Do student visas still have Fair Work Act rights even if working beyond permitted hours?

Over 700,000 students will be enrolled in Australian educational institutions in 2023, making Australia a popular destination for international students. The majority of these students are in possession of temporary visas, such as the subclass 500 student visa. In order to sustain themselves financially, international students are permitted to seek employment in Australia. However, they are subject to specific limitations and restrictions regarding their work hours.

The Fair Work Act 2009 (Cth) ('FWA') is the primary Australian employment legislation. It establishes a national minimum wage and minimum working conditions, including maximum work hours, leave entitlements, and other protections. However, it is questionable whether international students on student visas are afforded the same protections under the FWA if they work in excess of their visa category's permitted work hours.

This research essay examines the legislative and judicial framework that governs the employment rights of international students in Australia. It will evaluate explicitly whether student visa holders are entitled to the same protections under the FWA, even if they work more hours than their visa category permits. In addition, the practical implications of the issue for international students, employers, and Australian society as a whole will be investigated.

BACKGROUND AND CONTEXT

International students who wish to work in Australia must follow their specific visa requirements. Traditionally students holding a subclass 500 visa were able to work 40 hours per week during semester time and unlimited hours during scheduled course breaks. However, work limits were modified during the pandemic and lifted in January 2022 to allow primary and secondary student visa holders to work more than 40 hours per fortnight to alleviate labour shortages, this exemption is set to expire on 30 June 2023. Work limitations for student visa holders will be reinstated and raised to 48 hours per fortnight from 1 July 2023. Though, students should be aware that exceeding the allowed working hours may result in visa cancellation, fines and/or deportation.

The FWA serves as the principal legislation governing workplace relations in Australia, establishing a comprehensive set of rules and standards aimed at ensuring fair working conditions for employees and balancing the interests of employers. The Act encompasses various aspects of employment, such as minimum wage, overtime pay, leave entitlements, unfair dismissal protections, and mechanisms for resolving workplace disputes. The FWA’s primary objective is to promote fairness, flexibility, and productivity in the workplace while preventing the exploitation of workers.

To comprehensively analyse the rights and protections afforded to student visa holders under the FWA, it is imperative to delve into the background and context of the FWA, the Migration Act 1958 (Cth) (‘MA’) and the Migration Regulations Act 1994 (Cth) (‘MRA’), while considering relevant case law, academic journal articles and other legislation. The intersection of the FWA and student visa regulations raises questions about the extent to which student visa holders are protected under Australian workplace law, particularly when they exceed the permitted working hours for their visa category. This issue has been highlighted in case law, such as Fair Work Ombudsman v AIMG BQ Pty Ltd & Anor [2016] (‘AIMG’), which underscores the vulnerability of international students to exploitation by unscrupulous employers.

The '7-Eleven wage scandal' is also a prominent example of the exploitation of international students in the Australian workplace. The Fair Work Ombudsman (‘FWO’) filed a lawsuit against a 7-Eleven franchisee for underpaying international students who worked at its locations, leading to substantial changes in Australian law and policy addressing international students' job rights. Prominent academics, such as Berg and Farbenblum, have also examined the rights of international students in the Australian workplace and the potential impact of their visa conditions on their employment rights. This research essay builds on their work by scrutinizing the legal frameworks in detail.

RESEARCH UNDERTAKEN

According to section 12 of the FWA, an employee is defined as someone who works for another person or organisation in exchange for money or other recompense. The Act makes no distinction between Australian citizens, permanent residents, and those on temporary visas. As a result, it can be argued that international students working in Australia have the same employment rights as Australian citizens or permanent residents.

The Federal Court ruled in AIMG that though a foreign student was working more than the allowed hours, they were still considered an employee under the FWA and entitled to the act's minimum wage and employment conditions. The court did not, however, directly address whether the student was entitled to the same protections under the FWA, even if they had worked more than the maximum number of hours allowed for their visa category.

Another important case is Fair Work Ombudsman v Invivo Group Pty Ltd & Ors [2015], in which the Federal Circuit Court ruled that a company and its director were liable for underpaying an international student who had worked more than the maximum number of hours allowed under their visa category. The court determined that the student was entitled to the minimum pay and other employment conditions outlined in the FWA, despite having violated their visa conditions by working longer hours than permitted.

Penalties and repercussions are also imposed for international students who violate their visa terms under the MA and the MRA. Section 116 of the MA states that a non-citizen who works in Australia in violation of their visa requirements may face visa cancellation and imprisonment or deportation from the country. According to Regulation 2.27(1)(c) of the Migration Regulations 1994 (Cth) (‘MR’), a student visa holder who violates the work restriction may have their visa cancelled and may not be eligible for another student visa.

Examining these cases enables the determination of whether the FWA protections extend to these individuals and assesses the potential consequences of breaching their visa conditions. Overall, the initial research indicates that overseas students who work more hours than their visa category allows are entitled to the same employment rights under the FWA as Australian citizens or permanent residents.

By understanding the background, it establishes the legal framework governing the issue, identifies the crucial provisions that directly relate to the research question, and provides a comprehensive analysis of the relevant case law and policy considerations.

ANALYSIS

The FWA encompasses minimum wage, overtime, leave, and wrongful dismissal for Australian workers. These regulations encourage fair working conditions and avoid worker exploitation. The Act does not pertain to student visa holders who work beyond their granted hours.

Student visa laws under the MA and MRA limit working hours. These legislative frameworks raise the question of whether FWA safeguards apply to student visa holders who work above their allowed hours. Budwal v Sydney Night Patrol & Inquiry Co Pty Ltd [2020] shows that courts have typically upheld the rights and safeguards of student visa holders under the FWA, even when they violate their visa requirements by working beyond the permissible hours. These judgements demonstrate that FWA rights are not dependent on student visa holders' working hour compliance.

However, student visa holders who violate working hour restrictions may face penalties. Tekle v Minister for Immigration and Border Protection (2016) affirmed the cancellation of a student visa due to work restrictions. These repercussions emphasise the significance of following their student visa terms while working in Australia.

A. Implications for Employers and Student Visa Holders

For employers, it is crucial to understand that student visa holders are entitled to the same protections under the FWA, even if they exceed their permitted working hours. Employers must ensure they comply with the Act's provisions relating to minimum wage, overtime pay, leave entitlements, and other employee rights. Failure to adhere to these requirements may expose employers to legal liability, including potential fines, penalties, and orders to compensate affected employees. Furthermore, employers should be educated and made aware that exploiting student visa holders by encouraging or forcing them to work beyond their allowed hours can have profound consequences for the visa holder's immigration status.

Additionally, both employers and student visa holders should be aware of the available avenues for seeking assistance or reporting workplace issues. The FWO offers resources and support for employees and employers to better understand their rights and obligations under the FWA.

The implications of this legal analysis underscore the importance of understanding and adhering to the relevant legislation and visa conditions for both employers and student visa holders. The FWO offers resources and support for employees and employers to better understand their rights and obligations under the FWA.

B. Intersection of the Fair Work Act and Student Visa Regulations

The FWA encompasses an array of protections for employees in Australia, including minimum wage, overtime pay, leave entitlements, and unfair dismissal protections.

Conversely, the MA and MRA prescribe specific working hour limitations for student visa holders, which have been provisionally altered due to the COVID-19 pandemic. While these regulations dictate visa conditions, the protections under the FWA apply to all employees in Australia.

In the case of AIMG, the court ruled that student visa holders who surpassed their permitted working hours were still eligible for protections under the FWA, including minimum wage and leave entitlements. This suggests that the protections afforded by the FWA are not dependent on a student visa holder's adherence to their visa's working hour restrictions.

Academic discourse on this subject also emphasises the susceptibility of student visa holders to workplace exploitation, despite their legal entitlement to protections under the FWA. This vulnerability may stem from factors such as language barriers, limited awareness of their rights, and apprehension about visa cancellation or other retaliatory actions.

Examining the interplay between the FWA and student visa regulations unveils a multifaceted legal landscape. Although student visa holders who work beyond their allowed hours appear to be entitled to the protections of the FWA, it is imperative for these individuals to acknowledge that they cannot simply continue to work more than the allocated hours as

recent cases have also highlighted the need for a more proactive approach to enforcement, with a focus on the prevention of exploitation rather than simply acknowledging the occurrence.

C. Employer obligations

Whether their employees are Australian citizens, permanent residents, or temporary visa holders, employers in Australia are legally required to comply with the FWA. Employers who hire international students must ensure that they adhere to the relevant visa conditions and working hour constraints.

Employers must also provide a safe and equitable workplace free of discrimination and exploitation for overseas students. This includes paying the minimum wage and adhering to the other employment criteria outlined in the FWA, even if the student has violated their visa limitations by working more hours than permitted.

D. Protection against exploitation

The FWA protects overseas students working in Australia from exploitation and underpayment. Recent incidents, such as the '7-Eleven wage scandal', have highlighted international students' vulnerability to exploitation by deceitful employers. The findings of this study indicate that overseas students working in Australia are entitled to the minimum wage and other employment requirements outlined in the FWA, even if they have violated their visa conditions by working longer hours than permitted.

The government and other relevant organisations must also provide information and support to overseas students so that they understand their rights and duties when working in Australia. This may involve providing information about minimum wage rates, working conditions, and reporting avenues for exploitation or underpayment.

E. Policy Ramifications

The findings of this study have significant policy implications for Australian law and policy regarding the employment rights of international students. To provide greater clarity for overseas students and employers, the government may need to consider enhancing the information available on the relationship between visa conditions and employment rights, as well as the consequences of violating visa restrictions. Such measures could enhance confidence and compliance among overseas students and companies operating in Australia.

To assist international students, and understand their rights and responsibilities as Australian workers, the government may need to provide more support. This may include giving minimum wage rates, working conditions, and reporting exploitation or underpayment. If overseas students are exploited or underpaid, the government may consider offering legal and other support services.

The government may also need to examine how visa restrictions affect international students' employment and experience in Australia. Working-hour limits may make it hard for overseas students to find work and gain experience, limiting their professional development and raising their risk of exploitation.

FINAL THOUGHTS

The study examined whether FWA protections apply to student visa holders who work more than their visa category allows. Research demonstrates that international students working in Australia are protected by the FWA like Australian citizens and permanent residents, despite student visa limits. The findings impact Australian law and policy on international student employment rights, including employer requirements, protection from exploitation, immigration consequences, and policy implications.

Research shows that overseas students and businesses need more guidance on visa conditions and employment rights. International students must be able to work in a safe, fair, and visa-compliant setting. The government and other relevant organisations must further educate overseas students and employers about their work rights, responsibilities, and duties in Australia.

Additional research may be needed to determine how visa limitations affect international students' employment options and professional growth and whether present policies and legislation protect their rights as workers in Australia.

Though international students working in Australia are protected by the FWA like Australian citizens and permanent residents, despite student visa restrictions, international students must be informed, supported, and protected from exploitation and underpayment by the government and other relevant governing bodies.

References A Articles/Books/Reports

Australian Government - Department of Education, ‘Support for International Students - Department of Education, Australian Government’, Department of Education (2023) <https://www.education.gov.au/international-education/support-international-students>

Australian Government - Department of Home Affairs, ‘Temporary Relaxation of Working Hours for Student Visa Holders’, immi.homeaffairs.gov.au (January 2022) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/student-500/temporary-relaxation-of-working-hours-for-student-visa-holders>.

Bahr, Jessica, ‘Lei Feared Speaking out When She Was Exploited. A New Proposal Aims to Empower Migrant Workers like Her’, SBS News (1 March 2023) <https://www.sbs.com.au/news/article/lei-feared-speaking-out-when-she-was-exploited-a-new-proposal-aims-to-empower-migrant-workers-like-her/vos4uyqn1>

Berg, Laurie and Bassina Farbenblum, Remedies for Migrant Worker Exploitation in Australia: Lessons from the 7-Eleven Wage Repayment Program (University of Melbourne, 2018) <https://law.unimelb.edu.au/__data/assets/pdf_file/0008/2694995/Berg-and-Farbenblum-413-Advance.pdf>

Berg, Laurie and Bassina Farbenblum, Wage Theft in Australia: Findings of the National Temporary Migrant Work Survey (Thesis, University of New South Wales - Faculty of Law, November 2017) <https://static1.squarespace.com/static/593f6d9fe4fcb5c458624206/t/5a11ff31ec212df525ad231d/1511128887089/Wage+theft+in+Australia+Report_final_web.pdf>

Creighton, B. (2020). Exploitation of Migrant Workers in Australia. Australian Journal of Labour Law, 33(1), 1-25

Fair Work Ombudsman, ‘Visa Holders and Migrant Workers – Workplace Rights and Entitlements’, Fair Work Ombudsman (2022) <https://www.fairwork.gov.au/tools-and-resources/fact-sheets/rights-and-obligations/visa-holders-and-migrant-workers-workplace-rights-and-entitlements>

Forsyth, Anthony, ‘The Identity of the “Employer” in Australian Labour Law: Moving beyond the Unitary Conception of the Employer’, SSRN (24 June 2020) <https://ssrn.com/abstract=3660803>

Geoff Gilfillan, ‘The Extent and Causes of the Wage Growth Slowdown in Australia’, Aph.gov.au (9 April 2019) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1819/WageSlowdown>

Hardy, Tess, and John Howe, ‘Hardy, Tess; Howe, John --- “Creating Ripples, Making Waves? Assessing the General Deterrence Effects of Enforcement Activities of the Fair Work Ombudsman” [2017] SydLawRw 20; (2017) 39(4) Sydney Law Review 471’, classic.austlii.edu.au (2017) <http://classic.austlii.edu.au/au/journals/SydLawRw/2017/20.html>

Howe, J. (2018). Enforcing Migrant Workers' Rights in Australia: The Role of the Fair Work Ombudsman. University of New South Wales Law Journal, 41(2), 709-734

Peetz, D., Murray, G., & Murray, P., 'Regulating Vulnerable Work: Australian Labour Law Reform in a Post-WorkChoices World' (2014) 38(2) Melbourne University Law Review 1

Sivaraman, Giri and Patrick Turner, ‘The 7-Eleven Wages Scandal: The Need for Law Reform [2016] Precedent AULA 51; (2016) 135 Precedent 53’, classic.austlii.edu.au (2019) <http://classic.austlii.edu.au/au/journals/PrecedentAULA/2016/51.html>

Wage Inspectorate of Victoria, ‘Victoria’s Wage Theft Laws | Victorian Government’, www.vic.gov.au (2022) <https://www.vic.gov.au/victorias-wage-theft-laws>

B Cases

Budwal v Sydney Night Patrol & Inquiry Co Pty Ltd [2020] FCA 1048

Fair Work Ombudsman v 7-Eleven Stores Pty Ltd [2016] FCAFC 96

Fair Work Ombudsman v AIMG BQ Pty Ltd & Anor [2016] FCCA 10244

Fair Work Ombudsman v Australia Fast Food Pty Ltd [2020] FCA 1428

Fair Work Ombudsman v Di Censo & Anor [2021] FCCA 495

Fair Work Ombudsman v Invivo Group Pty Ltd & Ors [2015] FCCA 1914

Fair Work Ombudsman v NSH North Pty Ltd & Ors [2021] FCCA 1289

Tekle v Minister for Immigration and Border Protection [2016] FCA 1305

C Legislation

Fair Work Act 2009 (Cth)

Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth)

Fair Work Regulations 2009 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Migration Regulations Act 1994 (Cth)

D Other

Fair Work Ombudsman (2020). Compliance and Enforcement Policy