New Penalties for Employing Illegal Overseas Workers in Australia

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.

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 article. It is an offence to breach those sponsorship obligations.

Penalties and fines for employers

The new civil penalties for employers range from $1,530 for individuals and $7,650 for companies for a first infringement notice to a maximum civil penalty of $15,300 for individuals and $76,500 for companies.

There are also criminal penalties including imprisonment and substantial fines for employers who knew, or were reckless as to whether the worker was not allowed to work or had work restrictions.

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 official documents that verify the worker’s citizenship status.

Workers from overseas

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

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

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.

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.

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.

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, including:
•advice about sponsorship obligations
•assistance with preparing & lodging sponsorship & nomination applications

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