Employing workers on a visa: What you should know

By its very nature, the retail and hospitality sectors can attract a transient workforce – students seeking part-time work or tourists looking to spend some time in an area and earn some money at the same time.

And for small business owners, this source of labour can be a vital one.

However, if you employ non-Australian passport holders in your small business, you need to ensure they have the rights to work in Australia. Here’s some of the things you need to know.

Checking employees’ visa status

“As part of your recruitment process, you should run a number of checks on a potential employee,” says Ariel Brott, principal lawyer at Global Mobility Immigration Lawyers.

“Once you have verified their identity, and you have their consent, you can run an immigration check,” he says.

“There’s a government website called VEVO, which enables businesses to check the working rights of non-Australian passport holders.

“If you have their consent and their passport details, you can look up this register and determine whether this person actually has the right to work.”

And checking the immigration status of employees shouldn’t be a one-off. Rather, Brott advises it should be something you do periodically.

“Things can change, visas expire or are cancelled, rights may have been altered – all sorts of things can happen. So, make sure you check, on what would be deemed a reasonable basis.

“For example, if a visa was going to expire in a month, it might be reasonable to check after three weeks.

“If it had three years left, it might be reasonable to check every few months.”

Brott says that, as a business owner, you should keep a record of the initial check and records to prove you’ve re-checked over a reasonable period of time. Keep soft copy screenshots or hard copy print outs – or both.

So, what are the common types of visas small business owners may encounter in prospective employees? And what exactly do they give the holder the right to do?

Employing someone with a working holiday visa

The working holiday visa carries with it the right to work while the holder is in Australia, with some restrictions.

“The main restriction to be aware of is that they’re usually only supposed to work for any one employer in any one location for up to six months,” says Brott.

The key thing if you’re employing someone on a working holiday visa, says Brott, is to have a chat about the future as you move to the end of that six-month period.

“If you want to keep them on longer, you could seek further advice about how that might be done – it could mean changing visas or there could be another way.”

Employing someone with a student visa

Overseas students usually have a visa that permits them to work for the duration of their studies, however, this is limited.

“Most students have a work condition that restricts them to 40 hours of work per fortnight while semester’s in session,” says Brott. “Outside of the semester, they have unlimited work rights.”

While this is the most common scenario, Brott reiterates the need to check.

“Not all students are subject to the same conditions, so check before you take someone on.”

Sponsoring an employee’s visa

Of course, someone on a temporary visa may make such an impression on your business that you want them to stay. Or you may find the perfect recruit who doesn’t have the rights to work in Australia. If so, you may consider sponsoring their visa.

For an employer to sponsor the visa of an employee – or potential employee – their occupation must be on the list of eligible occupations.

“You may find a chef who’s fantastic and you want to keep them in your business, for example,” says Brott.

“You could apply to sponsor them, but if you do, you take on some additional responsibility.”

If you’re applying to sponsor someone, the business first needs to be approved as a sponsor and then demonstrate the need for the sponsored employee.

“You’ll need to show that you’re a legitimate business that’s actively operating. You’ll typically need to show that you are solvent, and have the funds required in order to meet the salary you’re proposing.

“You will also need to prove the salary you’re proposing is the market rate, and you’re not undercutting local labour or exploiting foreign labour. You’ll also usually need to show that you’ve advertised for the role and can’t find anyone suitable in the local labour market.

“There are a lot of little hoops to jump through.”

What happens if you breach visa conditions?

A whole host of consequences may await if you employ someone without a valid visa or have someone performing a role different to the one they were sponsored for.

“First-time offences would typically be dealt with by a formal warning and some education,” says Brott.

“After that, a formal infringement notice may be served, which would carry with it a fine of up to around $19,000.

“Beyond that, there are civil penalties, up to around $100,000 for a company where an offence is deemed reckless or intentional. A criminal offence can carry a fine of up to $130,000 and a prison term, while aggravated criminal cases, can lead to several years’ imprisonment and fines for companies of over $300,000.”

If you’re considering employing someone on a visa, it’s always best to seek independent legal advice that’s tailored to your situation.