June 13, 2013

Since 2007 it has been a criminal offence to employ or refer to work someone who is not allowed to work in Australia, including both paid and unpaid work. Based on the new Migration Amendment (Reform of Employer Sanctions) Bill 2012 to the Migration Act 1958, the Australian Department of Immigration and Citizenship (DIAC) has implemented new civil penalties, taking effect on 1st June 2013, that can apply to persons or businesses that employ, refer or contract an illegal worker. The law also broadens who can be held liable and provides new methods for gathering evidence.

Employing Legal Workers

The new Amendment acts as the Government’s response to the independent Report of the 2010 Review of the Migration Amendment (Employer Sanctions) Act 2007

(referred to as the Howells Review), which argued that the existing employer sanctions framework was an ineffective measure against the number of employers and labor intermediaries who persistently allow or refer non-citizens to work without the required work authorization.

DIAC’s main focus is to penalize businesses that willfully take part in illegal work, as opposed to business that have acted on good faith. Businesses that can show they have taken reasonable actions within a reasonable time frame to confirm that a non-citizen is allowed to work are therefore provided with legal defenses that can be used under migration law against allegations of hiring, contracting or referring a non-citizen without work authorization:

  • Viewing evidence of the worker holding an unrestricted right to work in Australia.

This can most easily be evidenced by proof of Australian citizenship (i.e. copy of Australian passport) or permanent residence (i.e. copy of permanent visa). In the uncommon situation whereas the employee cannot readily produce documents indicating their Australian citizenship or permanent residency the DIAC provides examples of other types of information and documentation that can be requested from the person and are considered as reasonable steps taken by the DIAC. Your Pro-Link GLOBAL Immigration Specialist and Australian immigration provider can provide further advice in case your company has an employee to which this applies.

Companies can either register for VEVO, which allows consultation of the VEVO service directly online, or, alternatively, can ask the non-citizen to login to VEVO as a visa holder and send their current visa entitlements directly from the department’s VEVO Email service.

  • Entering into  a contractual arrangement with another party to verify that workers are allowed to work in Australia and/or supply workers who are allowed to work  in Australia.

In order to contract out the responsibility to check the work authorization status of the workers that are being provided by a contractor or labor hire company, the contract between the two parties should either include a specific clause to this effect, or specify in writing that only non-citizen’s with the required work authorization will be provided.

Extended Liability

Under the new law, liability has been extended to include individuals, corporate bodies, partners in a partnership and members of an unincorporated association. Additionally, executive officers of a corporate body can be held criminally liable for work-related offences and civilly liable for civil penalty provisions in circumstances where the officer knew that, or was reckless or negligent as to whether, the work-related offence or contravention would occur, and the officer was in a position to influence the conduct of the body in relation to the offence or contravention and the officer failed to take reasonable steps to prevent the offence being committed or the contravention.

Evidence Gathering Powers

The new law also provides the authorities with two distinct evidence gathering powers:

  • A notice to produce power:

Upon receipt of a notice from the DIAC a recipient is required to provide documents or information that are believed to be relevant to a possible work-related offence or possible contravention of a work-related provision. The minimum amount of time the person is given to respond to the notice is 14 days. The Amendment removes the privilege against self-incrimination in relation to proceedings for a civil penalty order for an alleged contravention of a work-related provision.

  • A search and entry warrant power:

A search warrant can be applied for in cases where it is likely that the DIAC and the Commonwealth Director of Public Prosecutions would pursue a civil penalty order or criminal conviction.

ACTION ITEMS FOR EMPLOYERS

Pro-Link GLOBAL is reminding HR to keep clear records of all their employees’ Australian citizenship or non-citizen work authorization statuses and to check the work authorization status of new candidates through VEVO going forward. When in doubt, please contact your Pro-Link GLOBAL Immigration Specialist to assist in determining whether someone’s immigration status allows the person to work in their specific position at your company. Pro-Link GLOBAL will also be able to assist your company with setting up procedures to ensure your company’s compliance with immigration and foreign employment legislation now and in the future. Companies are reminded that the new law provides the DIAC with powers to audit the company’s or immigration supplier’s files to confirm the company observes all applicable Australian immigration compliance requirements, as well as force the employee directly to provide documentation, even if this information would potentially be self-incriminating. Depending on the severity, offenses can lead to either civil or criminal penalties, ranging fines of up to A$20,400 for an individual and/or up to 2 years imprisonment, and fines of up to A$102,000 for companies and/or two years imprisonment per illegal worker.

Caveat Lector | Warning to Reader

This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by the Pro-Link GLOBAL Knowledge Management Team. Pro-Link GLOBAL worked with our PLG | KGNM Correspondent Office in Australia to provide you this update.

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