Dodgy Migration Practices To Be Met With Severe Penalties
The recent Fairfax investigation into the popular pizza fast good chain ‘Dominos’ has uncovered not only practices of underpayment of migrant workers, but also exposed “selling” sponsorship activity by franchisees who were offering visa sponsorship for $30,000-150,000.
The Fairfax Investigation, ‘The Domino’s effect’ uncovered issues of underpayment of wages, claims of workers forced to do unpaid overtime, tampering with rosters, and workers working in breach of visa conditions, reminiscent of the visa and wage fraud occurring at 7-Eleven franchise stores.
But this is more than a case about exploitation of migrant workers. To us, it highlighted that employers and businesses need access to education and the Australian laws which apply when employing foreign workers. Employers need to understand how their business model can lead to the use of the sponsored visa program where there is downward pressure on wages or shortfall of profits.
What is the law on selling visa sponsorship?
In December 2015, a new legal framework was introduced to prohibit providing or receiving a payment or other benefit in return for a visa sponsorship. Since the laws were introduced, employers and employees must not offer or give, nor seek or receive, and kind of benefit in exchange for sponsorship.
Individuals or companies found to be offering payment for visa sponsorship can be liable for civil or criminal fines and penalties of up to $64,000 for an individual and $324,000 for a company, and jail time for individual directors and managers. Companies can also be barred from sponsoring workers, and have current sponsorships cancelled.
Directors of companies can also be liable for any fines or penalties imposed by the Courts for breaches of the law. For example, a director can be held liable as an accessory to the breach if the knowingly or recklessly allowed the breach to occur under their watch.
Working in breach of visa conditions
There are also strict laws for employers to adhere to when employing foreign workers.
Employers must not allow workers to work if the worker does not have work rights or the work would breach the worker’s visa conditions. Employers found to have allowed an employee to work in breach of their visa can face civil penalties of up to $81,000, or five years’ imprisonment and fines of up to $270,000 for criminal conduct.
The landscape is changing
We are seeing greater collaboration and joint enforcement activity amongst various regulatory bodies.
For example, a number of joint investigations were carried out in 2016-17 by the Fair Works Ombudsman (FWO) and the Department of Immigration and Border Protection (DIBP) uncovering breaches by employers of both workplace and immigration laws resulting in heavy penalties and reputational damage. FWO now has a dual role enforcing fair work and migration laws, and is actively auditing compliance of employers particularly in agriculture, tourism and hospitality industries.
The focus of enforcement activity is also broadening to look at the conduct beyond the confines of the direct employer – looking within franchise groups and supply chains of companies, as well as to the conduct of company directors and senior managers and their knowledge or complicity in the breach.
Is your business compliant?
Given the regulatory environment and the growing levels of migrant workers in Australia, it is timely for employers to review their workplace policies, procedures and practices to ensure that they comply with all relevant laws.
We offer “health checks” to give you peace of mind that your workplace is compliant with migration laws. We can also help you to develop an auditable compliance program to ensure your business is adhering to the current policies, systems and procedures you need for legal compliance.
Contact our specialist employer migration team on firstname.lastname@example.org or (02) 8896 6056 for details.