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Ask Maddy: your visa rights at work

Ask Maddy: your visa rights at work

Madeleine Harradence, Assistant Secretary of ANMF (Vic Branch)

If you are working as a nurse, midwife or carer on a visa, it is important to know your employer’s obligations as a sponsor, and your rights as a sponsored employee.

What cost obligations does my employer have as a sponsor?

If your employer is your approved visa sponsor, they must pay all costs associated with becoming a sponsor, as well as:

  • cost of sponsorship and nomination charges
  • migration agent costs associated with the lodgement of sponsorship and nomination applications
  • the nomination training contribution charge (Skilling Australians Fund Levy)
  • migration agent fees or legal fees associated with sponsorship monitoring
  • administrative costs and any sundry costs an employer incurs when they conduct recruitment exercises, including:
  • recruitment agent fees
  • the cost of job advertising
  • screening of candidates, short listing, conducting interviews and reference checks
  • salaries of recruitment or human resource staff
  • the cost of outsourcing background checks, police checks and psychological testing if these relate to an employer determining an applicant’s suitability for the position
  • training of new staff
  • responding to queries for prospective candidates and advising unsuccessful applicants

Does my employer have to pay for my visa related travel costs?

Yes. Your employer must pay for pre-agreed costs that are related to attracting you as a potential primary sponsored person, such as paying for airfares to Australia, visa application costs and moving assistance.

If I resign or my employment is terminated, can my employer deduct visa related costs from my pay?

No. If your employment with your sponsor ends at any point, not only do you not have to repay any of the money your employer spent on your sponsorship, but your employer cannot deduct costs from your pay. Sections 324 and 325 of the Fair Work Act 2009 (Cth) prohibit your employer from making unreasonable or unpermitted deductions from your pay. Therefore, your employer cannot deduct visa costs from your pay, as this this would be considered unpermitted given it is prohibited by law.

If you cease employment with your sponsor, you have 60 days to find a new sponsor and a new nomination must be lodged by the new employer. Once this nomination is approved, it can be linked to your 482 visa.

But what if I already signed a contract agreeing to have visa related costs deducted from my wage?

Your employer cannot contract out of the legal minimum entitlements set out in the National Employment Standards (NES), Awards, Enterprise Agreements or any relevant Acts. That means your employer can’t provide for less than the legal minimum entitlements, even if your contract says otherwise.

When it comes to visas, the Migration Act 1958 (Cth) and Migration Regulations 1994 set out rules your employer must legally follow. Regulation 2.87 outlines an obligation for a person who is an approved work sponsor (your employer) to not take any action to transfer or charge visa related costs to you.

So, your employer must pay these costs, even if you previously agreed to paying them. For example, if you signed a contract agreeing to pay visa related costs and these are deducted from your final wage, your employer has failed to comply with migration laws.

Case study

When a member sponsored by a large private hospital on a Temporary Skill Shortage visa (TSS) (subclass 482) resigned, her employer sought to withhold over $2,500.00 from her final pay, claiming she was contractually required to repay accommodation and relocation costs associated with her visa.

ANMF wrote to the member’s employer on her behalf contending the employer had breached migration regulation requirements which prohibited them from charging these costs to our member. The employer agreed to cease the action they were taking to have our member repay costs and she was able to move on to start her new job without having to repay any costs.

If you have queries regarding your visa or suspect your employer is not meeting their sponsorship obligations, you can call the Department of Home Affairs on 131 881.