Opinion: What you need to know about workers on 417 holiday working visas

The exploitation of workers on 417 visas is a growing concern in Australia and employers need to be aware of their obligations in accordance with the law.

It is important that Australian employers are familiar with their legal obligations stemming from the Fair Work Act 2009 (Cth) and Migration Act 1958 (Cth).

What do employers need to be aware of?

The exploitation of 417 holiday visa workers is a breach of Australian employment laws.

According to section 550 of the Fair Work Act 2009 (Cth) the mere involvement of an individual in a breach of the Act is sufficient for legal action to be taken.

Thus, an employer can be considered involved in breach of the Act if they have:

(a)  aided, abetted, counselled or procured the contravention; or

(b)  induced the contravention, whether by threats or promises or otherwise; or

(c)  been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

 (d)  conspired with others to effect the contravention.

Employers need to keep in mind that any individual that is consciously involved in the breach of the law could be held liable for their involvement.

What penalties are there?

Pursuant to the Migration Act 1958 (Cth) civil penalties are applicable to persons that allow or refer non-citizens to work in breach of their visa conditions. This includes leasing premises or a space within such a premises for that person to perform work or giving ‘cash in hand’ for services performed.  Civil penalties include fines not exceeding 100 penalty units.

Do penalties apply to franchisors?

In light of recent decisions, Courts have sent a strong message to franchisors that they will be held accountable for the exploitation of vulnerable workers.

Companies who take advantage of workers through underpayment face being publicly shamed and will be heavily fined. Such penalties apply to Franchisors who are deemed to be accessories involved in the exploitation of workers.

If an employer is unsure of their legal obligations, we recommend seeking legal advice.

By McDonald Murholme lawyer Bianca Mazzarella