Liability for Contractors and Temps Engaged by a Business

Businesses may be liable for any illegal workers engaged as a contractors or temps, even if they are not direct employees of the business.

Under the Employer Sanctions Legislation, penalties apply if a business allows a person to work, or continues to allow a person to work in breach of visa conditions.

This clearly covers direct employment arrangements, but under the 2013 Employer Sanctions Legislation, contractors and temps are also captured. The Migration Act defines “allow to work” as follows:

The first person participates in an arrangement, or any arrangement included in a series of arrangements, for the performance of work by the second person for the first person or another participant in the arrangement or any such arrangement.

This is a very broad definition, and is intended to arrangements such as labour hire and use of workers within various entities within a conglomerate. However, it gives Immigration the flexibility to regard just about any “arrangement” as deemed employment for the purposes of the new legislation.

Businesses should take steps to verify that workers have the correct work rights whether they are direct employees, temps or contractors, otherwise they may be committing an offence under the new legislation.