Employer's guide to engaging visa workers
With over 6.2 million jobs occupied by Visa workers in 2021-2022, their regulations and entitlements have been a key focus of the Fair Work Ombudsman in recent years.
Recent action by the Fair Work Ombudsman and the Department of Home Affairs shows they’re taking measures to ensure businesses are complying with immigration laws and protecting vulnerable workers who may not understand their rights and entitlements under Australian law.
So, what happens when business employers fail to comply with immigration laws and engage Visa workers compliantly? They can face sanctions, lose sponsorship status, or even face criminalisation if knowingly underpaying staff with recent legislative changes.
Complying with Australian work visa restrictions can be tricky, especially with the various visa types and conditions involved. This guide will walk you through everything employers need to know about hiring visa workers and ensuring you fully comply with the law.
What are the different Australian Visa categories?
Australia grants different types of visas according to different purposes as to why individuals would need to stay in the country. Broadly speaking, visas can be broken down into the following categories:
Temporary visas
Temporary visas are granted to individuals who must be in Australia for a specified period and for a particular purpose, such as to study or perform skilled work. Specific visas in this category can include:
- Student visas (Subclass 500)
- Working holiday visas (Subclasses 417, 462)
- Skilled Regional Provisional visa (Subclass 491)
Permanent visas
Individuals apply for permanent visas if they opt for long-term residency or citizenship. Permanent visas may require residency, work in a specific area, or investment activity within the country. Specific visas in this category can include:
- Employer Nomination Scheme visa (Subclass 186)
- Skilled Nominated visa (Subclass 190)
- Skilled Independent visa (Subclass 189)
Special visas
Special visas are intended for unique situations, such as when individuals are awaiting a decision on another visa or allowing time for recent graduates to gain work experience in Australia. Individuals sponsored by their spouse, parent, or child will also fall under this visa category. Specific visas in this category can include:
- Distinguished Talent visa (Subclass 858)
- Bridging visas (Subclasses A, B, C, etc.)
Visa restrictions employers must know
Australia has over 120 visa types, and each subclass has conditions or restrictions. As an employer, there are different types of restrictions you need to stay on top of to comply with immigration laws and provide support to employees.
Depending on the visa type, there could be restrictions on how many hours a visa holder can work. Let’s take the 8104 visa condition as an example.
Visa holders covered under that 8104 visa condition can only work a maximum of 48 hours per fortnight while the primary purpose of their visa is ongoing, such as studies. This condition is usually imposed on student visa secondary applicants or dependent family members of temporary visa holders.
8104 visa restriction is set to ensure that visa holders do not prioritise work over the main reason they are in Australia, such as studying. However, there are cases when 8104 restrictions can be waived, such as when the primary visa holder is undertaking a master’s or doctoral degree.
Meanwhile, visa condition 8105 is also related to work restrictions for certain visa holders, typically for those with student visas. Under this condition, student visa work hours are restricted to 48 hours per fortnight however they cannot work prior to the course start (unless at time of application they held another visa that permitted them to work).
Some visas are under occupational restrictions such as the Working Holiday Maker (WHM) visas (subclasses 462 and 417).
For instance, visa condition 8547 applies to Working Holiday Maker visa holders and restricts them from working for the same employer for more than six months unless there’s written permission. However, they can work for more than six months without consent if it’s for the same employer but in a different location, plant and animal cultivation work, natural disaster recovery, critical sectors like agriculture, and certain industries in Northern Australia, such as fishing and pearling.
Visas may be classified under single sponsorship or multiple sponsorship, and the onus is on the employer to ensure that appropriate conditions are applied in this context.
A single sponsor restriction applies when a worker’s visa is sponsored by their employer, meaning the visa holder can only work for that employer. This usually applies to visas like the Temporary Skill Shortage (TSS) visa, Employer Nomination Scheme (ENS) visa, and Regional Sponsored Migration Scheme (RSMS) visa.
Suppose the visa holder wants to switch employers. In that case, the new employer must submit a new nomination application, which must be approved by the Department of Home Affairs before the worker can start with the new employer.
Meanwhile, a visa holder with a multiple sponsor restriction is not tied to just one employer. However, they are still bound by certain guidelines, depending on their visa subclass. For instance, a student visa holder may work for multiple employers, but they still cannot exceed 48 hours per fortnight during their study period.
Location restrictions can also apply depending on the type of visa. Skilled Work Regional Visa and Regional Sponsored Migration Scheme Visas are examples of visa subclasses that have location requirements. This means that holders of such visas must work, live, or study only in designated regional areas. Furthermore, employers must comply with regional obligations and support the relocation needs of their workers, if applicable.
Employers must also be aware of visa duration and renewal conditions. Temporary visas can last from a few months to a few years, depending on their purpose. If you’re sponsoring visa workers, you need to know when the visa will lapse and plan accordingly for renewal or help them transition to permanent residency to retain the employee.
Employers must also be mindful of any industry-specific restrictions when employing visa workers. For example, WHM visa holders are only typically allowed to work for 6 months, but regulations can be relaxed to address labour shortages depending on the industry, such as in agriculture.
Visa sponsorship: employer benefits, guidelines, and compliance
Visa sponsorship can be a competitive advantage for employers, especially in today’s labour market. It can provide various benefits, such as addressing a labour shortage, tapping into a diverse global talent pool, retaining top talent, reducing turnover costs, and ensuring business continuity.
Two key areas exist when being a visa sponsor in Australia. First, you need to undergo specific steps to become a sponsor, while the other equally crucial half is how to remain compliant.
Should you want to sponsor a worker, you need to undergo certain steps (note, these steps may vary between different visa types):
- You need to do labour market testing to prove you can’t find someone in Australia to fill a role.
- Before sponsoring a visa, your vacancy should be on the list of eligible skilled occupations.
- Determine the type of visa that suits your requirements. Double check eligibility through Visa Entitlement Verification Online (VEVO) tools.
- Start an application to become a sponsor and prove that you are eligible.
- Nominate a position in line with the visa type you chose.
- Complete the visa application. The worker usually does this part, and you can assist by ensuring that they meet the criteria.
For further details, check out the Department of Home Affairs’ full breakdown.
Once you successfully acquire sponsorship status, you must remain compliant to keep it. Here are some of the ways to do so:
- Inform the relevant parties in writing when certain changes take place, such as a change in ownership, business liquidation, employment end dates, or changes in work or duties.
- See to it that the employees only perform the nominated occupation. You must lodge a new nomination if you want a visa worker to perform another designation or tasks that fall outside the original role.
- Compensate and treat visa workers fairly. When approved, an employee’s annual salary should be at least the amount listed in the nomination application. Working conditions should be at least the same as those of an Australian worker doing the same job.
- Record-keeping is also necessary for sponsors, as this will prove compliance and fulfill your obligations. If requested, you must be ready to provide records and information to authorities. You must also cooperate with inspectors when they’re conducting checks to see if you’re meeting sponsorship obligations.
- Pay the necessary costs and fees, such as applicable travel costs, nomination charges, migration agent fees, and recruitment agent fees.
Best practices for managing visa workers in Australia
Bringing in visa workers can help you bring valuable skills to your business, but managing them is crucial. From staying on top of visa conditions to providing a fair and supportive workplace, how you handle your visa workers can make all the difference. Here are some best practices to help you stay compliant and create a space where visa workers can succeed.
Use HR technology to manage visa workers.
With the right HR technology, you can keep on top of sponsor obligations and simplify the administrative areas of managing visa holders.
Tanda users can benefit from a number of features that help with visa compliance, including:
- Automating Right to Work checks - Tanda is integrated with vSure, which automates Right to Work checks and temporary visa monitoring. It eliminates manual VEVO checks and ensures that visa information is kept up-to-date.
- Staying on top of visa qualifications - Businesses create and track visa details with Tanda’s qualifications features, allowing you stay on top of expiry dates and set maximum hours of work.
- Monitor rostering of visa staff - With roster validations, you can prevent visa holders from being rostered past their 48 hour limits, or prevent them from working if visa details are no longer valid
- Flexibility when education is out of session - If work hour limits relax for your visa staff when they’re between semesters, rostering restrictions can be relaxed with effective periods
- Recordkeeping - Tanda provides a single source of truth when it comes to employee data and visa information. Should you be subject to audits or inspections, you can easily present necessary information to prove compliance.
Stay up to date with visa rules and regulations.
Visa rules can change at any time, and you must stay updated on new developments. Changes can be influenced by factors such as economic demands, international relations, and government policy changes. Businesses must remain informed about any Department of Home Affairs updates about visa restrictions that could affect their team.
For instance, a recent development was passed to curb “visa hopping”. Starting July 1, 2024, Visitor Visa holders and Temporary Graduate Visa can no longer apply for Student Visas while in Australia.
Maintain compliance with other Fair Work requirements
It’s important to remember visa workers have the same rights and entitlements as any other employee, and you should make sure you’re abiding by the requirements in the relevant industrial instrument.
The Fair Work Ombudsman, in partnership with the Department of Home Affairs, has recovered penalties for visa workers across Australia. Some cases came from vulnerable workers requesting support, while others were uncovered during surprise inspections of businesses.
Jana Dee Reserva
Jana Dee is a content and digital marketing professional who's advocating for cultural breakthroughs in organisations through technology and good employee engagement practices.
Ready to get started with Tanda?
Keep compliance top of mind with workplace resources
Get the latest tools and articles sent straight to your inbox