Penalties For Employers Engaging Illegal Workers
- 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 Department to undertake court proceedings, and the fine will stand unless the business can provide evidence in defence.
- Proceedings for Civil Penalty Order – The Department 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 Department 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:
|Infringement Notice||Civil Penalty Order||Criminal Offence||Aggravated Offence|
|How Enforced||Issued by DIPB||Civil Court Proceedings||Criminal Court Proceedings||Criminal Court Proceedings|
|Fault Element||None||None||Knowledge or Recklessness||Knowledge or Recklessness|
|Fine – Corporate||$28,170||$140,850||$187,800||$469,500|
|Fine – Individual||$5,634||$28,170||$37,560||$93,900|
|Other||Up to 2 years’ imprisonment||Up to 5 years’ imprisonment|
Note that these penalties apply for each offence – if a number of workers are detected working illegally, the fines could be very significant indeed.
The proposed Migration Amendment (Strengthening Employer Compliance) Bill 2023 will see that “Penalties under the Migration Act will be significantly increased to better deter unscrupulous employers.”
Failure to meet employer obligations
An employer who fails to meet their obligations may receive an infringement notice for:
- allowing an unlawful non-citizen to work (s245AB)
- allowing a lawful non-citizen to work in breach of a work-related condition (s245AC)
- referring an unlawful non-citizen for work (s245AE)
- referring a lawful non-citizen for work in breach of a work-related condition (s245AEA).