The Overlap of Migration and Employment Law: What Employers Must Know
Written by Partner, Corina Chen, Partner, Sam McIvor and Solicitor, Bronte Jackson - Mullins Lawyers
As skills shortages continue to rise and the demand for international talent grows, the intersection of migration and employment law has become increasingly relevant for Australian businesses. Navigating the complexities of these laws is critical, as compliance directly impacts the ability to onboard and retain international employees efficiently. This article provides an overview of the current regulatory landscape, key updates for corporate immigration, and practical insights into how recent employment law changes may affect your business.
Understanding Sponsorship Pathways and Visa Compliance
Businesses looking to employ foreign nationals in Australia must navigate a series of pathways, each with distinct eligibility requirements. The Skills in Demand Visa (Subclass 482) (previously called the “Temporary Skill Shortage Visa”) remains a popular choice for employers seeking overseas workers, with the Temporary Work (Short Stay Specialist) Visa (Subclass 400) also frequently adopted for shorter-term engagements. However, recent changes to the requirements and the decision-making policy for these visas, call for careful consideration to guarantee compliance and ensure a successful visa outcome.
These changes, along with Australia’s evolving skilled and work visa programs, reflect a focus on addressing critical skills shortages. Employers must stay up-to-date to ensure compliance and make the best choices for their workforce. Employers should also be aware of the government’s periodic review of visa regulations, as these could impact sponsorship obligations or introduce new compliance considerations.
Workforce Planning: Integrating Immigration and Employment Law
With the Australian government tightening its stance on corporate compliance, employers must ensure their practices align with migration and employment legislation. Comprehensive workforce planning now includes understanding visa eligibility criteria, adhering to sponsorship obligations, complying with the Fair Work Act 2009 (Cth) (FW Act), and preparing for potential compliance monitoring.
The increasing scrutiny of corporate immigration practices emphasises the need for robust processes and internal policies to manage visa compliance effectively. Employers who fail to meet these standards could face substantial penalties, reputational damage, and restrictions on future sponsorship opportunities.
Additional Immigration Law Considerations
Employers should be aware of several key considerations specific to Australian immigration law, particularly as they intersect with workforce management:
- Labour Market Testing: Employers sponsoring overseas workers must comply with these requirements by demonstrating genuine efforts to recruit local candidates before seeking overseas talent. Recent changes have further clarified acceptable evidence, emphasising transparency and adherence to fair hiring practices.
- Sponsorship Obligations: Approved sponsors have ongoing obligations, such as notifying the Department of Home Affairs about changes in the employment status of sponsored workers or any relevant business changes. Non-compliance with these obligations may result in penalties, suspension, or cancellation of sponsorship status.
- Visa Conditions and Monitoring: Ensuring employees on temporary visas adhere to their visa conditions is critical. For instance, visa holders may be restricted to only working for their sponsoring employer, or within specified industries or regions. Some visa holders may only have the right to work for the same employer for up to six months, or they may only work for up to 48 hours per fortnight. Employers must be across what these visa conditions mean to monitor and ensure compliance.
Employer Responsibilities: Sanctions, Standards, and Compliance
The National Employment Standards (NES)
The NES are the minimum employment entitlements provided to all employees in Australia. Employment contracts with visa holders cannot exclude the NES or provide less favourable conditions.
The minimum entitlements include:
- Maximum Hours: The NES establish the maximum weekly hours of work, and the circumstances in which an employee may refuse (unreasonable) additional hours. Whether additional hours are ‘unreasonable’ depends on work health and safety, the employee’s personal and professional circumstances, their remuneration, the relationship between the parties, the usual patterns of work in the industry, and any other relevant matters.
- Flexible Working Arrangements: Eligible employees may request flexibility in their hours, patterns and/or location of work. An employee's eligibility requires an assessment of their period of service and personal circumstances (such as age, health status, caring responsibilities, or experience with family and domestic violence).
- Casual Employment: On 26 August 2024, a new ’employee choice’ pathway to permanent employment was introduced. Now, eligible employees can ‘notify’ their employer of their intention to transfer to permanent employment. Employers must, within 21 days, consult with the employee. The circumstances in which employers can reject a request are limited.
- Parental Leave: Eligible employees can take unpaid parental leave when a child is born /adopted. There are strict rules around eligibility, the length of leave, and when the leave can be extended.
- Annual Leave: Full-time and part-time employees are entitled to four weeks of annual leave, based on their ordinary hours of work. Accurately determining a part-time employee’s ‘ordinary hours of work’ is crucial.
- Other leave: The NES provide employees with various other types of paid/unpaid leave. An employee's eligibility for the leave will depend on how they’re engaged, why they require the leave, and the evidence they provide confirming same.
- Long Service Leave: Under the NES, employees are entitled to accrue long service leave. However, the specific rules around long service leave depend on the relevant state/territory legislation.
- Public Holidays: Employees do not have to work on a public holiday, but they may agree to if reasonably requested by their employer. If an employee does work on a public holiday, they're entitled to different pay/entitlements.
- Superannuation: Superannuation is an entitlement under the NES, however, the rules governing the entitlement are set out in the Superannuation Guarantee (Administration) Act 1992 (Cth), modern awards and enterprise agreements.
- Notice of Termination and Redundancy Pay: The NES provide the minimum notice of termination and redundancy pay an employee is entitled to receive – which depends on their length of continuous service. Employment contracts, applicable modern awards and enterprise agreements can provide notice periods/redundancy pay above that set out in the NES.
- Fair Work Statements: Employers must give new employees a copy of the Fair Work Information Statement on commencement. Casual employees must also receive a copy of the Casual Employment Information Statement (upon commencing employment and at other set times during their employment). The case of Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512 confirmed the importance of providing visa holders with the relevant statement(s).
Sanctions
Employees can commence proceedings against their employer for contraventions of Australian workplace laws. Depending on the nature of contravention, the Fair Work Ombudsman may commence proceedings against the employer and ‘any person involved in the contravention’ (which may include directors, human resource manager(s) and in limited circumstances, external accountants).
Fair Work Act Changes and The Impact on Corporate Immigration
There have been significant changes to the Australian employment law landscape, particularly with the introduction of Closing Loopholes Act 2023 and Closing Loopholes No. 2 Act 2024. The following are most relevant for businesses employing foreign nationals:
- Fixed-Term Contracts: Since 6 December 2023, fixed-term contracts cannot be longer than two years (which includes extensions and renewals). Employers also cannot offer consecutive contracts where the contracts are mainly for the same work and there is substantial continuity in the employment relationship. The legislation sets out the narrow circumstances in which the limitations won’t apply. Before a fixed-term employee is hired, the contract and circumstances should be reviewed to determine whether an exception applies. Where an exception doesn’t apply, a bespoke employment contract should be drafted to ensure the engagement is lawful. This is particularly relevant for subclass 482 visa holders.
- Right to Disconnect: Since 26 August 2024, eligible employees have had the right to disconnect. This means employees who refuse to monitor, read or respond to contact/attempted contact outside their working hours are protected from adverse action, provided their refusal is reasonable. An employee's refusal and whether such refusal is reasonable will be decided on a case-by-case basis.
- Wage Theft: From 1 January 2025, employers will commit a criminal offence where they are required to pay an amount to an employee (under the FW Act or an industrial instrument) and they intentionally engage in conduct that results in a failure to pay those amounts on or before the day they’re due to be paid.
Preparing for the Future: Strategic Workforce Management in a Changing Legal Landscape
To avoid disruptions in hiring, employers should review current workforce plans and procedures, in consultation with trusted legal advisors, and monitor updates from the Department and any further amendments to the FW Act. The current legal environment highlights the importance of taking an integrated approach to migration and employment law. Employers are encouraged to stay proactive, seeking regular updates on regulatory changes and consulting with legal advisors specialising in both areas. As migration and employment law continue to evolve, businesses can benefit from staying informed and preparing early to ensure compliance and seamless workforce management.
