International Students & Temporary Visa Holders Work Rights
Rights for International Students & Temporary Workers
We have come across numerous situation where employees are not correctly compensated for their wages and superannuation by their employers as per the relevant award or minimum wages payable as per the act. This is especially common among international students and workers on temporary visas who are often not aware of their rights, or are not willing to take take action as they are concerned that it might have repercussion from their employers or it may have an impact on their visa.
The work related rights of any temporary resident in Australia, including international students in relation to wages and superannuation cannot be compromised or exploited by their employers. It the employee on temporary visa adheres with the attached visa conditions and the employer refuses to pay minimum wages as per applicable award, employment contract or enterprise agreement, then you are entitled to take Legal action against your employer.
Cash In Hand Arrangements
Another common practice among businesses is to engage workers and paying them on what is refereed as "Cash-In-Hand" basis, the wages paid with such arrangements must not be lower then the minimum wages as per the award and other employment related entitlements including the superannuation or the work insurance should be covered in your employment arrangement.
Checklist for employees being paid on cash-basis
Ensure that you are getting paid correctly as per the award
Your taxes are paid and declared
You receive superannuation and are covered under your employer's workers compensation insurance
Get taxation advice from an Accountant
Are you Contractor & Employee ?
In some cases parties have limited understanding about their entitlements. If you are classified as a contractor then you come under a different umbrella and may not be entitled to receive some of the benefits that a employees get.
In order to determine if you are a employee or a contractor, the employment contract by itself is not sufficient, it is a objective and subjective assessment as seen in the landmark High Court case of Hollis and Vabu Pty Ltd (2001), things such as your employment arrangement, dress-code, fringe benefits, work flexibility and job duties are some of the important things that are considered in evaluating if you are employee or contractor.
If your employer is disguising you as a contractor to avoid your entitlements that you would have received as a employee then you must seek legal advice about your rights. As such sham contracts may attract serious penalties under the Fair Work Act, which carries maximum penalties for up-to $ 33,000 for each breach against your employer.
Paying your employer for migration
There are some unfortunate international students who have paid their employers with hope that they shall sponsor them for their work visas.
Arrangements under which you are being asked to deposit your wages, superannuation or migration fees are illegal both under Migration Act 1958 and Contract Law, in some extreme cases the employer and migration agents are criminally charged where deception is involved. The charge of deception is very serious it is covered under s 81 & 82 of Crimes Act 1958, the charge carries maximum penalties for up-to 10 years imprisonment.
If you are facing such scenario then you can get assistance from Fair Work Ombudsman, this is a government body which deals with ensuring that employers are complying with the law. If you matter cannot be dealt with Fair Work then you can consult a Employment Solicitor.
Lvl 13, 227 Collins St, Melbourne, 3000
Phone: 0449 860 517
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ZMK Lawyers legal blog, “tweets” and monthly legal articles is not legal advice. You should not act upon this information without seeking advice from a lawyer/solicitor.