As many employers of visa holders are aware, most Australian Student Visa holders have work rights limited to 40 hours per fortnight. This regularly presents rostering issues for employers and workers alike, but problems caused by the Government definition of a fortnight are something many employers and visa holders may not be aware of.
Many businesses work on a fortnightly rostering and payment cycle and most payroll and rostering software platforms follow this fortnightly pattern. However, from the perspective of The Department of Immigration in a four week period, there are actually three fortnights. This is where the confusion begins.
Imagine the two scenarios below, both time sheets for a one month period submitted by Student Visa holding employees:
While both employees have worked a total of 80 hours over the period of a month, only Employee 1 has met the conditions of their Student Visa.
Employee 2 has met their visa conditions for the fortnight of weeks 1 and 2 as well as the fortnight of weeks 3 and 4. However, Employee 2 has breached their work rights as they have worked a total of 44 hours over the fortnight of weeks 2 and 3.
This pitfall stems from The Department’s policy definition of a fortnightly period:
Definition of ‘fortnight’
Fortnight is defined in conditions 8104 and 8105 as the period of 14 days commencing on a Monday. Therefore the end of any fortnight would be at the end of the second following Sunday. The 40 hours a fortnight:
- relates to each fortnight during which the course of study or training is in session
- cannot be averaged out over the duration of the course.
In simplest terms, The Department calculates ‘rolling fortnights’ as any 14 day period commencing on a Monday (as opposed to ‘subsequent fortnights’ calculated back to back).
This ‘rolling fortnight’ issue is something very few businesses HR systems are set up to account for. As a result it is likely the many businesses are unaware that they are routinely breaching their worker’s visa conditions.
This common misconception can present a large financial and reputational risk to businesses employing visa holders, especially with the current scrutiny upon visa employers from The Press and The Department of Immigration.
Therefore it is important for businesses, and especially HR Managers, to remain aware of these pitfalls and ensuring they are informed and up to date with the work rights of each individual employee. Contact the team at checkworkrights to help ensure on-going compliance with your obligations as an employer of visa holders.
Published: October 23, 2018