There are times when businesses hire an overseas candidate due to a skills shortage for a specialist role, or quite possibly the very best person for the job, based on experience, is from overseas.
Nowadays, with increased access to the internet and flexible work arrangements, businesses are no longer seeing geographic location as a barrier to employment.
Technology also enables candidates with easy access to the local job market and over recent years, we’ve seen an increase in the number of overseas applications from candidates. Not all candidates are aware of the employment restrictions that relate to them gaining paid employment in Australia.
In these circumstances there are some simple elements that companies must consider:
If you are looking to locate your employee in Australia, check the applicants right to work in Australia
Australian citizens, permanent residents and New Zealand citizens have full working rights in Australia. However, candidates from all other countries require a visa and only a few visas allow for working rights. Currently, these include:
- Working In Australia
- Employer-Sponsored Workers
- Harvest Trail
- Skilled Independent Visa
- Temporary Work Visa
- Work and Holiday Visa
- Working Holiday Visa
Click here for full details.
Your options for employing skilled labour from overseas
If employing from overseas is the best way to bring the talent that you require to your business, there are a couple of options:
- Sponsoring a worker on a permanent basis: You can sponsor skilled workers for permanent migration through the Employer Nomination Scheme or the Regional Sponsored Migration Scheme (if your business is in regional Australia).
- Sponsoring a worker on a temporary basis: You can sponsor skilled workers for the Temporary Skill Shortage (subclass 482) visa, which allows them to come to Australia to work for up to 4 years.
- Entering into a labour agreement: You can employ a number of overseas skilled workers on a permanent or temporary basis by entering into a formal labour agreement with the Australian Government.
Become an Approved Business Sponsor
Commonly, companies employing executives for their particular skill or experience will bring their future hire to Australia on an Employer-Sponsored Visa. To do this you must first qualify as an Approved Business Sponsor.
The obligations of being an Approved Business Sponsor start when your sponsorship is approved and generally finish between two to five years after the sponsorship approval ends.
The expectations include:
- Cooperation with inspectors if and when required and readily provide information if requested
- Ensure your international hires are on equivalent terms and conditions package to what would be offered to an Australian employee
- Keep records such as correspondence with the Department of Home Affairs and Employment Records
- Ensure the sponsored employee is working in the nominated position
- Pay the associated costs of recruiting, sponsoring and nominating the foreign worker
- If your employee becomes an unlawful worker, it becomes your responsibility to pay the costs of them and their family to leave Australia
Significantly adding to the cost of employing international workers is the necessity to pay the Government tax known as the Skilling Australian Funds (SAF) levy or the Nomination Training Contribution Charge (NTCC).
It will also be an expectation that your business will comply with National Employment Standards under the Fair Work Act Australia 2009.
Employing Talent Located Overseas
Whilst the internet has made geography irrelevant for many roles that can be undertaken remotely, Australian businesses still need to consider their position before agreeing to this arrangement.
While overseas employees may not have their primary place of work in Australia, they are still employed by an Australian employer and therefore will fall under the definition.
To be considered an Australian employer, you must:
- Be a training or financial corporation formed within Australia;
- Be an entity incorporated in one of the states or territories of Australia; and
- Carry out work in Australia and have central management and control in Australia.
The definition of an Australian-based employee includes an employee:
- Whose primary place of work is in Australia; or
- Who is employed by an Australian employer, regardless of their geographic location.
When employing someone located overseas, a business must understand the employment laws that operate within that country. If an employee has different entitlements under Australian standards and local employment requirements, then the entitlements that are more beneficial to the employee is the one that should be applied.
All information included in this article is based on our personal knowledge and experience. Before acting on this information we recommend that you seek advice from a qualified employment lawyer.