Illegal Worker Compliance for Employers

How To Comply

If a person is detected working illegally, a business would need to establish one of the statutory defences to avoid civil penalties and comply with the illegal worker legislation.

The business will need to show that it has taken reasonable steps at reasonable times to verify the person’s work rights.

Reasonable Steps

“Reasonable Steps” could include:

  • Using a computer system prescribed by Migration Regulations to verify visa conditions before work and shortly after the expiry of the visa
  • Creating a contractual obligation for another party to verify the person’s work rights
  • Viewing an Australian or NZ passport, Australian citizenship certificate, or certificate of permanent resident status

Reasonable Times

Many employers check visa labels in passports prior to employing people. Unfortunately, this does not mean the employer will comply or establish a statutory defence under the new legislation.

In addition, circumstances may well change after a person commences work, for instance:

  • The person’s visa may expire
  • The person may have a bridging visa – if the application is refused, the person may no longer have work rights.
  • The person may obtain a further visa, which has reduced or no work rights
  • The person’s visa may be cancelled for breach of visa conditions

Unless the employer is checking the visa status of their employees regularly, there is no way for them to know whether these have occurred and they may unknowingly be committing an offence by continuing to employ the person.