Backpacker’s –  Know Your Working Rights !

 

“employers should always assume that overseas backpackers have the same rights as residents or citizens, unless there’s a clear contrary provision”.

The working holiday visa system: visa subclass 462 and 417

Both the 462 and 417, are for persons between the ages of 18 and thirty. The 462 visa is called a “Work and Holiday” visa, and a 417 a “Working Holiday” visa.

The relevant difference is that a 462 visa is limited to one year in duration, while a 417 visa can be renewed for a further year, subject to conditions.

Reported exploitation of backpackers in rural areas

The practical difference between the 462 and 417 subclasses of visa is not so much the duration of each, as that 417 visa-holders wanting to renew must demonstrate that they have worked at least 88 days in the initial year. Consequently, these people may be anxious to reach this target of recorded working days.

This “potentially” makes backpackers vulnerable to exploitation by unscrupulous employers.

People who are in Australia are subject to the laws of Australia

A fundamental principle of international law is that people lawfully present in a country are subject to the laws of that country. And this means that the laws of Australia – notably employment laws – apply to backpackers just as they do to Australian citizens.

Payment and benefits of backpackers under Australian law

Overseas backpackers working legally are entitled to pay and benefits as though they were Australian citizens. These include:

  • being paid in accordance with the relevant Modern Award (consult Fair Work Australia’s online Award Finder if you don’t know what a Modern Award is or which one applies)
  • having the employer pay an amount equivalent to 9.5% of gross pay into a complying superannuation fund if the backpacker earns more than $450 per month
  • the protection of workplace health and safety laws (as in each state)

The employer of “Backpackers” has the obligation to:

check personally that a potential backpacker employee has the right to work in Australia, and be satisfied to how long that right will last. This means either an appropriate visa or evidence of Australian citizenship or residency and (in all cases) a tax file number.

Significant penalties for allowing a person to work illegally

It is an offence under the Migration Act 1958 for someone to knowingly or recklessly permit a person to work illegally.  An employer cannot insulate them self from some illegality by, in effect, looking the other way.

Deliberate or reckless employment of illegal workers is punishable by imprisonment for up to two years, which rises to five if you knew that the worker was, in addition, being exploited.

Even an innocent mistake can carry a fine, and there’s nothing like a hefty fine to focus your attention, the maximum being around $15,000 for an individual or $80,000 for a company. The only defence an employer has is to show the he or she took reasonable steps to inform themselves of the backpacker’s entitlement to work.

It is equally important to emphasise documentation in relation to all requirements, starting, of course, with the eligibility to work, whether that is Australian citizenship/residency, or a suitable visa. Other obligations are:

  • to pay according to the Award (or an Enterprise Agreement, if your business has one) and to provide employees with pay slips
  • to withhold tax – in early December 2016 the backpacker tax rate was set at 15%
  • to make superannuation contributions (see above)
  • to provide employees with the benefits of the National Employment Standards under the Fair Work Act 2009. 

There are of course exceptions in relation to casual employees, and many backpackers will fall into this category.

Making deductions from an employee’s pay

It is permissible to make deductions from pay for things such as meals and accommodation, but any such arrangement must be documented before it is implemented.

And, if this need be said, the monetary value attached to such benefits must be generally in line with commercial values in the locality in question.

The website of the Fair Work Ombudsman is a good source of information, and the ATO website is also useful. Simply put -employers should always assume that overseas backpackers have the same rights as residents or citizens, unless there’s a clear contrary provision.

 

BSG Lawyers

Mark Quaglia

Solicitor
mark@bsglawyers.com

www.bsglawyers.com