Migration Law e-bulletin
Employee Work Rights & the Employer Amendments (Employer Sanctions) Act 2007 (Cth)Generally, only Australian citizens, Permanent Residents and New Zealand citizens (who have entered Australia on a valid passport) have unrestricted work rights in Australia. All other persons in Australia need to have visas which enable them to work lawfully. On 19 August 2007 the Employer Amendment (Employer Sanctions) Act 2007 (Cth) came into effect. The Act provides that employers and labour suppliers who knowingly or recklessly employ or refer people to work who had no work rights or work in breach of their visa conditions will face substantial criminal sanctions. This can include imprisonment and/or substantial monetary penalties. One area where employers commonly encounter difficulties is in relation to the employment of student visa holders who have restricted work rights. Non citizens working in breach of their work rights (or working unlawfully) are also subject to visa cancellation and exclusion from Australia. The Department of Immigration and Citizenship (DIAC) regularly conducts compliance checks of Australian employers. These measures augment the continuation of traditional compliance activities of joint field work activities with other departments such as the Workplace Ombudsman, the Australian Taxation Office, WorkSafe and Centrelink. Therefore, employers, recruitment firms and labour suppliers are strongly advised to check work rights with DIAC prior to the engagement of new employees. If current employees are found to be working in breach of their visa work rights then employers should seek appropriate advice. How do we check work rights? DIAC has a number of policy measures in place which aim to reduce illegal worker numbers in Australia, and to assist employers and others to not allow workers to work in breach of their work rights. To check work rights the following facilities are available:
Employers can also use the following documents to confirm a right to work:
Sanctions/Penalties If employers employ workers who do not have the appropriate work rights the employer faces:
In some circumstances, such as where a company expressly, placidly or impliedly authorised or permitted the commission of the offence, and the fault elements of 'knowledge' or 'recklessness' can be attributed to the company, then the company may be found guilty of an Employer Sanctions Offence under the Employer Amendment (Employer Sanctions) Act 2007 (Cth). An offence may also be committed by a company director or an authorised company agent, if it can be proved that their conduct could be assumed to represent the company's policy. It is vital that companies have a culture, practice, and procedures to protect itself from liability created by an agent's actions or inactions. There is considerable risk to a company for not properly checking employees' work rights during the recruitment process. Protocols and checks need to be in place as failure to do so can result in investigation, prosecution and substantial penalties. Contact David Stratton, Ryan Curtis-Griffiths or Helen Zheng, Lawyers in our Migration Law Work Group, if you require any further information in relation to this issue, or if you require legal advice regarding any aspect of the Employer Amendment (Employer Sanctions) Act 2007 (Cth). Our Offices
"Building quality relationships with clients"
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May 2009
David Stratton
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