Work Rights Compliance Legislation

Australia continues to have a significant population of people working without valid work rights. This includes unlawful non-citizens (those without a current visa), as well as temporary residents / non-citizen worker who hold a visa but are working in breach of their visa conditions — such as international students exceeding permitted hours, or working holiday makers overstaying employment with a single employer location.

Penalties for businesses engaging workers in breach of Migration Regulations were first introduced by the Migration Amendment (Employer Sanctions) Act 2007, and significantly strengthened by the Migration Amendment (Reform of Employer Sanctions) Act 2013, which introduced “no fault” / Strict liability,civil liability and infringement notices. Since then, the legislative framework has continued to evolve.

Most recently, the Migration Amendment (Strengthening Employer Compliance) Act 2024 came into force on 1 July 2024, substantially increasing penalties, creating important new offences targeting employer exploitation of migrant workers, and introducing a Prohibited Employer Register. Simultaneously, the Department of Home Affairs and the Australian Border Force (ABF) have intensified their compliance and enforcement activity.

Most affected by the Legislation are:

  • Employers: who are responsible for direct employees as well as any contractors they have working on site.
  • Recruitment and Labour Hire companies: who need to check every candidate before referral to an employer.
  • Company directors and officers: who may be personally liable if they don’t implement adequate systems and processes to check work rights.

What Has Changed?

The 2013 Legislation — The Foundation

The Migration Amendment (Reform of Employer Sanctions) Act 2013 introduced a “no fault” civil penalty system, meaning businesses could face fines regardless of whether they knew a worker was in breach of visa conditions. It also introduced infringement notices — allowing the Department to impose fines without court proceedings — and extended liability across contracting arrangements and to executive officers personally.

The 2024 Legislation — The Next Step

The Migration Amendment (Strengthening Employer Compliance) Act 2024, which received Royal Assent on 20 February 2024 and took effect on 1 July 2024, makes the following significant changes:

  • Significantly increased civil and criminal penalties across all categories of work-related offences.
  • Introduction of new criminal offences targeting employers who coerce, pressure or unduly influence migrant workers to breach visa conditions or accept exploitative work arrangements.
  • Establishment of a Prohibited Employer Register — businesses found to have seriously, deliberately or repeatedly breached migration and employment laws can be banned from hiring temporary migrant workers for periods of up to 5 years, or in the most serious cases (such as human trafficking) indefinitely.
  • Public naming of prohibited employers on the Department of Home Affairs website.
  • Repeal of the criminal offence of working in breach of visa conditions (previously under s.235), which had deterred exploited workers from reporting employers.
  • Strengthened reporting protections for temporary visa holders who report workplace exploitation.
  • Introduction of the Workplace Justice visa (subclass 408 pilot) allowing exploited migrant workers to remain in Australia to pursue workplace justice.
  • Enforceable undertakings — a new mechanism allowing compliance disputes to be resolved outside of court proceedings.
  • Enhanced powers for the Australian Border Force, including the ability to issue compliance notices requiring corrective action within 14 days.

Increased Enforcement Activity

Since July 2024, there has been a notable increase in compliance and enforcement activity by both the ABF and the Fair Work Ombudsman (FWO). Businesses across Australia including cities such as Sydney, Melbourne, and Hobart have experienced unannounced inspections. Employers found non-compliant have faced sponsorship cancellations, bans on hiring foreign workers of between three months and three years, and infringement notices.

Penalties for engaging illegal workers can be significant. If a business is found to have illegal workers, the Department of Home Affairs can impose a fine of $396,000 – for each person in breach of visa conditions. This can rise to $1,485,000 (for each individual infringement) plus up to 5 years in jail if they decide to take the business to court.

To comply with the Employer Sanctions Legislation, you must take ‘reasonable steps’ at ‘reasonable times’ to check visas. Undertaking a check before employment on an employee’s Australian Citizenship or visa status is not sufficient under this Legislation. An employee’s visa status can change after commencement of employment consequently putting the employer at risk.

For instance a working holiday maker may be able to work full time for six months, but can only work for 48 hours per fortnight if they move onto a student visa. Therefore checks need to be made through out the employment of the employee.

The penalties for non-compliance can be found here on the vSure website.