Beware new provisions for failing to confirm right to work in Australia

Recent amendments to the Migration Act 1958 (the Act) have introduced new offences which can give rise to civil and criminal liability for body corporates, individuals, executive officers and labour suppliers who fail to confirm whether or not the people they engage are legally permited to work in Australia.

New offences and contraventions

Under the amendments it will be an offence or a contravention to:

• Allow or continue to allow an unlawful non-citizen to work;
• Allow a lawful non-citizen to work in breach of a work related Visa condition;
• Refer a worker for work with another when the worker is an unlawful non-citizen;
• Refer a worker for work with another where the referral would put the worker in breach of a Visa work related condition; and
• Commit aggravated offences by allowing an unlawful non-citizen or referring an unlawful citizen to another for work in the knowledge that the worker will be exploited while doing that work.

Defences

With the exception of the aggravated offences outlined above, it is a defence if the employer or referrer can demonstrate that it took reasonable steps to verify that the worker was not an unlawful non-citizen or, was not in breach of a work related Visa condition.

Who is affected?

Bodies corporate and executive officers who fail to take reasonable steps to prevent the work related offences may be subject to penalties and criminal convictions. Executive officers include directors, chief executive officers, chief financial officers and secretaries of the body corporate.

Reasonable steps include what actions the executive officer took to ensure compliance with the Act and what action the executive officer took when he/she became aware the body corporate was engaging in a contravention.

Penalties

Civil penalities for individuals range from $3,060 for an infringement to $15,300 per breach and for body corporates $15,300 for an infringement and $76,500 for a breach.

Criminal sanctions range from a two year prison sentence and $20,400 fine for individuals and a $102,000 fine for body corporates. Aggravated offices may attract a maximum five year prison sentence and fines for individuals of $51,000 and a $225,000 fine for body corporates.

Conclusion

The amendments will become effective on proclamation in September 2013. Significant penalty provisions apply as noted above. Employers should:

• Conduct an audit of their existing workforce to ensure the currency and entitlement of their current employee's ability to work legally in Australia. This may include amongst other measures, confirming worker Visa entitlements and conditions through the Department of Immigration and Citizenship Visa Entitlement Verification Online (VEVO) (www.immi.gov.au/vevo) and scrutinising and copying original documentation provided by the employee.
• Review recruitment procedures (including instructions to and contracts with labour hire and recruitment firms to ensure potential employees entitlement to work in Australia is confirmed and documented along with copies of sited original documents eg passport, citizenship papers, drivers licences etc prior to commencing employment.
• Review employee's contracts of employment to ensure that they adequately address the requirement of the employee to notify the employer if they become illegible to legally work in Australia and any associated provisions including suitable clauses in the event that the employee becomes disentitled to work in Australia.
• Schedule regular audits of employees during their employment to confirm they remain legally entitled to work in Australia.
• Implementing 'alert' processes to notify the employer and it's executive officers of any significant time milestones associated with workers subject to Visa conditions.

If you would like more information about employing workers subject to Visas, potentially illegal workers, ensuring compliance or the matter generally, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.