Migrant Workers and Visa Holders – know your employment rights!

Please note that this is general information and may not be relevant to your particular matter. This should not be taken as legal advice. 

National Employment Standards  

The National Employment Standards (NES) are 11 minimum employment entitlements that have to be provided to all workers in the national workplace relations system. All workers in Australia are national workplace relations system workers unless they are self-employed or work for a government body. Australian workers, including visa holders, migrant workers, and Australian citizens are entitled to the same National Employment Standards.  

National Employment Standards set out minimum entitlements in relation to the following: 

• Maximum weekly hours of work 
• Minimum rates of payment 
• Requests for flexible working arrangements 
• Parental leave and related entitlements 
• Community service leave 
• Annual leave 
• Personal/carer’s leave, compassionate leave and family and domestic violence leave 
• Long service leave 
• Public holidays 
• Notice of termination and redundancy pay 

You can find more information on each of the standards via this link: https://www.fairwork.gov.au/employment-conditions/national-employment-standards#nes-entitlements  

When you start a new job, your employer is required by Australian workplace laws to provide you with a copy of a Fair Work Information Statement, which is a document with important information about your rights at work.

You can find the Fair Work Information Statement via this link: https://www.fairwork.gov.au/sites/default/files/migration/724/Fair-Work-Information-Statement.pdf  

If you are a casual worker, your employer is also required to provide you with a copy of the Casual Employment Information Statement, which has important information about what it means to be a casual worker and how you can become a permanent worker.

You can find the Casual Employment Information Statement via this link: https://www.fairwork.gov.au/sites/default/files/migration/724/casual-employment-information-statement.pdf  
 

Visa Working Requirements 

It is important to check the requirements of your visa to confirm if you are allowed to work in Australia, and any conditions your visa may have. For example, some visas require minimum working hours to be completed each week, while some visas set a maximum of hours that can be worked each week. Regardless of what your visa requirements are, you are still entitled to the National Employment Standards.
 

You should contact a registered Migration Agent if you have questions about your visa conditions. The Office of the Migration Agents Registration Authority (OMARA) website has a list of registered Migration Agents at the following link:
https://portal.mara.gov.au/search-the-register-of-migration-agents/
 

You can check the working conditions of your visa at the following link: https://online.immi.gov.au/evo/firstParty?actionType=query  

Workplace Exploitation  

Migrant workers are at a higher risk of experiencing workplace exploitation. This is because of a number of factors including fear of loss of income, lack of knowledge about Australian workplace laws, and fear of possible immigration consequences if they report breaches of Australian workplace laws. Some high risk industries with high rates of migrant exploitation are construction, agriculture and hospitality.  

Workplace exploitation involves employers not complying with the minimum legal entitlements of their workers. Some signs of workplace exploitation include the following: 

• An employer putting pressure on you to work more than the conditions of your visa allow. 
• An employer asking you to pay them money to employ you, or to pay them for a Working Visa. This is against the law. 
• Withholding your passport or personal items. 
• Failing to provide you with payslips or pay your minimum entitlements. 

• Employers promising permanent residence in Australia. An employer cannot guarantee this. Only the Department of Home Affairs can grant permanent residency to a Visa Holder. 
• Requiring you to get an Australian Business Number (ABN) when you are not running your own business. You can find more information about when it is appropriate to have an ABN in our factsheet on sham contacts.  

What is the Assurance Protocol? 

Migrant workers are often concerned that they will lose their visa if they report their employer’s conduct when it falls below the National Employment Standards. The assurance protocol is an arrangement between the Department of Home affairs and the Fair Work Ombudsman (FWO) to support visa holders who approach the FWO for help if they have breached their work-related visa conditions because of workplace exploitation.  This protocol was set up to encourage migrant workers to seek help when being exploited without the fear of their visa being cancelled.
 

The following Visa subclasses are eligible for the Assurance Protocol: 

• Subclass 500 – (Student Visa) 
• Subclass 417 (Working Holiday Visa) 
• Subclass 462 Work and Holiday Visa  
• Subclass 457 (Temporary Work (Skilled) Visa  

• Subclass 482 (Temporary Skill Shortage (TSS) Visa 

Further Resources 

For more information on your rights as a Migrant Worker, please visit https://immi.homeaffairs.gov.au/visas/working-in-australia/work-rights-and-exploitation  

For more information on Wage Theft, please visit:
https://wwcsa.org.au/campaigns/ending-wage-theft/  

For more information about when it is appropriate for a worker to have or use their ABN in the workplace, please visit: How to spot a Sham Contract in a Job Advertisement. – Working Women’s Centre | Working Women’s Centre (wwcsa.org.au)