employee work rights in Australia
This case comes at the same time other Australian businesses have faced very public investigations by the Department of Immigration and Border Patrol (DIBP) for alleged breaches of sponsorship and visa conditions of foreign workers.
Many employers are not aware immigration compliance is relevant for all businesses regardless of size or whether they hire local employees or employees on work visas.
Increase in enforcement action
From 1 July 2015, the federal government introduced a new enforcement arm of the Department of Immigration, called Australia Border Force.
Since then, there has been a rise in the number of investigations and enforcement action being taken against businesses that failed to provide pay and work conditions in accordance with immigration and workplace laws.
In September 2015, Pie Face’s head office was raided by the Australian Border Force following a tip-off 457 visa workers were being underpaid. The raid was part of an integrity and compliance operation by the DIBP and accounting and payroll records were likely seized to verify the pay and work conditions of the temporary visa holders.
In August 2015, Australia Post was investigated by the Australian Federal Police regarding allegations one of its contractors was bringing overseas students to Australia on the promise of a working visa or permanent residency, and then subcontracting them to Australia Post to sort and deliver packages for sub-award wages.
In April 2015, a Darwin hospitality operation was fined $175,000 for underpaying 10 Filipino workers and forging documents to conceal breaches of visa conditions.
These cases are a sign of more to come.
Employer’s obligations
Australian businesses are obliged to only employ staff authorised to work in Australia and to comply with any visa employment conditions. This includes Australian citizens or permanent residents, or employees holding a temporary visa with rights to work.
The Migration Amendment (Reform of Employer Sanctions) Act 2013 creates a strict liability offence for any business that employs a person, allows a person to be employed, or refers a person for work, without work rights in Australia. This includes both employees and contractors.
Employers must take “reasonable steps” to verify that a person is authorised to work in Australia. Failing to do so is a breach of these laws.
Consequences of non-compliance
Under the legislation, Fair Work inspectors are empowered to check employers are compliant. The onus is on an employer to be able to produce records or otherwise demonstrate that steps to verify a person’s work rights were taken.
Employers who fail to comply with these laws can incur significant penalties. In addition, where a breach of the law occurs “knowingly or recklessly” by an employer, the executive officers of the business can be fined or sentenced to a period of imprisonment of up to two years.
It’s important employers have adequate procedures and systems in place to manage immigration compliance.
What can you do?
Adopt these simple guidelines in your business to manage these risks:
- Maintain personal records for all new and existing employees detailing: Australian citizenship, permanent residency, or New Zealand citizenship; and each temporary visa holders’ work rights and conditions
- Conduct regular checks of work rights for temporary visa holders using the DIBP’s Visa Entitlement Verification Online (VEVO) System. A good rule of thumb is to refresh these records every three months for the duration of an employee’s employment.
- If your business sponsors 457 visa holders, monitor the tasks and duties performed by the visa holder to ensure they are consistent with the occupation for which the visa holder was granted their visa.
- Ensure that procedures and training provided to persons responsible for maintaining compliance with immigration laws are documented.
- Keep documentation relating to work rights verification of individual employees.
- Regularly review your employment contracts to ensure they comply with current immigration law and policy and contain appropriate provisions.
It can also be helpful to centralise your business’ compliance program by appointing a compliance manager to oversee the company’s immigration program and compliance efforts.
Compliance and reputational risks to business can be significantly reduced if some of these simple recommendations are implemented.
