Employees
At common law an employee is a person who works under an employment contract which may be either verbal or written. An employee is always an individual (as opposed to a company or partnership) and their employment is regulated by state (WA) and federal industrial relations laws including, where applicable, awards. An employee does not have the right to control how and when work is performed and cannot delegate work to others.
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Workers deemed to be employees regardless of the common law definition
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Some laws such as workers compensation and superannuation laws as well as some taxation laws deem workers to be employees regardless of the common law definition. See topics on Superannuation and Independent Contractors to find out if someone may be considered an employee in these contexts. |
Employees may be engaged as permanent full-time employees, permanent part-time employees, casual employees or seasonal employees. It is important to understand the difference between these different categories as the various entitlements and responsibilities are different for each category.
Failure to categorise the employee correctly and therefore to adhere to legal and award requirements can lead to misunderstandings and possibly legal action for underpayment of entitlements and prosecution for breach of the award.
Permanent employees
Full-time
Permanent full-time employees work fixed hours each week and are entitled to various forms of paid leave such as annual leave, personal leave, long-service leave and parental leave. They are also entitled to notice of termination and to make a claim for unfair dismissal.
Part-time
Part-time employees are employed for fixed hours every week and depending on the number of hours worked have the same entitlements as full-time employees calculated on a pro-rata basis. If public holidays fall on days usually worked the employee is entitled to payment for that holiday. Part-time employees are also entitled to notice of termination and to make a claim for unfair dismissal.
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Casual employees
At common law, casual employees are employees who do not have regular or systematic hours of work or an expectation of continuing work. A typical casual employee is employed on a daily basis when the need arises. Casual employees are usually paid a loading to compensate them for lack of entitlements such as annual leave, personal leave and the lack of continuity of work. Casual employees are not usually entitled to notice of termination.
Unfair termination laws have for some time recognised the concept of regular casual employees.
The federal industrial laws provide for casual employees who are engaged on a regular and systematic basis and who have a reasonable expectation of continuing employment to make a claim for unfair dismissal providing they have served the minimum employment period.
Risk of engaging employees on casual basis rather than part-time
Employers who engage employees on a casual basis when their employment can be more accurately described as part-time, run the risk that the employee will bring an action for non-payment of entitlements such as annual leave and personal leave, which permanent employees are entitled to. Such claims have succeeded in the past despite the fact that a casual loading had been paid. Employees have up to six years to make a claim.
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Employees who work similar hours each week
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Employees who work similar hours each week, which are known in advance, should be hired as permanent employees, either full time or part time and paid the various entitlements. |
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Seasonal employees
Seasonal employees are engaged to perform work during a specified season with no expectation of continuing work once the season has passed. The season must be clearly identifiable, for example by weather or temperature, availability of the particular product or activity or marked by certain conditions such as festivities or other activities. For example, calving and harvesting.
Seasonal employees will usually be paid a loading to compensate for the loss of such entitlements as leave and notice. Under the federal industrial laws, seasonal employees are not entitled to notice of termination and if they are dismissed at the end of the season they cannot bring an action for unfair dismissal.
For more information about minimum entitlements see the National Employment Standards.
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Hiring people from overseas
Illegal workers
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.
Individuals who are convicted of these offences face fines of up to $13,200 and two years imprisonment while companies face fines of up to $66,000 per illegal worker.
These offences apply to employers, labour hire companies, employment agencies and other people who allow illegal workers to work or refer illegal workers for work.
You can only commit the offence of allowing an illegal worker to work if you have a direct legal relationship (e.g. a common law contract of employment / independent contractor agreement) with that person. If a worker is obtained from a labour hire company, the hire company remains the legal employer of the worker, the farm using the services of the worker will not be liable, unless it also has a separate legal relationship with that worker.
However, due to the serious nature of these offences and penalties, farmers employing labour from a labour hire firm should still insist on seeing evidence of work rights
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, 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 with this process they should be told that 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 the 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 Visa Entitlement Verification Online (VEVO) service is the safest, easiest and quickest way to check the work entitlements of all new workers from overseas.
VEVO is a free, internet-based system that allows you to check the work entitlements of a visa holder online. The service gives you current visa information and is available 24 hours a day, seven days a week.
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 who discover an employee is an illegal worker must end the working relationship immediately.
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.
How often to check
Australian citizens and permanent residents need one 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 a temporary visa holder on VEVO every three months.
Visas
The Department of Immigration and Citizenship (DIAC) has a number of visa options for overseas workers.
Employer Sponsored Workers
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.
The subclass 457 – Business (Long Stay) visa - Standard Business Sponsorship allows employers to sponsor approved skilled workers to work in Australia on a temporary visa. With this visa those people you employ from overseas can work in Australia for a period of between one day and four years.
The Employer Nomination Scheme (ENS) enables employers to sponsor highly skilled workers to fill skilled vacancies in their business. Skilled workers can be recruited either from overseas, or from people temporarily in Australia. Employers must be lawfully operating in Australia, and the position must provide full-time employment in Australia for at least three years and meet the Minimum Salary Level.The ENS visa is a permanent visa.
The Regional Sponsored Migration Scheme (RSMS) enables employers in regional and low population growth areas of Australia to sponsor highly skilled workers either from overseas, or from people temporarily in Australia to fill skilled vacancies in their business. Employers must be lawfully operating in Australia, and the position must provide full-time employment in Australia for two years. Conditions of employment and wages must comply with Australian legislation and awards.
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 six months’ work with any one employer.
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 (subclass 417) 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.
Holders of a second working holiday visa may return to work for a further six months for an employer with whom they worked on their first working holiday visa. This means that if you employed a working holiday visa holder for six months on their first working holiday visa and they successfully obtained a second working holiday visa, they would be able to return to your employ for another six months.
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Getting help with understanding employing overseas workers
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The National Farmers' Federation (NFF) have seconded an Immigration Liaison Officer from the Australian Department of Immigration and Citizenship. The officer can assist farmers with understanding their options around employing overseas workers and visa requirements.
Contact the officer:
Suzanne Gillham
Mobile: 0403 395 154
email: suzanne.gillham@immi.gov.au
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