Backpacker and Migrant Worker Rights in Australia

With Australia’s borders re-opening after years of strict closures, businesses which rely on the seasonal and short-term workforce that those on working holiday visas supply are relishing the loosened travel restrictions.

In particular, industries like agriculture, tourism and hospitality are welcoming tourists and backpackers back into the country as they seek to bolster their trade and recoup losses caused by the pandemic.

In recent years, the treatment of backpackers and migrant workers in Australia has come under scrutiny as reports of underpayment, harassment and poor working conditions have been brought to light. Despite Australia’s employment laws covering workers on working holiday visas, this cohort of employees may not have the time, resources or understanding of local laws to challenge the shortcomings of their employer, but with the backlash against organisations abusing the naivety of backpackers and migrant workers more scrutiny will be placed on industries employing these types of workers to ensure they are given a fair deal.

What rights do backpackers and migrant workers have under Australian employment laws?

Anyone working in Australia is entitled to the same rights at work as their colleagues, including visa holders and migrant workers. These workplace rights include:

• minimum wages
• general protections
• fair working conditions
• fair termination
• record of payment; and
• superannuation

As of July 2022, the standard minimum wage in Australia is $21.38 an hour. All employees are entitled to at least this amount of pay.

All workers have the right to a safe workplace, which includes the right to not be discriminated against and the right to make a complaint or inquiry if they are on the receiving end of such behaviour.

A safe and fair working environment means proper training and equipment are provided, a maximum amount of hours per week are worked, and paid overtime and leave entitlements are provided to the employee.

If an employee with a working holiday visa has their employment terminated it should be done in a lawful manner. Unfair dismissal laws still apply to backpackers and migrant workers and the same legal process undertaken by permanent employees can be undertaken by visa holders to bring a claim of unfair dismissal.

Backpackers and migrant workers are entitled to a record of their payment in the form of a payslip which outlines their gross pay, tax, leave entitlements and superannuation payment. It is illegal to not provide a payslip for work performed.

As of 1 July 2022, any person working in Australia who is earning more than $450 per month is entitled to 10.5% superannuation contributions paid by their employer. Superannuation payments must be made into the worker’s nominated fund. It is illegal for employers to withhold these payments.

What rights do backpackers and migrant workers have if they are injured at work?

A backpacker or migrant worker who is injured at work may be eligible to make a claim for workers compensation, the same way a non-visa holder is. Workers compensation offers financial support for eligible workers who are unable to complete their duties due to injury by providing an income and covering the cost of medical expenses and care. If the injury has caused a permanent impairment which means the worker will not be able to work again, they may be entitled to a lump sum payment.

Backpackers and migrant workers bear the same right to be able to seek medical attention from a doctor of their choice in case they want to pursue a claim for compensation and do not have to see a doctor recommended by their employer.

If you require further clarity on the working rights of backpackers, migrant workers or other visa holders in Australia our employment lawyers can assist.