The People in Dairy
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Hiring people from overseas (updated May 2017)

Overseas workers are entitled to the same entitlements as Australian workers including pay rates which correspond to the classification in the Pastoral Award 2010, overtime and penalty rates and superannuation. Read more about pay rates 

Unfair and unlawful dismissal laws also apply as do discrimination laws and work health and safety laws.

Australian taxation laws apply but there are differences which depend upon whether the overseas worker is defined as an ‘Australian resident’.  For further information about tax and overseas workers (inc. case study examples) see our overseas workers taxation fact sheet

Work rights

Employers considering employing non-Australian citizens or permanent residents (e.g. working holiday makers) should be aware that some visas prevent or restrict the right of a person to work in Australia. Every worker from overseas must have a valid Australian visa with work rights. 

Illegal workers are non-Australian citizens who are working in Australia without a visa, or who are in Australia lawfully but working in breach of their visa conditions. Work means any activity that normally attracts remuneration. In other words, even unpaid workers will be considered to be working if their work would normally attract remuneration.

Employing an illegal worker is a criminal offence

Employers are responsible for checking all workers’ rights to work in Australia. It is an offence under the Migration Act 1958 to knowingly or recklessly allow workers to work, or to refer workers for work, where those workers are from overseas and either illegally in Australia or working in breach of their visa conditions.

Importance of checking work rights

People found working without a valid visa can be removed from the workplace without notice to their employers. To avoid the disruption and loss of investment caused by the sudden removal of an employee and the potential for criminal charges, employers should check the work entitlements of new employees.

Employers are responsible for checking all workers’ rights to work in Australia. If employees or job applicants refuse to cooperate, they should be told they will not be employed until such checks have been satisfactorily completed or until their entitlement to work can be verified.  

Employers should check the work entitlements of all job applicants. If employers check the work rights of all employees and applicants, they will be in a better position to defend allegations of breaches of the racial discrimination legislation by prospective employees who object to questions relating to their origin.

Checking a prospective employee's entitlement to work in Australia

Work rights can be checked by asking to see a person’s passport or other evidence of Australian citizenship, such as a birth certificate or certificate of citizenship, as well as appropriate photo identification. 

The free Visa Entitlement Verification Online (VEVO) service is the safest and easiest way to check work entitlements of all new workers from overseas, providing you with current visa information. You may also like to read the do your employees have a valid visa to work in Australia? booklet.

Employers who do not have immediate access to fax or email have a period of 48 hours in which to conduct any checks.

Providing these checks are initiated within 48 hours of an employee starting work and the employer does not know the person is an illegal worker, the Department of Immigration and Citizenship has said that they will not be referred for prosecution, even if the employee turns out to be an illegal worker. Employers relying on the 48-hour checking period will need to have records of the date and time when the employee started work to enable calculation of the 48-hour period.

Employers who discover an employee is an illegal worker must end the working relationship immediately.

How often to check?

Australian citizens and permanent residents need 1 single check at the time of employment. Temporary visa holders must be rechecked to ensure that no changes to their immigration status have occurred. It is advisable for employers to check on VEVO every 3 months.

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Visas

Employer Sponsored Visas

There are a number of visa options for lawfully operating Australian employers to sponsor and employ skilled workers who have recognised qualifications and skills or experience in particular occupations required in Australia. These include:

Temporary Work (Skilled) visa (subclass 457) allows employers to sponsor approved skilled workers to work in Australia on a temporary visa for up to four years. A business can sponsor someone for this visa if they cannot find an Australian citizen or permanent resident to do the skilled work.

- Regional Sponsored Migration Scheme visa (subclass 187) is for skilled workers who want to work in regional Australia. It is part of the Permanent Employer Sponsored Visa program & is a permanent resident visa. Applicants can be in or outside Australia when they apply.

- Dairy Industry Template Labour Agreementdairy farmers now have the opportunity to recruit senior farmhands under the Temporary Work (Skilled) visa program (457). These people were previously ineligible for 457 visas because they were not regarded as being skilled workers.

Senior Farmhands can now be employed under a Dairy Industry Template Labour Agreement (26 pgs) which is a formal agreement between the individual farmer and the Department of Immigration and Border Protection. The visa obtained under the Labour Agreement lasts for up to 4 years, with the possibility of an extension. 

At this stage, there is no formal pathway to permanent residency but this is something Dairy Australia will be working with the Department of Immigration and Border Protection to achieve in the future - read the UPDATED: Labour Agreement FAQs 

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Application for a Labour Agreement (Updated May 2017)

Individual farmers who are seeking to engage overseas workers under the Labour Agreement must make a formal application to the Department of Immigration and Border Protection. 

Download: 
Business case proforma (March 2016 version),
UPDATED: Labour Agreement FAQs and
 
- UPDATED: Labour Agreement - tips for completing Business Case proforma 
- NEW: Dairy Industry Labour Agreement information sheet (May 2017)

We also have a skills recognition sheet and employment letter of offer template, plus the Department of Immigration and Border Protection UPDATED: Information about Requesting Labour Agreement booklet (May 2017) 
See below for more resources.

Nomination

Once the Application for a Labour Agreement has been approved, you can proceed to nominate an overseas worker. You can complete this process online at www.border.gov.au/Trav/Visa-1/457-

The worker will lodge a visa application separately online. Fees applyFor more information, visit www.border.gov.au/Trav/Work/Skil

Working Holiday Makers

To meet the seasonal nature of work on dairy farms, it may be worth considering working holiday makers for short-term employment.

The working holiday maker program is a cultural exchange program which allows visa holders to supplement their holiday funds through short-term work. Working holiday maker visa holders can work full-time during their 12-month stay in Australia but are limited to a maximum of 6 months’ work with any one employer.

- Working holiday visa (subclass 417) is for young people who want to holiday and work in Australia for up to a year, encouraging a cultural exchange and closer ties between Australia and eligible countries. Working holiday visa holders who performed ‘specified work’, in an eligible regional Australian area for a minimum of three months (88 days) while on their first working holiday visa may be eligible for a second working holiday visa. 

  ‘Specified work’ includes (among other things) general maintenance crop work, harvesting and/or packing fruit and vegetable crops and immediate processing of animal products.              

- Temporary work and holiday visa (subclass 462) encourages cultural exchange and closer ties between Australia and eligible countries by allowing young adults (18-30) to have an extended holiday during which time they may engage in short term work or study.

- Special Category visa (subclass 444) is a temporary visa which allows New Zealand citizens to stay and work in Australia, as long as they remain a New Zealand citizen.           

Read more about employing backpackers - download our backpackers - what to pay them fact sheet.

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Resources

General Information Format
Pay rates
web page
Overseas workers taxation fact sheet PDF
Visa Entitlement Verification Online (VEVO)
web page (external)
Do your employees have a valid visa to work in Australia?
PDF
Backpackers - what to pay them PDF
Training benchmarks fact sheet (Dairy Australia) PDF 
Training benchmarks (Commonwealth law) PDF
Labour Agreement - Updated May 2017
Dairy Industry Template Labour Agreement (26 pgs)
PDF
NEW: Dairy Industry Labour Agreement information sheet (May 2017) PDF
UPDATED: Labour Agreement FAQs (May 2017)
PDF
- Business case proforma March 2016 version
Word template
- Employment letter of offer template Word
- Skills recognition fact sheet PDF
UPDATED:Labour Agreement tips for completing Business Case proforma 
  (May 2017)

PDF
- NEW: Summary of Domestic Recruiting Efforts (see tips doc. above)
PDF (online)
- Position Description (Schedule 4 in Labour Agreement template) PDF
- UPDATED:Information about Requesting Labour Agreement 
  (May 2017) Dept. Immigration & Border Protection booklet
PDF
Visa Subclass Resources  
Regional Sponsored Migration Scheme visa (subclass 187) PDF
Temporary Work (Skilled) visa (subclass 457) PDF
Working Holiday visa (subclass 417) PDF
Temporary Work and Holiday visa (subclass 462)
PDF
Special Category visa (subclass 444) PDF
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