Through the Department of Immigration and Border Protection’s Temporary Work (Skilled) Visa (Subclass 457) program, an approved sponsor may nominate specifically skilled foreign workers to work for the sponsoring employer. When the nominations have been approved and those skilled workers have been granted 457 visas, they can then work for the approved sponsor.
Foreign workers, including 457 Visa holders, are entitled to many of the same workplace protections as Australian citizens. Under Australian law:
- Your employer cannot cancel or revoke your visa, but is under obligations to notify the Department of Immigration and Border Protection within 10 working days from when you cease employment with your employer.
- The Department of Immigration and Border Protection cannot automatically or immediately cancel your visa because of a visa condition which allows you to be unemployed for a period of up to 90 days.
- Before deciding to cancel the visa, the Department of Immigration and Border Protection has to consider the circumstances of each and every case including the circumstances surrounding the cessation of your employment.
- Pay rates are determined by Australian Law
- Employers must comply with Australian workplace laws and immigration laws when employing 457 Visa holders.
Have You Been Unjustly Terminated?
If your employer has terminated you, you may have a claim for unfair dismissal or unlawful termination. Your employer may have told you that you do not have the same rights as Australian citizens. In some situations, employers may even try to make you sign an agreement to give up your rights to this legal protection.
Neither of these actions are legal. Your employer can be held accountable for violating employment laws, which include unlawful termination and unfair dismissal. Your employer cannot force you to sign a contract to “sign away” the legal protections already in place. In most circumstances, such a contract would be unenforceable by the employer.
What Exactly Is Unfair Dismissal?
Unfair Dismissal is a term used when your employer terminates your employment in a “harsh, unjust or unreasonable” manner. Legally, it is not the same as “unlawful dismissal”, or what is known as a “general protections” application, but many of the same protections apply in each situation.
In either case, you need to lodge an application form with The Fair Work Commission within 21 days of your termination. If you miss this deadline, you may lose your right to file or receive compensation. It is rare for an extension of time to be granted. You should also be aware that some unfair dismissal laws do not apply equally to small employers.
Is Compensation Available To You?
The Fair Work Commission assesses all applications and complaints lodged in Unfair Dismissal, Unlawful Termination and General Protections cases. Each case usually commences with a conference of the affected parties, either by telephone or in person. If matters are not resolved, unlawful termination and general protections cases most often then must be filed in the Federal Circuit Court. Unfair Dismissal cases remain in the Fair Work Commission, and may progress to a more formal hearing. Navigating the application process can be challenging.
In order to obtain the maximum compensation allowed under the law, you need to make sure that you meet all deadlines. This includes all of the other deadlines in addition to the 21-day initial filing date. Collecting the documents and statements you need to support your application may take time.
Compensation may be awarded based on the particular circumstances of an application. The Fair Work Commission in an unfair dismissal case may also order you to be reinstated to your former job.
Taylor & Scott Lawyers are Sydney’s leading employment and compensation lawyers. We have helped numerous 457 Visa holders protect their rights in unfair dismissal and unlawful dismissal matters.
Let us put our century of legal experience behind your case.
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