Employer Sanctions Legislation

For every business, the possibility of accidentally hiring an illegal worker – a non-citizen worker without a visa or in breach of visa conditions – is increasing.

The Department of Home Affairs is concerned that work in breach of visa conditions has become widespread – and they have decided to take action by introducing the Employer Sanctions Legislation. The Migration Amendment (Reform of Employer Sanctions) Act commenced on 1 June 2013.

The Employer Sanctions Legislation puts the onus on businesses to thoroughly check the work rights of employees. Strict liability applies, meaning that employers may face fines even if they do not know that they have staff working illegally.

Most affected by the new Employer Sanctions 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.

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 $24,750 – for each person in breach of visa conditions. This can rise to $412,500 (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 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.

New legislation

The proposed Migration Amendment (Strengthening Employer Compliance) Bill 2023 will see a raft of changes designed to strengthen employment laws relating to temporary visa holders, most notably “Penalties under the Migration Act will be significantly increased to better deter unscrupulous employers.”

Per: https://minister.homeaffairs.gov.au/AndrewGiles/Pages/tackling-temporary-worker-exploitation-05062023.aspx