Recently we have seen a couple of cases where the Department of Home Affairs seemed ready to reject 186 Temporary Residence Transition stream applications just because the visa applicants and their employers appeared to have not got employees’ leave entitlements and overtime payment right.
Work entitlements – why should I care?
The Department of Home Affairs has been working closely with the Fair Work Commission and Fair Work Ombudsman in ensuring employers’ compliance of fair work legislation. If you are an employer, legal consequences for breaching the fair work legislation may include fines, civil and criminal penalties. If you are a work visa holder, you might risk losing your eligibility for a permanent residency visa – just like the cases we discussed above.
How to confirm relevant work entitlements?
All employees in Australia are now covered by the 10 National Employment Standards (NES), which stipulate the national minimum wage and minimum entitlements for employees in Australia. In addition to the NES, one will need to check on whether their role is covered by any applicable Award, enterprise agreement or registered agreement to confirm their employment entitlements. Importantly, the Award, enterprise or registered agreement cannot provide for conditions that are less than what is provided in the NES. In other words, if one’s role is also covered by an Award, enterprise or registered agreement, they might enjoy better entitlements in terms of leave, overtime payment and arrangements, as well as minimum wages/salary for provision of their services.
How can I confirm compliance with relevant legal and policy requirements?
Sometimes it would be quite clear as to whether one is covered by any applicable Award or Agreement or than the NES. For example, if you are an architectural drafts-person, you would know you are covered by the Architect Award 2010. Other times whether one is covered – and whether one seems to be covered at first glimpse but is indeed excluded due to some other reasons – may be a challenging task for both employers and employees. As explained earlier, the costs of lack of this knowledge may be unexpectedly high.
SCA Connect is experienced in assisting our clients in ensuring compliance with relevant fair work and migration legislation and departmental policies. If you are seeking guidance on type of evidence you should prepare for, please book a consultation with one of our experienced migration agents today.
Disclaimer: The information provided herein is of a general nature only and does not constitute immigration advice. For more detailed and case specific information or advice, please contact SCA Connect.