Breach visa conditions at your peril

It is already an offence for businesses to have illegal workers. New legislation allows the Department of Immigration to levy fines on a strict liability basis, without needing to show any intent, knowledge or recklessness by the business. Mark Webster outlines the repercussions for business.

BY External 25 Feb 2013

There are currently 1.6 million people in Australia holding temporary visas, each with different visa conditions and expiry dates. Keeping track all the details to make sure all staff are working legally can be overwhelming.

On top of this, the Department of Immigration has announced Employer Sanctions legislation to fine employers who engage workers in breach of visa conditions.

Employer Sanctions Bill

The Department of Immigration introduced the Employer Sanctions Bill in 2012. The House of Representatives passed the Employer Sanctions Bill in November last year and it is expected to take effect in March 2013.

The new legislation puts the onus on businesses to thoroughly check the work rights of employees.

People most affected by the new legislation are:

Employers – who are responsible for direct employees as well as any contractors they have working on site.
Recruitment companies – who need to check every candidate before referral to an employer.
Company directors and officers – who may be personally liable if they don’t implement adequate systems and processes to check work rights.

If a business is found to have illegal workers, the Department of Immigration can impose an instant fine of $9,900 - for each person in breach of visa conditions. This can rise to $49,500 per worker if they decide to take the business to court.

It is already an offence for businesses to have illegal workers. The new legislation allows the Department of Immigration to levy fines on a strict liability basis, without needing to show any intent, knowledge or recklessness by the business.

Keeping Compliant

To avoid the new fines, employers must check work rights prior to employment and also keep a record of visa expiry dates so that the employee does not continue to work after their visa ceases. Records of visa checks should be kept just in case there is an inquiry from the Department of Immigration.

Most employers currently check work rights before an employee commences employment. However, this does not guarantee that the employee continues to have work rights on an ongoing basis - for instance:

The employee's visa may be cancelled meaning that they no longer have work rights - this is particularly common for international students
For bridging visa holders and temporary partner visa holders, the employee's main visa application may be refused, in which case work rights would generally cease within 28 days
An employee may move onto a visa with less favorable work rights – for instance a working holiday maker may be able to work full time, but can only work for 40 hours per fortnight if they move onto a student visa

Unless visa checks are being conducted regularly, a business may unknowingly be breaching the Migration Regulations by engaging workers without proper work rights.

Conclusion

The Employer Sanctions Bill significantly raises the immigration compliance bar for businesses. Many will need to revise their visa checking systems and processes to avoid the hefty fines and embarrassment of breaching the new legislation.

About the author

Mark Webster is CEO, vSure. Mark has written a white paper on the effect of the Employer Sanctions Bill on businesses and how employers can ensure that they are compliant. To request a copy of the vSure white paper email [email protected]