
Accordingly, you must determine whether your business structure meets the definition of ‘associated entity’ and, if your business breaches any sponsor obligations, how to navigate this situation. An immigration lawyer can assist you with this.
Suppose you would like your migrant employees to work for a different business entity. In that case, it must have either SBS or TAS status and lodge a new nomination application to transfer the sponsored worker’s visa. This rule has a few exceptions, such as if the other business meets the definition of ‘associated entity’ as per section 50AAA of the Corporations Act 2001 (Cth).
Sponsoring overseas workers as an Australian business is complicated. Let us simplify it for you with this free employer guide.
Employing Future Candidates on Temporary Visas
Australian businesses can generally employ the following temporary visa holders without risks or attracting sponsorship obligations. For the following scenarios, the business does not need to be an eligible sponsor via SBS or TAS status.
Working Holiday Visas (WHV) (417/462)
Depending on the working holiday visa and nationality, some visa holders will be only allowed to work for six months for the business. After this period, the workers may need to cease employment. The business can determine work limitations by conducting a visa entitlement verification online (VEVO) check (see below for more information).
Student Visas (500)
Students are allowed to work 40 hours per fortnight, which generally means 20 hours per week. However, there is currently a temporary relaxation of working limitations for student visa holders. Consequently, they can work on a full-time basis until 30 June 2023. After this date, student visa holders will be restricted to working 48 hours per fortnight.
However, depending on the course of study, some students may be able to work full-time. For example, this may include PhD students.
Bridging Visas (BVA, BVB, BVC, BVE)
There are many different types of bridging visas.
Bridging visa working rules vary and may allow the visa holder to:
- work subject to limitations; or
- not engage in any type of employment.
The business can determine work limitations by conducting a VEVO check.
Graduate Visas (485/476)
Holders of these visas are allowed to work without any restrictions.
New Zealand Family Relationship Visa (461)
Holders of these visas are allowed to work without any restrictions.
New Zealand Citizens on a Special Category Visa (444)
Holders of this visa are allowed to work without any restrictions.
Secondary Applicants of Student and Employer-Sponsored Visas (500/482/494/407)
Secondary applicant visa holders (SAVH) are the spouses or partners of primary visa holders. Generally speaking, SAVHs have the same type of work conditions as the primary visa holder. For example, if the primary visa holder is a student, the SAVH will only be able to work 48 hours per fortnight unless the primary visa holder is enrolled in a PhD course. The business can determine work limitations by conducting a VEVO check.
Temporary Partner Visas (309/820)
Holders of these visas are allowed to work and, generally speaking, have no work limitations. Once these visa holders obtain permanent partner visas (100/801), they are considered Australian Permanent Residents.Continue reading this article below the form
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Our Recommendation: VEVO Checks & Due Diligence
We recommend that you actively ask prospective candidates if they are:
- Australian citizens;
- permanent residents (PR); or
- temporary visa holders.
Suppose candidates claim to be PR or temporary visa holders. In that case, you should ask for which specific PR or temporary visa subclass they hold and any working conditions or limitations imposed on their visas. We also recommend that you request a copy of their main passport page and a copy of their visa grant letter.
These documents and information allow you to conduct a VEVO check using their full name, passport number and date of birth. You may wish to perform a similar check on Australian citizens by citing an Australian passport or similar ID. VEVO checks cannot be performed on Australian citizens.
VEVO is a free online system. The business can register to conduct VEVO checks as an organisation. The VEVO check will then inform you what visa subclass they hold and what visa conditions are imposed, if any. Thus, the business can cross-check this information with the candidate supplied. This would be extremely important for Working Holiday visas and bridging visa holders, as the working conditions tend to vary from applicant to applicant.
The Fair Work Ombudsman enforces workplace laws, which can result in financial penalties against businesses, directors and accessories who do not follow the law. Individuals can be penalised up to $126,000 and companies up to $630,000 per serious contravention. It is the business’s responsibility to ensure that it does not hire illegal workers. Employers face civil and even criminal penalties of up to $315,000 and 5 years imprisonment per illegal worker.
Employer-sponsored visas (482, 494 & 407) have work limitations and sponsorship obligations that businesses must comply with. However, businesses can generally employ temporary visa holders like Working Holiday, Students, Bridging, New Zealand Family Relationship and Special Category Visa holders without risks or attracting Sponsor Obligations. It is crucial to conduct due diligence by asking prospective candidates about their visa status and conducting VEVO checks to ensure that businesses comply with visa regulations and work permissions.
If you need help employing individuals on visas, our experienced immigration lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
We recommend an honest and proactive approach. However, you must seek legal advice to understand your business’s rights and obligations.
If, for example, a sponsored employee absconded or resigned, the business should notify the Department within 28 days. It may do so by either emailing the Department or by lodging a new Notification of sponsor changes form in the IMMI account. A full list of instructions is available via this official link.
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