Can Your Employer Threaten Your Visa or Sponsorship? Understanding Your Workplace Rights in Australia

By Brian AJ Newman Employment and Human Rights Advocate MYUNION

Every Worker in Australia Has Workplace Rights

Every year, thousands of temporary visa holders, sponsored workers, working holiday makers, international students and seasonal workers come to Australia believing they have little choice but to accept poor treatment from their employer.

Many are told:

• "If you complain, we'll cancel your sponsorship."

• "There are plenty of people who'll take your job."

• "Immigration won't believe you."

• "You won't get another visa."

• "You'll be sent home."

• "Just be grateful you have a job."

These statements are often designed to create fear.

Australian workplace laws do not permit employers to use a person's immigration status as leverage to avoid complying with the Fair Work Act.

While immigration law and employment law are separate legal systems, every employee working in Australia—regardless of nationality—is generally entitled to minimum workplace protections.

Can Your Employer Threaten Your Visa or Sponsorship?

The Law Applies to Everyone

The Fair Work Act 2009 (Cth) establishes minimum workplace rights for employees across Australia.

Those rights include protection from:

• adverse action

• workplace discrimination

• coercion

• undue influence

• sham contracting

• unlawful deductions

• wage theft

• underpayment

• unlawful dismissal

• victimisation for exercising workplace rights.

Importantly, these protections generally apply regardless of whether the employee is:

• an Australian citizen;

• a permanent resident;

• a temporary visa holder;

• a sponsored employee;

• an international student; or

• a working holiday maker.

An employer cannot simply ignore workplace laws because an employee holds a visa.

What Is a Workplace Right?

Section 341 of the Fair Work Act provides that employees have workplace rights.

Examples include:

• asking about wages;

• requesting payslips;

• making enquiries about leave;

• asking to be paid correctly;

• making a complaint;

• contacting the Fair Work Ombudsman;

• joining a union or employee association;

• participating in workplace investigations;

• refusing unlawful directions;

• accessing dispute resolution processes.

Merely exercising one of these rights is protected by law.

General Protections: One of the Strongest Parts of the Fair Work Act

Part 3-1 of the Fair Work Act is known as the General Protections provisions.

Unlike unfair dismissal, these provisions do not simply ask whether a dismissal was harsh or unreasonable.

Instead, they ask a much more important question:

Why did the employer take the action?

If the action was taken because an employee exercised a workplace right, engaged in industrial activity or possessed another protected attribute, the employer may have breached the Fair Work Act.

Adverse action may include:

• dismissal;

• refusing sponsorship;

• reducing hours;

• demotion;

• changing duties;

• disciplinary action;

• suspension;

• threats;

• intimidation;

• refusing promotion;

• detrimental treatment.

The High Court's Landmark Decision: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

One of the most significant employment decisions ever handed down by the High Court is Board of Bendigo Regional Institute of Technical and Further Education v Barclay. The case established the modern approach to determining whether adverse action has been taken for a prohibited reason under Part 3-1 of the Fair Work Act.

The Facts

Greg Barclay was both:

• an employee of Bendigo TAFE; and

• President of the local Australian Education Union branch.

Union members raised concerns with Mr Barclay that employees were allegedly being asked to create false or misleading documentation for an upcoming accreditation audit.

Acting in his capacity as union president, Mr Barclay sent an email to union members warning them not to participate in producing false or fraudulent documents and encouraging anyone under pressure to seek union assistance. The email prompted concern within senior management. Management suspended Mr Barclay on full pay, required him to show cause why disciplinary action should not be taken, and alleged he had breached the employer's Code of Conduct by the manner in which he raised the allegations and by refusing to identify the employees who had spoken to him confidentially.

The union argued that the suspension constituted unlawful adverse action because Mr Barclay had acted in his capacity as a union officer and had engaged in protected industrial activity.

The High Court's Decision

The High Court unanimously allowed the employer's appeal and restored the trial judge's decision in favour of the employer.

Importantly, the Court did not decide that union officials receive less protection.

Instead, the Court clarified how courts determine the employer's true reason for taking adverse action.

The Court held that the central inquiry is always:

Why did the decision-maker take the adverse action?

That is a question of fact to be determined by examining all of the evidence.

The Reverse Onus of Proof

General Protections claims are unusual because the Fair Work Act reverses the normal burden of proof.

Sections 360 and 361 provide that once an employee alleges adverse action was taken for a prohibited reason, the law presumes that allegation is correct unless the employer proves otherwise.

This reverse onus is one of the strongest protections available to Australian employees.

Employers cannot simply deny wrongdoing.

They must satisfy the Court that the prohibited reason played no part in the decision.

The Employer's Evidence Must Be Believed

The High Court explained that direct evidence from the actual decision-maker is often critical.

If the Court accepts that evidence as truthful and reliable, it may be sufficient to rebut the statutory presumption.

However, the Court also recognised that judges are not obliged to accept an employer's explanation simply because it is asserted. The explanation must be tested against:

• emails;

• documents;

• witness evidence;

• timing;

• surrounding circumstances;

• inconsistencies; and

• credibility.

The Court's task is to determine the true operative reason for the decision.

"Substantial and Operative Reason"

The High Court reaffirmed that a prohibited reason need not be the only reason for taking adverse action.

If exercising a workplace right formed a substantial and operative reason for the decision, the legislation may be contravened.

This principle continues to guide General Protections litigation throughout Australia.

What Does This Mean for Sponsored Workers?

Imagine this situation.

A worker complains about:

• unpaid overtime;

• unpaid public holiday penalties;

• unpaid superannuation;

• unlawful deductions.

A week later, the employer says:

"We've decided not to continue your sponsorship."

Or:

"Maybe Australia isn't the right place for you."

Or:

"Your visa isn't our problem."

The Court will ask:

Was the worker denied sponsorship because they exercised workplace rights?

If the answer is yes, there may be serious breaches of the Fair Work Act.

Underpayment Is Still One of Australia's Biggest Workplace Problems

The Fair Work Ombudsman regularly prosecutes employers for widespread underpayments.

One example is Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2022] FCA 1317.

The employer admitted numerous breaches involving:

• minimum wages;

• overtime;

• weekend penalties;

• public holiday penalties;

• annual leave;

• superannuation;

• record-keeping failures; and

• failures to issue compliant payslips.

The Federal Court imposed civil penalties totalling $475,200, emphasising that penalties must provide both specific and general deterrence.

Record Keeping Is Not Optional

Employers have strict statutory obligations to maintain accurate employment records.

In 85 Degrees Coffee, failures to keep proper records and provide lawful payslips were themselves separate contraventions attracting significant penalties.

Employees should keep their own records wherever possible, including:

• photographs of rosters;

• copies of timesheets;

• text messages;

• WhatsApp conversations;

• clock-in screenshots;

• diary entries recording hours worked.

These records often become crucial evidence when payroll records are incomplete or inaccurate.

Vulnerable Workers Require Greater Protection

Many migrant workers face additional barriers, including:

• language difficulties;

• limited knowledge of Australian workplace laws;

• dependence upon employer sponsorship;

• fear of visa consequences;

• cultural reluctance to complain;

• financial pressure.

Unscrupulous employers sometimes exploit these vulnerabilities.

Australian courts have repeatedly recognised that such workers require the protection of robust workplace enforcement and meaningful civil penalties to deter exploitation.

Sponsorship Does Not Give Employers Unlimited Power

Some employers mistakenly believe they "own" sponsored workers.

They do not.

Sponsorship creates obligations under migration law.

It does not remove the employer's obligations under:

• the Fair Work Act;

• modern awards;

• enterprise agreements;

• anti-discrimination legislation;

• work health and safety laws.

Employers cannot lawfully threaten immigration consequences simply because an employee seeks to enforce lawful workplace rights.

Practical Steps if You Think Your Rights Have Been Breached

If you believe your employer has acted unlawfully:

• keep copies of every roster and payslip;

• save emails, texts and messaging app conversations;

• write down important conversations as soon as they occur;

• retain copies of employment contracts and visa documents;

• seek advice as early as possible.

Many employment claims have strict statutory time limits.

Delaying action can significantly affect your available remedies.

Final Thoughts

Australia's workplace laws are designed to protect every worker, regardless of where they were born or what visa they hold. The High Court's decision in Barclay confirms that courts will carefully examine the true reasons behind an employer's actions, while enforcement cases such as 85 Degrees Coffee demonstrate that employers who underpay workers or ignore their statutory obligations can face substantial financial penalties.

No employee should be intimidated into accepting unlawful treatment because of concerns about sponsorship or visa status. Understanding your workplace rights, preserving evidence and obtaining timely advice are often the most important steps in protecting your employment and ensuring employers are held accountable.

Disclaimer: This article provides general information only and is not legal advice. Every workplace dispute depends on its own facts and circumstances. If you believe your workplace rights have been affected, obtain advice promptly, as strict statutory time limits may apply to Fair Work, discrimination and related claims.