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Adelaide Bubble Tea Store Incident of 29 January: Employee Rights as an Overseas Worker

 

On the evening of 29 January 2021, a woman was assaulted by a man over a purported pay dispute at an Adelaide bubble tea store in Chinatown.

It was alleged that the woman was not paid for working shifts at the store and demanded payment from her employer.  It was then alleged by the employer that she was not entitled to be paid $10 an hour (which is below minimum wage) because she was a trainee.

Many overseas workers are not aware of their rights and obligations when working in Australia.  Australian workplace laws provide basic protection and entitlements for all workers in Australia including workers from overseas, such as international students and temporary visa holders.

Some facts that you should be aware of as an overseas worker include:

  • All workers are entitled to be paid the correct pay rate for time worked. This includes probation or trainee shifts.  These rights cannot be taken away by contracts or agreements.  Pay rates and workplace conditions are set by various awards and legislation, and in some instances by enterprise agreements.
  • Employers are required to withhold tax from employee wages, pay superannuation and pay Work Cover levy for certain employees. Failure to do so can have serious implications for the employer.
  • If you are working in Australia, you must have a valid visa with work rights included.
  • Employers do have the right to check their employees’ rights to work in Australia. They may ask to see your passport or other identification or ask you to sign a VEVO authorisation form to verify information.
  • If you are a student visa holder, you are entitled to work 40 hours per fortnight during school/university terms when your course is in session and full-time during school/university holidays.
  • Also, if you are a bridging visa holder, you are entitled to work according to the working conditions of your previous visa. For example, if you held a visitor visa before applying for a student visa, you will not be allowed to work on a bridging visa.  However, if you held a temporary graduate visa before applying for a skilled visa, you will be allowed to work on a bridging visa.  There are exceptions to this rule.
  • If you hold a temporary visa with work rights and have not complied with your visa conditions due to workplace exploitation, the Department of Home Affairs will generally not cancel your visa, detain or remove you from Australia if you have:
    • Sought advice or assistance from the Fair Work Ombudsman and you are assisting them with their inquiries;
    • Not complied with the work-related conditions only and there is no other basis for visa cancellation; and
    • Committed to abiding by visa conditions in the future.
  • Finally, only the Department of Home Affairs can grant, refuse or cancel visas. An employer cannot cancel an employee’s visa.

For more information about your rights and obligations as an overseas worker, contact one of our friendly staff at Bambrick Legal today.