Hiring people from overseas (updated June 2022)

Australian workplace laws apply to overseas workers

Overseas workers are entitled to the same entitlements as Australian workers including pay rates which correspond to the classification in the Pastoral Award 2020, overtime and penalty rates and superannuation. Read more about pay rates

Unfair and unlawful dismissal laws also apply as do discrimination laws and work health and safety laws.

Australian taxation laws apply but there are differences which depend upon whether the overseas worker is defined as an ‘Australian resident’.  For further information about tax and overseas workers (inc. case study examples) see our overseas workers taxation fact sheet

Work rights

Employers considering employing non-Australian citizens or permanent residents (e.g. working holiday makers) should be aware that some visas prevent or restrict the right of a person to work in Australia. Every worker from overseas must have a valid Australian visa with work rights.

Illegal workers are non-Australian citizens who are working in Australia without a visa, or who are in Australia lawfully but working in breach of their visa conditions. Work means any activity that normally attracts remuneration. In other words, even unpaid workers will be considered to be working if their work would normally attract remuneration.

Importance of checking work rights

People found working without a valid visa can be removed from the workplace without notice to their employers. To avoid the disruption and loss of investment caused by the sudden removal of an employee and the potential for criminal charges, employers should check the work entitlements of new employees.

Employers are responsible for checking all workers’ rights to work in Australia. If employees or job applicants refuse to cooperate, they should be told they will not be employed until such checks have been satisfactorily completed or until their entitlement to work can be verified.

Employers should check the work entitlements of all job applicants. If employers check the work rights of all employees and applicants, they will be in a better position to defend allegations of breaches of the racial discrimination legislation by prospective employees who object to questions relating to their origin.

Checking a prospective employee’s entitlement to work in Australia

Work rights can be checked by asking to see a person’s passport or other evidence of Australian citizenship, such as a birth certificate or certificate of citizenship, as well as appropriate photo identification.

The free Visa Entitlement Verification Online (VEVO) service is the safest and easiest way to check work entitlements of all new workers from overseas, providing you with current visa information. You may also like to read Department of Home Affairs information, or the information at Fair Work Ombudsman.

Employers who do not have immediate access to fax or email have a period of 48 hours in which to conduct any checks.

Providing these checks are initiated within 48 hours of an employee starting work and the employer does not know the person is an illegal worker, the Department of Home Affairs has said that they will not be referred for prosecution, even if the employee turns out to be an illegal worker. Employers relying on the 48-hour checking period will need to have records of the date and time when the employee started work to enable calculation of the 48-hour period.

Employers who discover an employee is an illegal worker must end the working relationship immediately.

How often to check?

Australian citizens and permanent residents need 1 single check at the time of employment. Temporary visa holders must be rechecked to ensure that no changes to their immigration status have occurred. It is advisable for employers to check on VEVO every 3 months.

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Visas

New Labour market testing requirements as of 1 October 2020

All nominations lodged on or after 1 October 2020 must comply with new rules regarding about labour market testing.

The new rules apply to 482 and 494 visas in the Employer sponsored stream and the 482 and 494 visas in the Dairy Industry Labour Agreement stream.

Read the rules at the Department of Home Affairs website.

Essentially in addition to previous requirements for labour market testing, you must also do the following:

• Advertise the nominated position on the Government’s Workforce Australia for businesses website
• The Workforce Australia advertisement must have included all of the information required to be included previously which is detailed via the link listed above
• Workforce Australia advertisements are expected to have run for at least 4 weeks
• Applications or expressions of interest for the advertised position must have been accepted for at least 4 weeks
• Evidence of a total of 3 advertisements (2 if you are applying for a Labour Agreement), including an advertisement published on the Government’s Workforce Australia website, must be provided at the time the nomination is lodged

Visit the Workforce Australia website registration page for advertisements

Employer Sponsored Visas

There are a number of visa options for lawfully operating Australian employers to sponsor and employ skilled workers who have recognised qualifications and skills or experience in particular occupations required in Australia.

Temporary Work (Skilled) visa (TSS Visa subclass 482)

Note: Temporary Work (Skilled) visa (TSS Visa subclass 482), previously subclass 457 – significant changes have been made to this Visa.

From 11 March 2019, the occupation of Dairy Cattle Farmer is on the Regional Occupation List rather than the Short-Term Skilled Occupations List (STSOL) which gives access to 482 visas with up to a 4-year term and possibility of renewal for up to a further 4 years.

A business can sponsor someone for this visa if they cannot find an Australian citizen or permanent resident to do the skilled work. Download: Temporary Work (Skilled) visa (TSS Visa subclass 482) fact sheet (Updated May 2021).

Skilled Employer Sponsored Regional (Provisional) Visa (subclass 494) – (replaced 187 visa on 16 Nov 2019)

The Skilled Work Regional (provisional) visa subclass 494 visa replaces the 187 visa. Download the 494 fact sheet.

– Information on Labour Agreements can be found at the Department of Home Affairs

– Dairy Industry Labour Agreement Template:

Senior Farmhands (FLH5 to FLH7) and Farmhands (FLH3) can now be employed under the Dairy Industry Labour Agreement.

The Dairy Industry Labour Agreement is a formal agreement between the individual farmer and the Department of Home Affairs.

The visa obtained under the Labour Agreement subclass 482 (TSS visa) or subclass 494 (SESR) lasts for up to 4 years (482 TSS visa) and 5 years (494 SESR visa), with the possibility of an extension.

Note: that labour market testing must have been undertaken within 12 months of nomination and you must be able to demonstrate at least 2 attempts to test the Australian labour market. At least one advertisement must have national reach and the other may be local and can include the business’ own website. The English language requirement for the TSS and SESR visa is at least IELTS 5 overall with no minimum component score.

The Dairy Industry Labour Agreement (DILA) can provide a pathway to permanent residency for overseas workers who are engaged under a Labour Agreement for a period of at least 3 years.

Existing Labour Agreement holders need to seek a variation to their agreements to sponsor current Subclass 482 (TSS) visa holders (or the previously used Subclass 457 (TSS) visa holders) for an Employer Nomination Scheme (ENS) (subclass 186) visa. The subclass 494 (SESR) also contains a pathway to permanent residency.

Dairy Australia understands that labour market testing undertaken for 482(457) visa will suffice for a Labour Agreement stream ENS 186 visa application. Note however that the IELTS score for the ENS subclass 186 visa is a 5 with at least 4.5 in each component.

Those that wish to vary their existing DILAs will need to complete a Deed of Variation request and return it to the Department of Home Affairs. Contact: labour.agreement.section@homeaffairs.gov.au

Download: Labour agreement fact sheet (need to know)
Download: Labour Agreement FAQs (updated Nov 2021)

Individual farmers who are seeking to engage overseas workers under the Labour Agreement must make a formal application to the Department of Home Affairs – contact labour.agreement.section@homeaffairs.gov.au

You need to set up an ImmiAccount with the Department of Home Affairs and complete the online request form: accessed here https://online.immi.gov.au/lusc/login

We also have a skills assessment sheet and employment letter of offer template, plus the Department of Home Affairs Information about requesting Labour Agreement guide (booklet)

See below for more resources.

Nomination

Once the Application for a Labour Agreement has been approved, you can proceed to nominate an overseas worker. You can complete this process online here

The worker will lodge a visa application separately online.
Fees apply. For more information, visit Department of Home Affairs

Working Holiday Makers

To meet the seasonal nature of work on dairy farms, it may be worth considering working holiday makers for short-term employment.

Note: COVID-19 has impacted on working holiday visas – stay up to date with the latest information at home affairs website

The working holiday maker program is a cultural exchange program which allows visa holders to supplement their holiday funds through short-term work. Working holiday maker visa holders working in the dairy industry can work full-time for a period of 12 months with the one employer.

The Working holiday visa (subclass 417) is for young people who want to holiday and work in Australia for up to a year, encouraging a cultural exchange and closer ties between Australia and eligible countries. Working holiday visa holders who performed ‘specified work’, in an eligible regional Australian area for a minimum of three months (88 days) while on their first working holiday visa may be eligible for a second working holiday visa. Note: maximum of 12 months’ work with any one employer but can be extended to allow for return to a previous employer.

Note: From July 1 2019, second holiday year 417 and 462 visa holders (as below) may be eligible for a third year working holiday visa, allowing visa holders to stay in Australia and work for an additional 12 months if they have worked for 6 months in a specified field or industry in a designated area of regional Australia.

‘Specified work’ includes (among other things) general maintenance crop work, harvesting and/or packing fruit and vegetable crops and immediate processing of animal products. Dairy farming is ‘specified work’.

3 months of specified work means a period equivalent to three ‘calendar months’, which is taken to be a minimum period of 88 calendar days, inc. weekends or equivalent rest days during the period of employment. In the dairy industry, there are a variety of roster situations which can be considered standard practice due to the 24/7 nature of the industry with early morning and late afternoon work – read the fact sheets for each visa which include an example of how to calculate the 88 calendar days.

The Temporary work and holiday visa (subclass 462) encourages cultural exchange and closer ties between Australia and eligible countries by allowing young adults (18-30) to have an extended holiday during which time they may engage in short term work or study.  As with the working holiday visa, visa holders who performed ‘specified work’, in an eligible regional Australian area for a minimum of three months (88 days) while on their first working holiday visa may be eligible for a second working holiday visa. See note above on second and third year requirements from July 2019.

The Special Category visa (subclass 444) is a temporary visa which allows New Zealand citizens to stay and work in Australia, as long as they remain a New Zealand citizen.

Read more about employing backpackers – download our Backpackers Fact Sheet.

Read the update on tax withholding for working holiday makers on the ATO website.

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Resources

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