Fair work laws and migration and visas

This extract from a recent unfair dismissal case is an explanation as to how Australia’s national workplace laws  interact with our migration and visa laws.

“The cases relied upon by ATT concern the legality of contracts of employment which are inconsistent with the visa requirements of the employees who are parties to those contracts.

[127] These cases were usefully summarised by the then Federal Circuit Court of Australia in Lal v Biber67 as follows:

(1) Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312, where the New South Wales (NSW) Court of Appeal considered an illegal entrant to Australia and his rights under the NSW worker’s compensation scheme, concluding that the worker was still covered by the NSW scheme.

(2) Australia Meat Holdings Pty Ltd v Kazi [2004] 2 Qd R 458, where the Queensland Court of Appeal found that a worker was not covered by the state worker’s compensation scheme. However, in that case the worker had no work rights, making any employment contract illegal. (3) Smallwood v Ergo Asia Pty Ltd [2014] FWC 964, where the contract was found to be illegal, as the applicant was prohibited from working for an employer who was not an employer who had been approved as a sponsor. Thus, the contact itself was illegal.

(4) Hussein v Secretary, Department of Immigration and Multicultural Affairs (No 2) (2006) 155 FCR 304; 157 IR 405, where the Federal Court of Australia considered a case where an applicant in detention said that he had entered into an employment agreement when he agreed to carry out work at the centre. As a person in detention he had no work rights. Graham J noted a number of overseas cases where employment claims have been refused where there were no work rights held by the employee: Vakante v Addey and Stanhope School Governing Body [2004] ICR 279; Allen v Hounga [2012] IRLR 685; Hussein v Labour Court [2012] IEHC 364; and United States in Hoffman Plastic Compounds Inc v National Labor Relations Board 535 US 137 (2002).68

[128] In Lal v Biber, the Court concluded that underpayments could be recovered by an employee for work in excess of 20 hours per week although the employee’s visa permitted the

to engage in employment in Australia. The initial contract of employment to carry out cleaning work appears to have been within the terms of his visa conditions, and therefore the contract itself was not illegal. In these circumstances, the Court was not persuaded that the breach of the visa condition resulted in an unenforceable contract of employment.69

[129] In my view, these cases have no application to the current case. It may be that Mr Williamson’s actions as a director of ATS are inconsistent with the Corporations Act 2001 however there is no assertion that the employment contract between Mr Williamson and ATT is inconsistent with the Corporations Act, the FW Act or any other legislation.

[130] As such there is no basis for me to make a finding that the employment contract between Mr Williamson and ATT is unlawful, invalid and/or unenforceable or that it otherwise prevents Mr Williamson from proceeding with the unfair dismissal application.

[131] ATT invited the Commission to make an inference arising under Jones v Dunkel due to Mr Williamson’s failure to call the accountant and Mr Drury. It is unclear how the accountant and Mr Drury could have assisted the Commission’s determination of whether Mr Williamson was an employee of ATT. To the extent that the accountant and Mr Drury could give evidence that certain transactions were part of phoenixing arrangements, this is not a matter which is relevant to whether Mr Williamson was an employee of ATT. I therefore decline to make any adverse inferences in respect to Mr Williamson’s failure to call the accountant and Mr Drury to give evidence in the matter.”



Williamson v Active Towing & Transport Pty Ltd (2023) FWC 3480 delivered 28 December 2023 per Wright DP