Do I have the same employment rights as an Australian citizen if I am on a Temporary Skills Shortage Visa?

Note: The Temporary Skills Shortage (TSS) Visa replaced the 457 Visa in April 2017, but those on either visa are afforded similar rights.

Being on a Temporary Skills Shortage Visa doesn’t afford you any less protection at work compared to an Australian citizen. As long as you have a valid visa, you can refer to rights stipulated under the Migration Act 1958 and the Fair Work Act 2009. Workplace laws in Australia will generally apply to all people working in Australia, and employers must ensure that they comply with both immigration laws and Australian workplace laws.

Rights under the Migration Act 1958

• Your employer must pay you market salary rates
• You only need to perform duties related to your approved occupation
• Your employer must pay reasonable and necessary travel costs to allow you or your family to leave Australia if this is requested by you, your family or Home Affairs on your behalf
• Your employer should not make you pay any costs relating to your recruitment or migration agent costs
• You must be paid in a manner that is capable of being verified by an independent person. For example, by cheque or EFT

Rights under the Fair Work Act 2009

• You are entitled to basic rights and protections in the workplace
• You are likely covered by the National Employment Standards (NES), and the conditions under the NES cannot be reduced. There are 10 conditions, which are:

1. Maximum weekly hours of 38 hours for full-time employers, plus ‘reasonable’ additional hours
2. Right to request flexible working arrangements to care for a child under school age, or a child under the age of 18 with a disability
3. Right to parental and adoption leave of 12 months (unpaid), with a right to request an additional 12 months
4. Right to four weeks paid annual leave each year plus an additional week for certain shift workers (pro rata for part-time employees)
5. Right to ten days paid personal / carer’s leave each year (pro rata for part-time employees), two days paid compassionate leave for each permissible occasion, and two days unpaid carer’s leave for each permissible occasion and five days unpaid family and domestic violence leave (in a 12-month period)
6. Right to community service leave for jury service or activities dealing with certain emergencies or natural disasters. This leave is unpaid, except for jury service which is paid for up to 10 days
7. Right to long service leave
8. Right to a paid day off for public holidays, except where reasonably required to work
9. Right to notice of termination and redundancy pay
10. Right for new employees to receive the Fair Work Information Statement

• You may also be covered by a modern award, on top of the NES. This will set minimum rates of pay, leave and break allowances.
• You have the right to be free from unlawful discrimination
• You have the right to become a member of a union
• You must be issued a pay slip within one working day of your pay day
• You are also entitled to protection if you exercise a workplace right or make a complaint to the Fair Work Ombudsman about your employment.