McDonald Murholme is the leading employment law firm for employees located across Australia

Foreign Workers On 457 Visas

Australia is a nation of migrants and welcomes diverse cultures. Workplace laws are enforced to protect foreign workers in Australia and thus employers engaging foreign workers must ensure that they comply with both Australian workplace laws and immigration laws. In order to work in Australia, foreign workers must have a temporary long stay or permanent visa.

All people working in Australia, including foreign workers, are entitled to basic rights and protections in the workplace. 457 visa holders, migrant workers and international students have their rights and entitlements protected by National Employment Standards.

There are 10 minimum workplace entitlements under the NES:

  • 1. A maximum standard working week of 38 hours for full-time employees, plus ‘reasonable’ additional hours
  • 2. A right to request flexible working arrangements to care for a child under school age, or a child under the age of 18 with a disability
  • 3. Parental and adoption leave of 12 months (unpaid), with a right to request an additional 12 months
  • 4. Four weeks paid annual leave each year plus an additional week for certain shift workers (pro rata for part-time employees)
  • 5. Ten days paid personal / carer’s leave each year (pro rata for part-time employees), two days paid compassionate leave for each permissible occasion, and two days unpaid carer’s leave for each permissible occasion
  • 6. Community service leave for jury service or activities dealing with certain emergencies or natural disasters. This leave is unpaid, except for jury service which is paid for up to 10 days
  • 7. Long service leave
  • 8. A paid day off for public holidays, except where reasonably required to work
  • 9. Notice of termination and redundancy pay
  • 10. The right for new employees to receive the Fair Work Information Statement.

Should I make an application under the Fair Work Act 2009 (Cth)?

The Fair Work Act 2009 (Cth) protects employees against unlawful workplace practices which include unlawful discrimination or adverse action taken for a prohibited reason, such as exercising a workplace right or being underpaid.

Unlawful workplace discrimination occurs when an employer takes adverse action against a person who is an employee or prospective employee because of their race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion or social origin.

Further, employees cannot be subjected to adverse action because they exercise a workplace right. This may be a right to the working conditions described above, to workers compensation payments, or the right to make a complaint or commence proceedings.

Your employer cannot cancel your visa

Only the Department of Immigration and Border Protection can grant, refuse or cancel visas. Visa cancellation is not automatic in circumstances where a visa holder has breached their visa conditions. If you are under consideration for visa cancellation, you will have the opportunity to provide reasons as to why your visa should not be cancelled.

Under the 457 visa you are allowed to be unemployed for a period of up to 90 days. If you are not working whilst your claim is being processed, you will need to contact the Department of Immigration and Border Protection to ensure that you are not in breach of your visa conditions and do not face risk of deportation.

If you feel that you have been unfairly treated or exploited because you are a foreign worker, we recommend seeking legal advice.

McDonald Murholme provides successful legal strategies to foreign workers to ensure they are treated respectfully in the workplace at an affordable cost.

Call 03 9650 4555 to find out how McDonald Murholme can help you.

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