Did you know that migrants and temporary residents had a labour force participation rate of 72%, according to recent reports? It’s true — Australia is the land of dreams for many and one of the preferred destinations for foreign migrant workers. 

But you’ve probably noticed that COVID-19 proved to be a bottleneck in hiring foreign migrant workers for many businesses like yourself. 

The good news? After a very long time, things are changing. 

Yes, you read that correctly.

Slowly and steadily, foreign workers are once again welcome in Australia, which means you can now hire foreign employees with the skills your business needs and grow your business with some like-minded employees in 2022. 

Now, many businesses like yours haven’t hired foreign employees for a while, and it can be overwhelming if you don’t know where to begin, and it’s natural to wonder. 

‘Where do I start?’ ‘Have the laws changed?’ Both are excellent questions, and in this post, we’ll help you prepare your journey of hiring a foreign employee the legal way and make 2022 all about growing your business with the best talent by your side. 

Read along

Importance of hiring foreign workers properly

The number of businesses hiring foreign employees is growing, especially since so many Australians are working from home. What’s the reason? Well, the hiring of foreign employees can have a lot of benefits for your business. 

Cultural diversity, the ability to hire highly skilled individuals with unique backgrounds, and reduced labour costs are just some of the benefits of employing foreign workers.

Let’s say your company is considering this approach. But just imagine if all this planning goes south because you missed checking all the legal tickboxes at the time of hiring. 

Common employer mistakes include:

• Not obtaining the correct visa – You may hire an employee who has a visa, but it would not necessarily allow them to work
• Working duration – Your employee may not be able to work if the time of their employment agreement isn’t clear 
• Unsure about what employment standards apply to foreign workers
• Not providing mandatory benefits
• Not checking if your foreign employee has legal working rights in Australia

Of course, as a business, you do not want to be in such a position, and we’re sure it’s the last thing you want to worry about either, especially if your foreign employees are flourishing. 

With laws and policies about foreign employees constantly changing, it is safe to say that it can be tricky to know your obligations, but it doesn’t have to be this way. 

So why not ensure that you meet all your employer obligations and hire foreign workers properly? Just like you, we want your business’s 2022 new year’s resolution to become a reality.

1. Who can I hire from overseas: Difference between a non-citizen and an approved business sponsor

As an employer, it’s on you to consider what type of foreign employee you wish to hire for your business. But you may be wondering, what are the different options available?

Simply put, you can employ foreign employees in 3 ways:

• Non-citizen in Australia already allowed to work – A non-citizen is an individual who is already in Australia. They already have a visa that allows them to work, such as international students or working holiday visa holders
• Non-citizen in Australia not currently allowed to work – This is an individual who is in Australia on another type of visa which doesn’t currently allow them to work that your business wishes to hire
• Business sponsored – A business-sponsored individual is a skilled worker who lives overseas or temporarily in Australia for a work visa on a permanent or temporary basis

Whether you choose to hire an employee as a non-citizen or become an approved business sponsor, your employer legal obligations must still be met, and it is your responsibility to ensure that your foreign employee has legal working rights in Australia.

2. What visa do I need for my foreign employee?

So you’re now aware that you can choose between a non-citizen employee and or choose to have a business-sponsored foreign employee but is that the same as a visa? The short answer is no. 

If you want to hire a foreign employee to work for your business, your employee needs to have the right working visa that matches your business requirements. As an employer, it will be your responsibility to hire an employee with the right working visa.

Perhaps you’re still unsure what employee visas would work for your business? Not to worry, many business owners are at this stage are.

 Listed below are the most common types of visas and their working rights in Australia:

• Employer-sponsored visas – Allows skilled workers their employers have nominated to live and work full-time in Australia permanently
• Skilled occupation visas – Available to individuals who are qualified to work or train in an eligible skilled occupation in Australia with full-time working rights 
• Student visas – Available to students who participate in an eligible course of study in Australia for up to 5 years and must work up to 40 hours every 2 weeks once their studies begin
• Working holiday visa – Available for individuals who want an extended holiday. They have full-time working rights for one employer for up to 6 months
• Training visa – This allows an individual to participate in workplace-based training for up to 2 years with at least 30 hours of working per week
• Partner visa – Partner visas have full-time working rights 

If you need more assistance, you can check your employee’s type of visa and what conditions apply through the Visa Entitlement Verification Online system (VEVO). VEVO will show you whether the employee you’re choosing to hire has the correct visa to allow them to work in Australia.

You can be confident that you have already ticked off the first steps in ensuring that future employee has the correct working rights to work.

3.  Complying with National Employment Standards

So you’re off to a great start so far, but your employer obligations don’t just end once you find the correct visa for your foreign employee. 

You have many other legal obligations and responsibilities to meet once your foreign employee actually gets hired. 

Just as all your current employees have the rights and protections your business offers, your foreign employees are entitled to the same workplace rights regardless of their immigration status. 

To make sure you’re meeting this requirement, you need to comply with the 11 National Employment Standards (NES). So instead of trying to avoid getting into trouble for failing to meet your legal obligations, make sure these 10 things are in order:  

• 1. Maximum Working Hours – Unless the additional hours are reasonable, you cannot require your foreign employee to work more than a standard 38-hour weekly workweek
• 2. Parental Leave – You must provide permanent and long-term casual foreign employees with 12 months of service to take up to 12 months of unpaid parental leave 
• 3. Annual Leave – Full-time and part-time foreign employees are entitled to four weeks of paid annual leave based on their ordinary work hours
• 4. Flexible Working Conditions – When your foreign employee has worked with you for at least 12 months, they can request flexible working arrangements
• 5. Compassionate and Personal Carer leave – A foreign employee who works full-time is entitled to ten days of paid personal leave per year. There is also a 2-day unpaid carer leave entitlement for all employees (full-time, part-time, and casual)
• 6. Community Service Leave – An employee may only take this type of leave when performing voluntary community service, such as jury duty
• 7. Public Holiday Leave – Foreign employees may be absent from work on public holidays
• 9. Casual-to-permanent offers and requests – Foreign casual employees working for your business for 12 months should have the option to convert to full-time or part-time (permanent) positions
• 9. Notice of Termination – An foreign employee with less than one year of service must be given one week’s notice before being terminated. 
• 10. Redundancy – Foreign employees who are made genuinely redundant are entitled to receive a severance payment 
• 11. Right to receive a Fair Work Information Statement – Every employee is entitled to a Fair Work information statement.

If you meet all your legal obligations as the NES requires, you and your foreign employees are off to a great start in your working relationship.

4. Additional responsibilities hiring as a sponsored business

Aside from meeting the NES standards, you need to do a couple of other things to make sure your foreign employee starts on the right foot.

You’ll have slightly different legal requirements if you hire a foreign employee as an approved sponsor, but don’t worry; we’ve laid it all out for you. These requirements include:

• Working with inspectors – Inspectors ensure that your workplace is the right fit for your foreign employee. Be assured, this is just part of the process, and it includes visiting your place of work, interviewing people and inspecting work processes
• All employees should have equal terms and conditions of employment – Making sure that your foreign employees are on the same terms as your Australian employees are necessary. This applies to their salaries, duties, and other working conditions.
• Always keep records – Keep records of emails to the Department of Home Affairs and employment records of your foreign employee
• Make sure your sponsored employee works in the position they were hired for unless a labour agreement is in place. Your employee may not work for another business.
• Cover all the costs of hiring a sponsored foreign employee – Sponsoring foreign employees is not free, and you are responsible for recruiting, supporting and nominating your foreign employee

5. Covid-19 requirements

It’s no stranger to us all that COVID-19 had placed some restrictions on businesses who were wishing to hire foreign employees. We’re sure you were one of those businesses if you’re now reading this post? 

Well, it’s excellent news for you because there have been government updates for businesses now wanting to bring new talent from overseas. 

With Covid-19 government regulations changing daily, it’s essential to keep up to date, but here is what you need to know now.

• Vaccination requirements – Both vaccinated, and unvaccinated employees can enter Australia
• Australia Travel Declaration – All foreign employees must complete an Australia Travel Declaration before coming to Australia.
• Pre-departure testing – All foreign employees must provide a negative Covid-19 polymerase chain reaction (PCR) test. The results must be in paper or electronic form and should include the employee’s name, date of birth, test result, method and date of the PCR test. 
• Testing and isolation requirements upon arrival – Vaccinated passengers must self-isolate until they receive a negative Covid-19 rapid antigen test or after 6 days of mandatory quarantine. Unvaccinated passengers must self-isolate until they receive a negative Covid-19 rapid antigen test or after a 14-day mandatory quarantine
• Masks – Employees must wear a mask during their flight and in all Australian airports, and the airline will not let them check-in or board if they refuse to wear a mask.

6. Other continuing legal obligations and responsibilities

Whether you choose to hire an employee as a non-citizen or become an approved business sponsor, your employer legal obligations don’t end once your foreign employee is hired.

You have ongoing obligations, and it is your responsibility to take the necessary steps to ensure that your foreign employee is still allowed to work in Australia.

Although it can seem like it’s enough that you conducted a VEVO search before hiring your employee, you need to continuously monitor any changes to your employees working restrictions and duration of employment.

Now, why is this important? Just imagine that during the course of your foreign employee’s contract, they decide to change visas and don’t notify you. What happens if this new visa has a working restriction and affects your employees right to work in Australia?

Whether your employee simply forgets to tell you doesn’t matter. It’s your responsibility as an employer to take all the necessary steps at a reasonable time to confirm whether your employee’s working conditions ever change. 

So if you don’t want to be in breach of the Migration Act or be restricted from sponsoring other employees in the future, ensure you’re always up to date with your obligations.

7. Labour Agreement Stream Visa

You can also hire foreign workers through a Labour agreement stream visa which is under the Employer Nomination Scheme (subclass 186). 

Using this visa, you can nominate a skilled foreign worker to permanently live and work in Australia. You can use this visa for current or future workers. 

The cost of the visa starts from $4115 AUD. 

The processing times for this visa differ. According to the Australian Government’s Department of Home Affairs the processing times as are as follows:

• 25% of applications are processed within 47 days 
• 50% of applications are processed within  3 months
• 75% of applications are processed within  5 months 
• 90% of applications are processed within  8 months.

Once your worker receives their visa, they can do the following: 

• Permanently study, work and live in Australia 
• Provide sponsorship for eligible relatives to travel to Australia
• If eligible, apply to become an Australian citizen
• Sign up for Medicare to access Australia’s public health care system
• For 5 years they can travel to and from Australia

Your foreign employee’s status as a permanent resident for citizenship purposes starts when they’re granted their visa if they’re in Australia or when they arrive in Australia through their visa if they’re outside of Australia

For foreign workers to receive this visa as their employer you must be a party to a labour agreement. Furthermore, they must be currently employed by you or be employed by you in the future. 

Your foreign workers must also meet the requirements of the labour agreement regarding skills, age and English language requirements.

Conclusion

With Australia’s international regulations easing allowing you and so many other businesses to hire skilled foreign workers once again, it’s wise to think about legal obligation at your end. It can be tricky to start, but implementing the tips discussed in the post will help you a lot. 

And if you need additional advice, contact our specialised lawyers here at Lawpath, and they can help you with specialised information on getting started right away.

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