Are you considering employing overseas workers in your business? If so, there are some key differences in the process involved in hiring overseas employees compared with recruiting Australian citizens and permanent residents and New Zealand citizens that you should be aware of.
Employing Overseas Workers
For starters, all non-citizens of Australia must hold a valid visa to lawfully remain in Australia. The visa that they hold will determine whether they are permitted to work in Australia and the specified conditions under which they may be employed, for example, they may be subject to a cap on working hours (if they are a student visa holder) or that they must remain employed only by a specified employer (if they hold a work visa). And so if you are looking to hire overseas workers who are already in Australia on a visa, then it will be important for you to check their visa conditions to confirm what their work rights are (if any). Importantly, as the employer, it is your responsibility to ensure that your employees are eligible to work in Australia.
How can you check these details? That is, how can you confirm that someone who says that they are an Australian citizen or permanent resident or a New Zealand citizen?
How Can You Check The Citizenship Or Residency Status Of An Australian Or New Zealand Citizen?
Before hiring someone who says that they are an Australian citizen or permanent resident, or a New Zealand citizen, ask them to provide you with one of the following documents:
- Australian or New Zealand passport
- Australian birth certificate and photo identification
- Australian citizenship evidence and photo identification
- Certificate of Status for New Zealand Citizens in Australia and photo identification
- an overseas passport and a check from the Department of Home Affairs’ online system Visa Entitlement Verification Online (VEVO) showing that they are a permanent resident
With the above evidence, these people can work in Australia without restrictions in line with Australian employment law.
How Can You Check The Work Rights Of Visa Holders?
You can check the visa work rights of your overseas workers using Visa Entitlement Verification Online (VEVO). This is a free online service to check if your employees are eligible to work in Australia.
VEVO will provide the following details for the visa holder:
- their visa start and expiry dates; and
- if the visa holder is not permitted to work in Australia, or if they are subject to work restrictions on their visa.
If the VEVO check confirms that the visa holder has no work restrictions on their visa, then as an employer, you can be comfortable with the fact that the person has unlimited work rights in Australia.
You should employ an overseas worker only if:
- their visa has started
- their visa has not expired or been cancelled
- their visa conditions do not say ‘No work’
- they are allowed to perform the kind of work that you want them to do
Visa holders must also not work more hours than is specified in their visa conditions.
Note that if a visa holder provides you with their tax file number, driver’s licence or Medicare card, this is not sufficient evidence to determine their work rights in Australia.
Also, if you hire an overseas worker, ensure that they hold a valid visa that allows them to work for the whole time that they work for you. You should check their visa within two days of visa expiry and when their circumstances change. If they hold a bridging visa and VEVO does not show a visa expiry date, you should check their visa every three months to ensure that they have work rights in Australia.
Our discussion so far has covered the situation where you are considering hiring overseas employees that are already in Australia. But what about those who are located offshore? Can you hire overseas workers and bring them to Australia on a skilled visa to work for your business?
Sponsor An Overseas Worker Who Is Located Outside of Australia
Another way in which you can hire overseas workers is to sponsor a skilled worker who is located offshore for a work visa (which may be temporary, permanent or which provides a pathway to permanent residency in the future).
If you are looking at overseas recruitment, you may like to consider engaging a recruitment specialist to help you to search for suitable candidates in your industry. Or you could use LinkedIn, for example, by networking and using your contacts to help with your overseas recruitment efforts.
Sponsor An Overseas Worker Who Is Located In Australia
Or you can sponsor an overseas worker who is already located in Australia as the holder of another visa (such as a working holiday visa) for a skilled visa (again, either temporary or permanent).
Either way, it is important to point out that whether you hire an Australian or you hire overseas workers, they are each entitled to the same workplace rights and protections (including the same pay rates, superannuation and leave entitlements). Overseas workers are also required to pay tax in Australia, although special rates apply in certain circumstances (for example, to working holiday visa holders).
How Can You Sponsor An Overseas Worker In Your Business?
There are several options that are available to employers in Australia who are looking at hiring overseas employees and sponsoring or nominating them for a skilled visa. If you are unable to recruit appropriately skilled workers from the local labour market, then you may like to consider sponsoring a skilled migrant for your business. Provided that your business and potential foreign employees meet the relevant requirements, then this may be a good option to help you to fill skill shortages in your business.
We have prepared a series of articles that discuss the skilled visa options in-depth. Please refer to the links at the end of this article to learn about these options and whether they could work for your business.
In the meantime, you can check out the following articles which provide an overview of the employer sponsored skilled visa options that you may like to consider.
You should also be aware of the labour market testing requirements that may apply if you are seeing to fill skill shortages in your business using overseas recruitment. We recommend that you refer to our article on the Labour Market Testing Requirements to learn more.
To Summarise Our Discussion …
And so to summarise our discussion, to hire overseas workers, you can either:
- employ or sponsor skilled workers who are already in Australia and have a visa that allows them to work;
- employ or sponsor other skilled workers who may be in Australia on another type of visa that does not currently allow them to work, or which imposes restrictions on their work rights; or
- use overseas recruitment to sponsor skilled workers to come to Australia to work for you.
Although certain visas allow the holder to work in Australia, they may impose work restrictions or limitations such as, for example:
- they may be required to work for a specified employer or in a certain location (such as in a regional area of Australia). The visa holder may already be sponsored and employed by an employer in Australia;
- they may be restricted to working a maximum number of hours per fortnight (such as Student visa holders); or
- they may be subject to restrictions on how long they may work for a particular employer (such as Working Holiday visa holders).
Importantly, as the employer, it is your responsibility to ensure that your employees are able to work in Australia, and to be aware of any work restrictions to which they are subject.
We have also provided links to a series of articles to help you to learn about the different skilled visa options that are available both above and at the end of this article (see below).
All employees in Australia, whether they are visa holders or Australian citizens or permanent residents, have the same workplace rights and protections. This means that when hiring overseas employees, you must provide:
- at least the minimum wage or the relevant market salary rate (for sponsored skilled visas)
- payslips, superannuation and taxation documents to the employee
- a safe workplace
- legal pay rates, leave conditions, shift arrangements and dismissal processes to which Australian employees are entitled
If employing overseas workers on a sponsored skilled visa, you need to be aware of and abide by your sponsorship obligations. These obligations may include:
- Ensure equivalent terms and conditions of employment
- Pay travel costs to enable sponsored persons to leave Australia
- Keep records
- Provide information to the Department when certain events occur
Depending on the type of sponsor that your business is will determine the sponsorship obligations that apply.
As the sponsoring employer, it is critical that you fully understand and abide by your sponsorship obligations. Failing to abide by your sponsorship obligations may result in sanctions, which can include the cancellation of sponsorship approval or being issued with an infringement notice.
Please see the following articles for further information about the different sponsorship types and the sponsorship obligations that apply as well as the potential sanctions that may be imposed for non-compliance.
Standard Business Sponsors
Obligations For Standard Business Sponsorship (to insert)
Accredited Business Sponsors
How To Become An Accredited Sponsor (to insert)
Temporary Activities Sponsors
How To Become A Temporary Activities Sponsor (to insert)
There are also a number of employer obligations that your business must meet when employing overseas workers. Failing to meet the below obligations may result in an infringement notice being issued:
- allowing an unlawful non-citizen to work
- allowing a lawful non-citizen to work in breach of a work condition on their visa
- referring an unlawful non-citizen for work
- referring a lawful non-citizen for work in breach of a work condition on their visa
Get More Information
Skilled Visa Options For Selected Occupations
Please refer to our series of articles on the skilled visa options that are available for selected occupations below:
Employer Sponsored Regional Visa
For information on the subclass 494 regional employer sponsored visa, please see the following articles:
Employer Sponsored Visa
To learn about an employer sponsorship visa, please see the following articles:
Minimum Salary For Visa Sponsorship
How To Sponsor A Worker From Overseas
Applying For Temporary Skill Shortage Visa
Obligations For Standard Business Sponsorship
How To Become An Accredited Sponsor
How To Become A Temporary Activities Sponsor
Seasonal Worker Program And Visa Sponsorship
To learn about applying for a skilled visa, please see the following articles:
Subscribe to our newsletter for regular updates and additional information.
Contact us to book a no-obligation consultation to find out more about employing overseas workers and the factors to consider with overseas recruitment or employing overseas workers who are located onshore, including your obligations as an employer and how you can sponsor workers from overseas for your business.
* * * * * * * * * * * *
In conclusion, we note that the above discussion provides an overview of the important factors to consider if you are looking at hiring overseas employees for your business. We also provide links to further information so that you can learn more about how to sponsor a worker from overseas for your business.
Australia’s migration laws are complex, and each case is different. We recommend that you seek professional advice if you are interested in sponsoring a worker from overseas for your business, as being fully informed will give you the best chance of achieving a successful outcome on your case. A migration professional can help you to do this.
For up-to-date advice about employing overseas workers, including your obligations as an employer and how you can sponsor workers from overseas for your business, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.