New measures aimed at cracking down on employers using and exploiting illegal workers have recently been given royal assent. The Migration Amendment (Reform of Employer Sanctions) Bill 2012 (the Bill) will take effect later this year and will introduce new penalties and sanctions for employers who hire illegal workers.

The offences

The offences in the Bill relate to the employment or referral (involving a labour hire agency, for example) of someone who:

  • has no right to work in Australia; or
  • works in breach of their visa working restrictions

Currently, employers can face civil and criminal penalties if they employ or refer illegal workers with the knowledge that they fall within one of the above categories or are reckless as to whether the person falls within one of those categories.

Under the new provisions, civil penalties can be imposed in non-fault cases. This means that an offence will be committed irrespective of whether the employer had knowledge of the worker’s illegal worker status or acted recklessly in that regard. It will be enough that the illegal worker was simply employed or referred.

Personal liability

The Bill also creates greater consequences for executive officers of companies (which include the CEO, CFO, directors and company secretary) by extending personal liability to them for civil and criminal offences. This will arise where an executive is found not to have taken all reasonable steps to prevent a contravention of the provisions and that he or she also had knowledge or was reckless as to the fact that an employee was an illegal worker.

Other senior managers who are found to have participated in the employment of an illegal worker may also face liability.

Creation of a statutory defence

Although the introduction of the non-fault offences will mean that offences are more easily made out, the Bill also makes new defences available to employers who make genuine attempts to verify a candidate’s right to work.

Provided that an employer can demonstrate that they took reasonable steps at reasonable times to verify an employee’s right to work no offence will be committed.

Reasonable steps may include:

  • carrying out checks using the Department of Immigration and Citizenship’s online verification service VEVO;
  • requiring a sighting of a candidate’s proof of Australian citizenship; and
  • requiring a sighting of a candidate’s original visa to confirm its validity and any working restrictions.

What should employers be doing?

Employers should take the following practical steps prior to the Bill coming into effect:

  • review their recruitment procedures;
  • ensure that pre-employment vetting is carried out to establish the working rights of new employees;
  • maintain records of all checks which are conducted; and
  • ensure that any offers of employment are made conditional upon the employee having the right to work.

Did you know? …

The Federal government is proposing that the Fair Work Ombudsman (FWO) be given powers to ensure that 457 visa conditions are complied with. This would enable the FWO to ensure employees are working in the job specified on their visa and are being paid market rates of pay. The FWO would have the power to refer any suspicious behaviour to the Department of Immigration and Citizenship for further investigation. The proposed changes are intended protect workers’ rights and combat abuse of the skilled migration program. The changes would not impose any additional compliance requirements upon employers who are doing the right thing.