How To Avoid Penalties For Having Illegal Workers

The use of overseas workers in Australia and suspected “rorting” of Employer Sponsored visas (like 457) has been a controversial topic of discussion this financial year.

Although the severity of businesses taking advantage of 457 visa workers or employing illegal workers in Australia is debated, the Australian Government has implemented drastic measures in a bid to control the amount of people working illegally (with no visa or incorrect work rights) in Australia.

Are you aware of the new Employer Sanctions Legislation and how it will affect businesses who hire overseas employees?

Unfortunately not many business owners, directors or company officers are aware of the legislation, although there are dire financial and reputational consequences for being found in breach.  Infringement notices of $15,300 and upwards to $76,500 can be imposed on businesses for each employee found to be working illegally in Australia.  Not only that, but the Government will happily name and shame businesses found to be hiring illegal workers.

It has always been illegal to employ overseas workers who do not hold the correct visa or work rights in Australia, but in the past it was difficult for the Government to take action and provide evidence against businesses to have “recklessly known” they had illegal employees.  The new legislation essentially gives them more power to impose infringement notices on businesses with illegal employees without needing to provide proof the business were knowingly negligent in their compliance.

Who takes the brunt if a business is found to have illegal workers in Australia?

Employers, Company directors and officers, and recruitment companies will now be deemed directly liable for each person employed or referred without the correct visa or work rights.  This is an unnecessary strain for employers to deal with if they implement the right systems to keep compliant and avoid the painful infringement notices.

How can businesses keep compliant?

Some businesses only check the visa status of new employees at the time of recruitment, unaware of the continuously changing nature of people on temporary resident visas in Australia.  Although an employee may have the correct visa and work rights at the start, their status could change throughout their employment without notifying their employer.

Things to think about:

• Student visa holders are only allowed to work 40 hours a fortnight
• Bridging Visas may give full work rights, but this status can change at the time of their application being processed.  If their visa application is refused, they have 28 days to leave!
• Employees can change from one visa to another during their employment and not notify their employer – for example, change from a visa with full work rights to another with limited or no work rights.
• Visas can be cancelled at any time if found to be in breach of visa conditions – what happens if the employee does not notify their employer?

The Old Way

It is evident that businesses need to implement regular practices to ensure that their overseas employees hold the correct visa and work rights throughout their employment.  One way to do this would be the time and resource wasting practice of manually entering the details of every temporary resident employee into the Department of Home Affairs’ online visa checking system at periodic periods throughout the year, remembering to print a copy of each check performed to create an auditable paper trail. This means collecting every temporary resident employee’s passport details and entering them every single time their visa status needs to be checked to keep compliant with the new legislation.

The Smart Way

A more efficient and productive practice would be for businesses to implement vSure, an all-in-one Australian Immigration Compliance tool. vSure is cloud based software that ensures businesses will keep compliant with the new legislation by providing automated visa checks and reports on all temporary resident employees entered into the system.  All businesses have to do is enter their employees’ details into the system once and vSure will do all the work behind the scenes for the duration of employment. It also creates an auditable paper trail for businesses automatically through automated reports and storage.

If there are any changes to the visa status of employees entered in the system, vSure will provide alerts and simple instructions on how to fix the problem so businesses will keep compliant with the Government’s legislation.

The Government may be ruthless in ensuring compliance with the new Employer Sanctions Legislation with the new penalties and infringement notices, but with vSure visa checks are made easy.