Penalties for employing illegal workers

By: Svenja Greer


On 1 June 2013 the Migration Amendment (Reform of Employer Sanctions) Act 2013 and the Migration Amendment Regulation 2013 (No. 3) came into effect.

The Act introduces new civil penalties for Australian employers that employ workers from overseas who are not allowed to work, or employ overseas workers in breach of work-related visa conditions.

Under the new laws, employers are liable even if they do not know that a worker is not allowed to work or has work-related visa conditions.

Employers may also be liable even if the illegal worker was referred to them by an employment agency.

Executive officers of companies (directors, secretaries, CEOs and CFOs) may also be liable if they do not take all reasonable steps to prevent the company from employing illegal workers.

However, if employers can prove that they took “reasonable steps at reasonable times” to verify that their workers are allowed to work in Australia without breaching their visa conditions, they will not be liable.

Employing non-Australian workers – the basics

Australian citizens and New Zealand citizens who live in Australia are allowed to work in Australia.

People from other countries need to hold a visa to legally enter or remain in Australia.

Some visas do not allow the visa holder to work at all. Other visas have work-related conditions that restrict the type or amount of work the visa holder can do.

Workers from overseas are subject to the same workplace laws that Australian workers are and should be employed under the same work conditions and paid the same wages.

Common visas with work-related conditions:

Visitor or Tourist visa holders are not allowed to work.

Working Holiday or Work and Holiday visa holders are only allowed to work for the same employer for 6 months.

Student visa holders are not allowed to work until they start their studies and are only allowed to work 40 hours each fortnight when their course is in session.

457 or Temporary Work visa holders are allowed to work in a pre-approved position for a pre-approved employer.

This is not a complete list of work-related visa conditions. All Australian employers should verify the work-related visa conditions of their non-Australian workers.

Offences

It is illegal to allow a non-citizen who does not hold a visa to work.

It is illegal to allow a non-citizen who holds a visa to work in breach of a work-related condition of their visa.

It is illegal to refer a non-citizen for work if they do not hold a visa or if it breaches a work-related condition of their visa.

Employers who are visa sponsors have additional obligations that are not dealt with in this guide. It is an offence to breach those sponsorship obligations.

Penalties and fines for employers

1st Infringement Notice - $1,530 for individuals / $7,650 for companies

2nd Infringement Notice - $3,060 for individuals / $15,300 for companies

Maximum Civil Penalty - $15,300 for individuals / $76,500 for companies

Maximum Criminal Penalty (if the employer knew, or was reckless as to whether the worker was not allowed to work or had work restrictions) – 2 years imprisonment and/or $20,400 for individuals / $102,000 for companies

Maximum Criminal Penalty for Aggravated Offence (if the worker was also being exploited) – 5 years imprisonment and/or $51,000 for individuals / $255,000 for companies

Required checks

The new laws require Australian employers to take “reasonable steps at reasonable times” to verify that their workers are allowed to work in Australia without breaching their visa conditions.

Australian citizens, permanent residents or New Zealand citizens

Before employing workers who claim to be Australian citizens, Australian permanent residents or New Zealand citizens, employers should inspect (and keep a copy) one of the following:

- Australian or New Zealand passport
- Australian citizenship certificate/certificate of evidence of Australian citizenship PLUS photo id
- Australian birth certificate PLUS photo id
- Certificate of Evidence of Resident Status PLUS photo id
- Certificate of Status for New Zealand Citizens in Australia PLUS photo id

If a worker does not have any of the above documents, a registered migration agent can advise you about what other documents can be used as evidence.

Workers from overseas

Before employing overseas workers, employers should check their visa details AND work-related visa conditions on the Department of Immigration’s Visa Entitlement and Verification Online (VEVO) computer system.

Australian employers can register to use VEVO (registration can take several days) or ask the visa holder to email their visa details to the employer using the VEVO Email Service. (Employers should keep a copy of the email).

Temporary visas – employers should note the visa expiry date of workers who hold temporary visas and check VEVO again immediately after that date to ensure the workers have been granted a new visa and check for any work-related visa conditions.

Bridging visas are short-term visas with no fixed expiry date usually granted while the visa holder awaits the outcome of a visa application. Employers should check VEVO regularly to ensure that workers who hold bridging visas continue to hold a visa and check for any work-related visa conditions.

Workers referred by contractors or labour hire companies

Before employing workers referred by a third party, employers should get written verification that they are allowed to work in Australia and whether they have any work-related visa conditions.

BEST PRACTICE TIPS:
– Include a condition in all employment contracts that requires workers from overseas to notify you if their visa expires or is cancelled, if they are granted a new visa, or if any work-related conditions of their visa change.
- Include a condition in all contracts with contractors and labour hire companies that any workers referred are allowed to work in Australia and that you are notified about any work-related visa conditions.

Recordkeeping

The onus is on employers to prove that they took reasonable steps to verify that their workers are allowed to work in Australia without breaching their visa conditions.

It is therefore vital that employers keep records of all checks that they do including the dates they do them and to keep copies of any related documents such as passports that they inspect.

Duties of executive officers

Executive officers of companies should take all reasonable steps to ensure the company complies with all laws relating to employing non-Australian workers.

All of the company’s employees, agents and contractors who are from overseas or who are involved in hiring, rostering or supervising employees from overseas should be given any necessary training to ensure that the company does not employ overseas workers in breach of work-related visa conditions.

This article is only a summary of some of the laws relating to employing non-Australian workers. If you would like more detailed information about these laws, if you need advice about your particular situation, or if you have received a notice from the Department of Immigration about a possible work-related offence or contravention of a work-related provision you should seek advice from a registered migration agent.

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Written by Registered Migration Agent Svenja Greer from Australia Direct Visas and Migration The team at Australia Direct can give advice and assistance to Australian employers who wish to employ overseas workers.

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