Employment Rights for International Students & Temporary Visa Holders

Australian workplace employment laws provide basic protection and entitlements for all workers in Australia, including workers from overseas, such as international students and temporary visa holders.

Pay Dispute Assault

On 29 January 2021, a woman was assaulted by a man over a purported pay dispute at an Adelaide bubble tea store. It was alleged that the woman was not paid for working shifts at the store and demanded payment from her employer. The employer then allegedly claimed she was not entitled to be paid $10 an hour (which is below minimum wage) because she was a trainee.

Under the Fair Work Act 2009 (Cth), all workers, including trainees, are entitled to minimum pay rates set by Modern Awards and the National Employment Standards (NES). Employers who fail to comply risk investigation and penalties from the Fair Work Ombudsman.

Unfortunately, many overseas workers, such as international students and temporary visa holders, are unaware of their employment rights and obligations in Australia. As demonstrated by this incident, a lack of awareness can lead to serious challenges, including exploitation, unfair treatment, and even abuse in the workplace. Addressing these issues requires a collaborative approach involving government agencies, employers, advocacy groups, and the workers themselves.

Employment Rights & Obligations: International Students & Temporary Visa Holders

All workers are entitled to be paid the correct pay rate for time worked. This includes probation or trainee shifts. These employment 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.

In Australia, the main sources of workplace rights include the Fair Work Act 2009, the National Employment Standards (NES), and relevant Modern Awards.

Employers are required to:

• Withhold tax from employee wages,
• Pay superannuation
• 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’ right 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 the information.

If you are a student visa holder:

• You may work up to 40 hours per fortnight during study periods

• You may work full-time during official school or university holidays

If you are on a bridging visa, your right to work depends on the visa you held prior:

• If you previously held a visitor visa, you are not allowed to work

• If you previously held a temporary graduate visa, you are allowed to work

It is important to remember that breaching work conditions (for example, working more than 40 hours per fortnight as a student) may affect your current visa and also future applications, such as skilled migration or permanent residency.

Exceptions

There are limited exceptions to the above rules. If you hold a temporary visa with work rights and have breached your visa conditions due to workplace exploitation, the Department of Home Affairs will generally not cancel your visa, detain you, or remove you from Australia, provided that:

• You have sought help from the Fair Work Ombudsman and are assisting them with their inquiries

• Your breach relates only to work-related conditions, and no other grounds exist for cancellation

• You have committed to following your visa conditions in the future

This means you should not be afraid to report workplace exploitation. Only the Department of Home Affairs has the authority to grant, refuse, or cancel visas, not your employer.

What To Do If Your Rights Are Breached

If you believe your workplace rights are not being respected, you should:

• Keep evidence – such as payslips, rosters, bank statements, text messages, or emails.
• Contact the Fair Work Ombudsman for assistance and investigation.
• Seek advice from a lawyer if your work conditions are affecting your visa status or future applications.
• Reach out to community legal centres or unions for additional support.

Contact Us

For expert guidance on employment rights for international students and temporary visa holders through a professional consultation, contact Bambrick Legal today:

• Schedule a professional consultation with our specialists here
• Call us on 08 8362 5269
• Like us on Facebook
• Follow us on LinkedIn

Please note: Our migration and citizenship consultations are provided on a fee basis.

Related Blog – Visa Work Rights & Unfair Dismissal: Lessons from Recent FWC Cases