Study Melbourne Ambassador Emily Abdilla interviews Frankie Lai, a senior lawyer.
Can you briefly explain the basic work rights of an international student compared to a domestic student?
Many International students have a work condition on their visa which specifies that they can work no more than 40 hours per fortnight whilst their course is still in session. Outside of their course being in session they are able to work unlimited hours.
Aside from this, international students have all of the same employment rights as domestic students.
Can international students agree to work under an hourly rate that is lower than the minimum wage, and are they entitled to penalty rates?
Agreeing to work at an hourly rate below the minimum wage
From a practical standpoint, anyone can agree to work at an hourly rate which is below their minimum wage, including international students.
There is nothing legally wrong with an employee accepting a role which pays below the minimum wage. However, as an international student, you are still entitled to receive the minimum wage even if you have agreed to be paid less.
If you ask to be paid more, or complain that you are not being paid correctly, it is illegal for your boss to fire you or treat you badly (e.g. cutting shifts, bullying you etc.) for asking or complaining about your pay. If this happens you can make a claim for compensation.
If you are worried about losing your job and/or finding other work, you could choose to work below the minimum wage and later claim the lost wages back, as the fundamental obligation to pay the correct minimum wage lies with the employer.
If you decide to do this, it is important that you keep good records and evidence of the dates and times you worked and how much you were paid. You have up to six years to claim back your correct wages.
Whether someone receives penalty rates will depend on what type of job the student has.
The basic minimum entitlements are set out in the National Employment Standards within the Fair Work Act, and minimum wage is set every year by the Fair Work Commission. For those working within specific jobs or industries, an Award may apply. An Award is set of rules which determines minimum pay and working conditions for specific industries.
Many of these Awards will provide for penalty rates on weekends, late at night or public holidays including the cleaning industry, retail and hospitality.
International students are equally entitled to penalty rates when compared to any other worker. Students can check their specific entitlements with the Fair Work Ombudsman.
What safeguards are there around bullying, harassment and discrimination in the workplace?
There are a number of safeguards to protect bullying, harassment and discrimination within the workplace including occupational health and safety frameworks and the Fair Work Act amongst others.
Occupational health and safety regulations
Occupational health and safety regulations impose obligations on employers to make sure that the workplace is safe. This includes both physical and mental safety and wellbeing.
Fair Work Act
The Fair Work Act provides a framework for complaints regarding bullying and harassment while you are employed. There is also an option to apply to the Fair Work Commission for an order to stop the bullying, however you should attempt to resolve the dispute with your employer directly first.
If the bullying or harassment is serious and has a significant effect, you may be able to submit a work cover claim for any mental harm experienced as a result of the bullying, discrimination or harassment.
Whilst there is no general law preventing harassment at work, there are laws preventing sexual harassment specifically, and bullying behaviour (as mentioned above). These laws do not require physical harassment to occur and it does not matter what the intention was behind the words or actions. They are assessed based on whether it is likely that a person would feel offended, humiliated or intimidated.
There are a number of different avenues for making a sexual harassment complaint including the Victorian Equal Opportunity and Human Rights Commission and the Human Rights Commission at the federal level. A successful claim may provide compensation for lost wages, the distress caused by the harassing behaviour and compensation for any medical expenses incurred.
Discrimination laws prevent direct discrimination – where a person or organisation treats another person negatively because of a characteristic such as race, gender, sexuality, religion, disability – as well as indirect discrimination – where an unreasonable condition is imposed by an organisation which disadvantages a person (or group of people) with one of these characteristics.
The Victorian Human Rights Commission offers an informal negotiation service which aims to preserve the relationship between the parties involved.
Claims can also be made under State and Federal laws, in the Victorian Administrative and Civil Tribunal or in the Federal Circuit Court. A successful claim can also provide compensation for lost wages, medical expenses as well as additional compensation for the distress and humiliation caused as a result of the discrimination.
What resources do you recommend for international students to gain a better understanding of their work rights, particularly related to COVID-19?
There are a number of resources which may assist international students including:
- The Fair Work Ombudsman information line and website.
- P.A.C.T Tool for calculating award rates and minimum wage based on your job.
- Victorian Equal Opportunity and Human Rights Commission website and free phone service.
- JobWatch information line.
If a concern arises at work, where can international students get advice and support?
Study Melbourne offers free advice which is completely confidential to all international students. It is highly encouraged that international students contact Study Melbourne so that they are aware of their work rights, especially in relation to COVID-19.
The International Students’ Work Rights Legal Service runs each week. See Study Melbourne’s events page for session times and to book an appointment.
For international students outside of the Melbourne CBD, there are a range of local community legal centers that may be able to assist with providing further information.