There are approximately two million temporary migrants in Australia, making up 10 per cent of our nation's total workforce.
Foreign workers can be international students, working holiday makers, or employer-sponsored visa holders. When employing hospitality staff, it is vital for any business owner to understand that not all visas are the same; some visas provide full working rights, others have work limitations, and some completely prohibit a person to work.
In order to avoid costly litigation and serious penalties, it is important that businesses have adequate policies and procedures to ensure all hires and existing employees are working under the correct visa status for the role.
Why is this important?
The Migration Amendment (Reform of Employer Sanctions) Act 2013 introduced serious penalties for any person or business that allows a non-citizen to work, or who refers a non-citizen to work, in circumstances where they do not have appropriate work rights.
As we enter a period of increased migration following the COVID-19 pandemic, it is vital that employers take steps today to remain compliant.
Top tips for hospitality businesses when employing foreign workers:
- obtain evidence of each worker's Australian identification or passport photo page so that you can undertake a Visa Entitlements Verification Online (VEVO) check for non-citizens. Keep a copy of these documents and ensure all expiry dates are captured in a calendar or reminder system. The VEVO check will tell you if the non-citizen holds a temporary or a permanent visa, when that visa expires, and if there are any work limitations
- ensure your employment contracts include provisions that state employment is conditional on the employee having rights to work in Australia. This provides you with the ability to terminate a person's employment if they no longer have rights to work
- for larger hospitality employers, it is no longer enough for your human resources team to know which employees have work limitations. You must make any supervisor or rostering staff aware of legislation on work limitations, so that they can monitor how many hours a person has worked
- be aware that student visa holders can only work 40 hours per fortnight, while working holiday makers have a six-month work limitation
- stay up-to-date with changes in migration legislation. Currently, work limitations for student and working holiday visa holders have been temporarily waived, so that students can work more than 40 hours per-fortnight and working holiday makers can work for the same employer longer than six-months. The waiver for student visa holders is being extended, but for working holiday makers, the waiver is scheduled to end on 31 December 2022.
Foreign workers are central to the success of Australia's hospitality industry, bringing new flavour, perspectives and a much-needed helping hand to any business. Similarly, Australian employers also play a vital role in the lives of foreign workers, creating a memorable overseas experience and financially supporting their stay.
Creating a compliant and watertight approach to hiring and managing foreign workers is simple, with the right legal help. By implementing processes and procedures from the beginning, hospitality businesses can hire and manage foreign workers confidently and with peace-of-mind that their business is well-protected.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.