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All Australian businesses were already under the obligation to only employ staff authorized to work in Australia. Those businesses that are registered to sponsor overseas employees have additional obligations as well, such as a duty to provide notifications to the Department of Immigration and Border Protection and to ensure that visa holders receive market salary wages, among other record keeping obligations.
But, with the enactment of the Migration Amendment (Reform of Employer Sanctions) in 2013, it is now a strict liability offense to employ a person, allow a person to be employed, or refer a person for work, without work rights in Australia. This includes both employees and contractors. The import of this legislative change is that a lack of scienter defense has been obviated; unless employers have taken demonstrably reasonable steps to verify that a person is authorized to work, they are in breach of these laws.
To that end, Fair Work Inspectors are now empowered to check that employers are, in fact, in complete compliance. Failure to adhere to the immigration laws can result in significant penalties, including fines or even imprisonment. Moreover, where the law is breached knowingly or recklessly the period of imprisonment for executive officers can be up to 2 years—a penalty not available in the United States.
To comply with the legislation, all employers must take certain steps to verify that they only employ people with Australian work rights. Some of the necessary steps include:
- Maintaining records for all new and existing employees that show Australian citizenship, permanent residency, or New Zealand citizenship;
- Maintaining records of all temporary visa holders’ rights;
- Checking work rights of temporary visa holders using the Department of Immigration’s Visa Entitlement Verification Online System every three months for the duration of their employment.
Because managing these obligations in a large business can be a challenge, it is critical that businesses have effective systems in place as well as persons appointed to centralize and oversee the company’s compliance efforts. They must also stay actively abreast of developments or changes in the immigration laws to avoid the imposition of severe penalties or fines.
Not admitted to the practice of law.
