If you are employing foreign nationals, it is important you are aware of the possible consequences if the employee becomes illegal, or does not have appropriate work rights.
It is currently illegal for employers to:
- Allow an unlawful non-citizen to work OR allow a non-citizen to work in breach of any work-related visa conditions; or
- Refer an unlawful non-citizen to work OR refer a non-citizen to work in breach of any work-related visa conditions.
Under the current law, you will only be liable to consequences as an employer of the above workers if you had knowledge of the illegal worker, or you acted recklessly.
However, the Minister of Immigration released a Migration Amendment (Reform of Employer Sanctions) Bill 2012 outlining tougher laws for people employing illegal workers. Under these proposed laws, there will no longer be a requirement that an employer has knowledge, or was reckless as to their foreign national employee’s migration status or visa entitlement, meaning an employer may be unknowingly liable to hefty civil penalties.
As an employer, you will be obliged to take reasonable steps to ensure any foreign national workers are not unlawful non-citizens, or that they are not in breach of their work-related visa conditions.
DIAC will continue to have the power to cancel an illegal worker’s visa and remove them from Australia. If you are found to be employing illegal workers or referring illegal workers for work, you may find yourself criminally liable under the Migration Act 1958, and face fines of up to $13 200 and two years imprisonment (as an individual) or up to $66 000 per illegal worker for the company. Penalties are even higher for employers who are exploiting illegal workers though forced labour, sexual servitude and/or slavery.
Think you won’t be caught? DIAC has a ‘dob-ins’ hotline, which is open to the public to call up with any concerns about illegal workers. It was reported that nearly 17,000 calls were made in the past year. These calls often lead to investigations by DIAC, catching out a number of employers.
What do I do to avoid liability?
DIAC offers a service called the Visa Entitlement Verification Online (VEVO), which allows employers to see what visa their employee is currently on and to check the status of the visa, including when the visa expires and what conditions are attached to it.
It is strongly recommended that employers use resources such as VEVO to check the work entitlements of non-citizens who are potential employees, and also to check that current employers still have a valid visa allowing them to work. Employers must obtain and retain the visa holder’s permission to undertake a search in VEVO and will need their employee’s family name, given name, date of birth, passport number and country of issue.
To use VEVO employers need to fill out the registration form. The registration processing time is usually two business days. DIAC recommends that employers and labour supply companies register for the work entitlements category only.
If you require any assistance employing a person on a 457 visa or require any employment law advice, contact our team today.