When a business responds to an underpayment class action, the focus is usually on payroll records, employee classifications, hours worked, and the extent of any potential liability.
Where the affected workforce includes visa holders, that review should not stop at employment law.
The same records being examined to identify an underpayment may also reveal separate immigration and sponsorship compliance issues, particularly where employees are sponsored, subject to work restrictions, or have changed visa status during the period under review.
For businesses with migrant workers, visa compliance should therefore form part of the review.
Why underpayment reviews can raise immigration compliance issues
Visa holders working in Australia generally have the same workplace rights and protections as other employees. At the same time, employers engaging migrant workers must also comply with Australia’s immigration laws and any sponsor obligations.
Those two compliance frameworks can intersect.
An underpayment class action will often involve a detailed review of historical payroll records, rosters, timesheets, employment contracts, duties, classifications, and working arrangements.
For a visa holder, those records may tell us more than whether they were paid correctly. They may also raise questions about whether the employee worked consistently with their visa conditions, whether the employer correctly identified and monitored their work rights, and, for sponsored employees, whether their actual employment arrangements remained consistent with the basis on which sponsorship was approved.
An underpayment will not necessarily amount to an immigration breach. But where visa holders are part of the affected workforce, the business should test that question rather than assume the employment issue sits in isolation.
Sponsored employees require closer attention
The potential overlap is particularly important for employer-sponsored workers.
Sponsors have ongoing obligations, including in relation to matters such as the sponsored employee’s occupation, remuneration, and employment arrangements.
If an underpayment review identifies discrepancies between what a sponsored employee was expected to be paid and what they received, consider whether there are immigration consequences as well as employment law consequences.
The same applies where the review identifies that an employee’s actual duties or working arrangements differed materially from those contemplated when the worker was sponsored.
This does not mean that every payroll discrepancy involving a sponsored worker creates a breach of sponsorship obligations. The specific visa, nomination, period of employment, and circumstances need to be considered.
The key is recognising the issue early and knowing when to obtain immigration advice.
Why historical visa compliance matters
Australian workplaces can include employees holding different visas which carry varying work conditions, including restrictions on hours or the type of work a person can undertake. Visa status can also change over time.
That becomes particularly relevant where a class action examines employment arrangements extending back several years, as an employee may have held several different visas during the relevant period, with different work rights applying at different points.
For a business already undertaking a substantial historical workforce review, this is also an opportunity to consider whether its visa-checking processes operated effectively during the same period.
Questions may include:
- whether visa status was properly recorded;
- whether changes in visa status were identified;
- whether relevant work restrictions were monitored; and
- whether appropriate systems are now in place.
The objective should not simply be to identify another potential problem, but rather to understand the business’s full compliance position and address any gaps in a coordinated way.
Build immigration into the review
Where an underpayment class action involves a workforce with temporary visa holders, immigration advice should be considered early in the process.
A practical first step is to identify the visa holders within the affected employee cohort.
From there, the immigration review can be targeted to the issues that matter, including:
- historical visa status and work rights;
- sponsored employee arrangements;
- remuneration;
- duties; and
- the organisation’s processes for checking and monitoring visa compliance.
The business can then determine whether any issues require further investigation or remedial action.
An underpayment class action already requires a business to closely review how it has employed and paid its workforce. Where that workforce includes visa holders, it also makes sense to use that review to understand and assess their immigration compliance.
Taking a coordinated approach can help ensure that, while one compliance issue is being addressed, another is not inadvertently overlooked.
How Mullins Lawyers can help
The Mullins Migration team assists businesses to review visa and sponsorship compliance across their workforce.
If an organisation is responding to an underpayment claim or class action involving visa holders, we can work alongside employment and disputes advisers to identify immigration issues arising from the affected workforce and provide practical advice on the steps to take.
If your business is reviewing an underpayment matter involving visa holders, then please reach out to Corina Chen (cchen@mullinslawyers.com.au or 07 3224 0364) for an obligation-free chat about any immigration compliance issues that may arise.
