Australian Immigration Daily News

Ombudsman says : "Your employer may choose to pay you using cash, cheque, money or postal order, or through electronic funds transfer into your bank account."

UNCLASSIFIED

Dear Mr Ferenc,

Thank you for drawing this apparent discrepancy between the positions of the Department of Immigration and Border Protection and the Fair Work Ombudsman on the issue of cash payments to visa holders to our attention. 

In response to your question, sponsors of 457 visa holders agree to abide by a set of obligations when they apply and are accepted as a sponsor on the programme.  These obligations are generally more onerous than any requirements under the National Employment Standards. 

The FWO's advice appears to be general advice that is not specific to primary 457 visa holders.  While the information is generally correct for most visa holders (including e.g. working holiday makers, partner visa holders), the FWO's advice cannot take account of individual circumstances or the conditions for all visas and should not be relied on in the face of contrary information from the Department of Immigration and Border Protection about visa specific conditions and/or specific obligations agreed to by the sponsor.  

The obligation that must be met by sponsors in regards to wage payments to visa holders is 2.82(3)(c) which requires Standard Business Sponsors to keep records of money paid to the primary sponsored person in a matter capable of being verified by an independent person.  As you've noted, it is the department's view that generally, cash payments of wages do not meet the requirements of the obligation as an independent third party is unable to verify if the person received the money stated on a payslip or payment summary or not if it is received in cash.  Please note that a decision about whether a cash payment is a breach of the obligation lies with the delegated decision maker taking into account all the circumstances of the case.  To be on the safe side, I recommend that you advise your client to always pay their visa holders by direct deposit, even if requested by the visa holders to pay them in cash. 

XXXXX XXXXXXX (name removed for privacy reasons)

Assistant Director (Sponsor Monitoring)

457 and Sponsor Monitoring Policy Section Department of Immigration and Border Protection

Telephone: XXXXXXXXX (removed for privacy reasons)

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

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-----Original Message-----

From: Piotr Ferenc [mailto: ]

Sent: Friday, 3 October 2014 10:54 AM

To: 457 Policy

Subject: WWW Form Submission

Below is the result of Agents Gateway feedback Form.  It was submitted by Piotr Ferenc  (This email address is being protected from spambots. You need JavaScript enabled to view it. ) on Friday, October 03, 2014 at 10:54:13

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marn: 0743766

message: PAM 3 Clearly states that cash payments of wages cannot satisfy regulatory requirements of "keeping records". The SBS sponsor , client of mine has been sanctioned for incidental cash payment confirmed by independently appointed accountant  purely on the basis of policy ( decision available if required).

It seems to me that the  PAM 3 is inconstant with publicly available advice for 457 visa holders of fairwork ombudsman :http://www.fairwork.gov.au/about-us/policies-and-guides/fact-sheets/rights-and-obligations/visa-holders-and-migrant-workers-workplace-rights-and-entitlements#cash

Can my employer pay me in cash?

Your employer may choose to pay you using cash, cheque, money or postal order, or through electronic funds transfer into your bank account.

It is acceptable for your employer to pay you in cash as long as tax has been taken from your earnings and sent to the Australian Taxation Office (ATO). Generally, you should also be receiving superannuation. You should check your pay slip each time you are paid to make sure this is being done.

'Cash in hand' is a term used to describe cash payments where tax has not been taken out - this is against the law.

Contact the Fair Work Infoline on 13 13 94 if you are unsure about your pay arrangements.

Please clearly advice if cash payment of wages is acceptable for 457 visa holder . Who is wrong - DIBP or Ombudsman ?

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