What employment rights do visa workers have?

The contents of this blog post were originally created as an interactive quiz for Victorian Law Week 2022. We have replicated this quiz in plain text format here for posterity.

May 29, 2022

Q1. Migrant and visa workers are not protected by Australian employment law. True or false?

Options:

1. True
2. False

Answer:

False. All workers in Australia, including migrant and visa workers, are protected by Australian employment laws. This includes:

• laws around minimum wages, superannuation and leave entitlements
• protection against discrimination, bullying and harassment
• the right to engage in workplace activities including joining or not joining unions, and raising workplace concerns
• and much more!

We know that migrant and visa workers may not always be aware of their workplace rights, so we work closely with community groups to educate and inform their communities.

You may also be interested in our multilingual resources.

Q2. A 2017 report into wage theft in Australia found what percentage of temporary migrant workers reported earning $15 per hour or less?

Options:

1. 10%
2. 27%
3. 46%
4. 55%

Answer:

The 2017 ‘Wage theft in Australia: Findings of the National Temporary Migrant Work Survey’ report found that 46% of survey participants earned $15 per hour or less. Almost a third (30%) of survey participants earned $12 per hour or less.

At the time of the survey, the Australian minimum wage was $18.29 per hour. As of May 2022, it is $20.33 per hour.

If you or someone you know has been underpaid, there are a number of things you can do.

1. Write a letter of demand to your employer. JobWatch has templates on our website.
2. Talk to the Fair Work Ombudsman to see if they can help you recover your entitlements.
3. For claims under $20k, pursue a claim through the small claims procedure at the Federal Circuit & Family Court of Australia or Magistrates Court. You have 6 years to do this. Claims over $20k have a different procedure.

Call JobWatch’s Telephone Information Service on 1800 331 617 (Regional VIC, QLD, TAS) or 03 9662 1933 (Melbourne Metro) for further information about how to recover your pay.

Q3. If an employee gets paid cash-in-hand with no timesheets or payslips, they have no way of proving what money is owed to them. True or false?

Options:

1. True
2. False

Answer:

False. Legally, all employees in Australia should be provided with a payslip within one day of being paid, even if they are performing cash-in-hand work. However, if they have not received a payslip and their employer is unwilling to provide a payslip, the employee can still keep their own records.

By using mobile apps like the Fair Work Ombudsman’s Record My Hours app, and keeping their own records of hours worked, pay received, and any correspondence including text messages and emails, an employee can prove that they are owed money for their work.

These records can then be used when claiming underpayments. An employee has up to six years, from the date of the wages being due and owing, to file a claim for their underpayments through the court system.

Q4. If a migrant and visa worker can’t afford to pay for a lawyer or doesn’t speak English as their first language, there’s no point in trying to take legal action. True or false?

Options:

1. True
2. False

Answer:

False.

There are many not-for-profit legal services available to help migrant and visa workers with their legal issues. This assistance can range from providing you with legal information, to once-off advice and representation in court. You can find a list of Victorian community legal centres here.

Specifically, JobWatch helps migrant and visa workers with their rights at work. Our services are free and confidential, and we can arrange for interpreters if you require one. Call JobWatch’s Telephone Information Service on 1800 331 617 (Regional VIC, QLD, TAS) or 03 9662 1933 (Melbourne Metro) for assistance.

Q5. Abdul is experiencing race discrimination at work, and it is affecting his mental health. Abdul works in Victoria. What can he do?

Options:

1. Talk to a manager or HR at his work and/or make a formal complaint at work
2. Seek help from his union representative
3. Make a complaint to the Victorian Civil and Administrative Tribunal OR to the Victorian Equal Opportunity and Human Rights Commission OR to the Australian Human Rights Commission
4. Call JobWatch for legal assistance
5. All of the above

Answer:

All of these things are actions Abdul can do to address his experience of race discrimination at work – he can choose to do one or some of these things! There are time limitations on making some of these complaints (e.g. 6 months to the Australian Human Rights Commission), so it’s important that Abdul seeks professional legal information quickly.

He can call JobWatch’s Telephone Information Service on 1800 331 617 (Regional VIC, QLD, TAS) or 03 9662 1933 (Melbourne Metro) for initial legal information about his rights at work when experiencing race discrimination.

Note – If Abdul loses his job because of the race discrimination, he could look into making an Unfair Dismissal or General Protections Dispute – Termination claim at the Fair Work Commission. However, this has a short timeframe so he needs to make sure that he files the claim within 21 days of being dismissed.

End of the form:

Thank you for completing our quiz, ‘What employment rights do visa workers have?’

Studies and surveys have found that migrant and visa workers are more vulnerable to exploitation in the workplace, due primarily to a lack of understanding about Australian employment laws, a distrust of government complaint bodies, and grasp of the English language.

As a not-for-profit employment law specialist, JobWatch is here to help all migrant and visa workers with their rights at work.

We offer multilingual resources on our website in ten different community languages.

We also run an International Students Employment and Accommodation Legal Service with project partners where we specialise in assisting international students in Victoria with their rights at work.

Call JobWatch’s Telephone Information Service on 1800 331 617 (Regional VIC, QLD, TAS) or 03 9662 1933 (Melbourne Metro) for initial legal information relevant to your situation, and referrals to free legal representation through our legal practice and ISEALS.