Immigration compliance: what every employer needs to know
New Employer Sanctions provisions
From 19 August 2007 it is a criminal offence under the Migration Act 1958 to knowingly or recklessly allow someone to work, or refer someone for work, if that person’s status in Australia is unlawful or the person does not have permission to work for you. Work means any work including unpaid work.
Severe penalties apply to individuals and corporations who are convicted of these offences. Maximum penalties are $13,200 for individuals, and $66,000 for corporations, and / or 2 years imprisonment. Most first time offenders will be given a warning notice. Subsequent offences will be treated more severely. Higher penalties apply where an illegal worker has been exploited through forced labour, slavery etc.
These offences only apply where an individual, business or company knowingly or recklessly employed, re-employed or referred an illegal worker on or after 19 August 2007.
The definitions of ‘allowing’ and ‘referring’ an illegal worker are broad.
‘Allowing’ means:
- Employing a non-Australian citizen or permanent resident without an appropriate, valid visa to work
- Engaging a non-Australian citizen or permanent resident without an appropriate, valid visa as a contractor
You can only only be convicted of ‘allowing’ an illegal worker to work for you if you have a direct legal relationship with the illegal worker.
‘Referring’ means:
- Where a labour hire/recruitment firm refers a candidate to an employer and they knew the person would be working illegally or they were “reckless” as to whether the person would be working illegally. This applies regardless of whether or not a fee for referral is charged.
Liability: If your company is found to have employed or engaged illegal workers, only your company can be liable for sanctions. Individual employees of your company cannot be held liable for ‘allowing’ an illegal worker to work in these circumstances.
If your company is found to have referred an illegal worker, your company or the employee of the company who referred the worker (only if acting outside the actual or apparent scope of their authority) may be held liable for any offences of ‘referral’.
If you operate a business that is not also a company, only the owners of that business can be held liable for any offences of ‘allowing’ illegal workers. However an employee of a business that is not also a company may be held liable for ‘referring’ illegal workers in certain circumstances.
Where a subcontractor working for you engages or employs an illegal worker, the subcontractor would be liable for any offences because the subcontractor would be in the contractual relationship with the illegal worker.
If you have an illegal worker working for you who is sourced through a labour hire company, and that person remains the legal employee of the labour hire company, then you would not be liable unless you also had a legal relationship with that person. The liable party in such situations would be the labour hire company that has a contractual employment relationship with the illegal worker.
What you should do: You should consider implementing risk strategies to minimise the chances of offending under these provisions. Best practice would be to check any entitlement to work prior to employing or engaging new staff, or within 48 hours of doing so. The Department of Immigration & Citizenship (DIAC) has advised that generally it will not seek prosecution if checks are initiated within 48 hours of an employee starting work and you do not actually know the person is an illegal worker.
If you find someone is illegally working for you, you should consider immediately terminating their employment as the sanctions set out above may apply to you.
If you use a labour hire firm to source labour, you should ensure that the labour hire firm has verified their employees’ entitlement to work.
You can check a person’s legal entitlement to work by:
- requesting evidence of Australian citizenship (Australian passport or citizenship certificate or Australian birth certificate if issued before 20 August 1986);
- requesting evidence of New Zealand citizenship (New Zealand citizens have the right to work in Australia);
- requesting a copy of their passport and checking that their visa entitles them to work for you;
- registering with the DIAC Visa Entitlement Verification Online (VEVO) system to check visa entitlements and work rights. Information about the VEVO system is at: http://www.immi.gov.au/managing-australias-borders/compliance/info-employers/evo-orgs.htm. This is a free service available 24 hours, seven (7) days a week;
- contacting the DIAC Visa Entitlement Faxback Service. The Faxback service allows employers or labour suppliers to obtain information from the department about prospective employees who were born outside Australia. Employers will need to follow the steps below to use this facility.
- Obtain a copy of the authorisation form. See: Authority to Obtain Details of Work Rights Status (29KB PDF file)
- Complete the employee section of the form, sign it and return to the employer.
- Complete the employer details on the form and fax it to the department. Fax: 1800 505 550
Further enquiries
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