How to employ a non-Australian

When it comes to offering a position in your business to somebody who is not an Australian citizen or permanent resident, it is very important to ensure that you satisfy all the requirements of both Fair Work (the usual employment protections also apply to non-Australians) and the migration regulations.

The first thing to do is to check that the individual has the right to work in Australia. See below for more information about that.

Secondly, it is important to keep clear records relating to all aspects of employing a non-Australian. There is a list of sponsorship obligations if you are sponsoring an employee as a Standard Business Sponsor and this is a good starting point for your records.

Next, you should ensure that the person who is being employed has the right type of Visa for your requirements. Here is a list of visas which usually come with work rights:

Student Visa: this visa grants the holder limited work rights during term time – usually 40 hours per fortnight – however, employees on this visa have unlimited work rights during term holidays. It is therefore very important to keep an eye on this and also your records very clear as a breach of this work condition can lead to a cancellation of the visa and fines against your business.

Work Visa: this is known as a subclass 482 visa (its predecessor is the subclass 457 visa and some still exist). An employee on this visa must only work for you, must work full time and in the role they are nominated in. You must adhere to all the terms and conditions in the employment contract provided as part of the application and notify the immigration department if any of those terms change. See here for a list of your obligations as an employer/sponsor of a subclass 482 visa holder – https://immi.homeaffairs.gov.au/visas/employing-and-sponsoring-someone/existing-sponsors/standard-business-accredited-obligations

Secondary subclass 482 Visa holder: this is where the partner of the primary visa holder is granted a subclass 482 visa but is not linked to any employer. In this case, there are unlimited work rights granted to this person. However, you must regularly check their visa status to ensure that it remains in place as you have no control or knowledge of the primary visa holder’s situation.

Bridging Visa holder: there are many people in Australia who are currently on a bridging visa, waiting for a decision to be made on their visa application. It is very important to check the work rights linked to this bridging visa. The work rights depend on the visa that the person held previously and also sometimes the visa that to the person has applied for.

Working holiday Visa holder: these people can only work for one employer for a maximum of six months on one visa. There are some exceptions to this rule and, if you are looking to use the exception, it is very important that you comply with the legislation regarding the exception.

There are other visas which have work rights and these work rates are usually set out in the person’s visa grant notification. A simple way to discover whether your potential / current employee has work rights is to do a VEVO check. If there are no conditions attached to the Visa, this usually means that the individual has been limited work rights.

If in doubt, contact a migration professional to advise you. It is better and much less expensive to be safe than sorry!

 

If you have any questions, please contact us:

+61 (0) 429 133 911

 jb@kiteunionmigration.com

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