Employers who wish to sponsor skilled employees from overseas are, in summary, required under the subclass 457 scheme to provide terms and conditions which are at least equivalent to those which an Australian citizen or permanent resident would achieve performing the same work at the same location. This is an ongoing requirement not least because it is a 457 sponsorship condition, and severe sanctions can result in non-compliance. Its primary purpose is to prevent the undercutting of the local Australian labour market, protect overseas employees from exploitation, and maintain integrity in the scheme.
In Australia, the employment relationship is governed or affected by a number of different parameters, all of which are variable depending upon the circumstances:
- Applicable Federal, State and/or Territory legislation: These include the Fair Work Act 2009 (Cth). The Fair Work Act establishes the National Employment Standards.
- Industrial instruments: There are various awards and statutory agreements / enterprise agreements which may impact upon the minimum terms and conditions with which an employee must be provided (for example by amending or adding to the National Employment Standards, and setting minimum wages for particular occupations).
- Contract of employment: This is agreed between the employer and the employee. Terms are both express and implied into the contract:
- Express terms: These are usually the written terms and conditions of the employment contract but may include terms and conditions which have been agreed verbally and also provisions of internal employment policies and any other terms (if they have been incorporated into the contract by reference for example).
- Implied terms: Terms can be implied into the employment relationship through custom, and the common law also implies terms into every employment relationship.
Importantly, the contractual terms cannot override or detract from legislation and so the contract needs to provide terms and conditions which are at least equivalent to the terms and conditions required by applicable law (referred to under points 1 and 2 above).
It is therefore important to be mindful of the tasks and functions of the occupation in question (and any changes from time to time which may alter the nature of the role), and the minimum requirements which are prescribed by the law for that particular occupation.
In addition, the obligation upon 457 visa employer sponsors is broader in the sense that market salary rate conditions (not merely the requirement to pay a minimum wage) are also relevant, and market salary rates may fluctuate from time to time.
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The information provided in this article is provided by way of general information only. It does not constitute legal advice, and should not be relied upon as such. Specific independent legal advice should be obtained before deciding to act, or not to act, upon the views expressed or information contained in this article.
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