“OUCH” Hefty Penalties for Hiring Unlawful Workers

Fines

The 2013 Employers Sanctions Act gives the Department of Home Affairs a wide range of possible sanctions which can be imposed on employers and agencies:

Warning – generally an Illegal Worker Warning Notice (IWWN) will be issued on the first offence Infringement Notice – if the conduct continues, the Department can issue an infringement notice requesting payment of a fine. This does not require the DIBP to undertake court proceedings, and the fine will stand unless the business can provide evidence in defence.

Proceedings for Civil Penalty Order – The DIBP can also undertake civil proceedings for offences. This can result in a higher fine for the business, as well as the additional costs and inconvenience of undertaking court proceedings.

Criminal Proceedings – For serious or repeated offences, criminal proceedings can be undertaken. In this case, the DIBP would need to show intention or recklessness on behalf of the business. Higher fines are applicable, as well as possible imprisonment of up to 2 years for each offence.

Aggravated Offence – These are criminal offences which apply where there has been exploitation of workers (e.g. forced labour, sexual servitude or slavery). Imprisonment of up to 5 years is possible for these offences.

The penalties and process for each level of offence are summarised below:

Table 1

Employers can be fined even though they are not aware that people are working illegally.

The civil penalties apply regardless of a person’s;

  • Intention
  • Knowledge
  • Recklessness
  • Negligence
  • Any other State of mind

Ref: s.486ZF

Note that these penalties apply for each offence – if a number of workers are detected working illegally, the fines could be very significant indeed.

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