A string of recent cases demonstrate the Fair Work Ombudsman’s (FWO) heightened focus on compliance with employment and visa conditions for foreign workers. Most significantly, in the largest-ever court-imposed fine for a breach of 457 visa sponsorship obligations, the Federal Court handed down a pecuniary penalty of $175,000 to Choong Enterprises Pty Ltd, for systematic underpayment of Filipino workers. The company has been directed to back-pay the employees a total of $125,956.
FWO’s emphasis on foreign workers is a result of the Independent Review into the 457 visa programme earlier this year. In response to the Review, the Federal Government announced that the FWO would play an increasingly prominent role in monitoring and enforcing compliance in relation to overseas workers.
FWO has accepted this role with vigour. Some recent examples of underpayment claims involving foreign workers include:
- An underpayment claim totaling $35,900 of Chinese nationals on 417 visas in an Adelaide fast food takeaway shop.
- Underpayment of $4,200 to an overseas worker employed by a small retailer in NSW. Due to a history of underpayment claims the business will face potential penalties of up to $51,000 for the company and $10,200 for the owner.
- Underpayment of $5,573 by a prominent fast food restaurant to a Korean worker on a 417 visa. Owners of the business will be required to undertake compliance training as part of an Enforceable Undertaking in addition to back payment of the wages.
FWO is not just targeting underpayments; visas which allow foreign visitors to work in Australia each come with their own unique set of conditions which must be complied with.
457 Temporary Work (Skilled) Visa
- Holders of this class of visa must work for the approved sponsor in a position compliant with the nominated role they elected when applying for their visa, and at least at their nominated salary
- Workers must also not cease work for more than 90 days
417 Working Holiday/462 Work and Holiday
- Workers holding these classes of visas must not work for one employer for more than six months
- Employers should note that this applies to workers engaged on a casual on-hire basis. This means that even if a worker is strictly the employee of an on-hire company, they are still prohibited from working at one business (i.e. an end-user client) for longer than six months
573 Higher Education Sector Visa
- These visa holders cannot work more than 40 hours in any given fortnight whilst their course is in session
- Only outside the advertised course session are employees permitted to work full time hours
What does this mean for Standard Business Sponsors?
Businesses should be mindful of the conditions which may apply to visa holders, in addition to all usual employment entitlements. The FWO has taken on its monitoring role robustly and, as has been demonstrated, contraventions in relation to foreign workers will not be viewed lightly.
FCB Smart Visa will continue to provide the most up to date information on future changes. To discuss any concerns you may have regarding your sponsorship obligations, please contact an FCB Smart Visa migration agent on (02) 9922 5188.
