The TTIA’s Brian Beecroft outlines employer obligations with regard to the Fair Work Commission, and penalties for non-compliance.
A TTIA Member was recently seeking clarification about hiring a new worker and raised a question on the TTIA Industrial Hotline. The query was whether there was a specific obligation to make appropriate checks on an employee’s right to work in Australia.
The law does indeed provide a positive duty for employers to do their due diligence in that situation.
It also needs to be made clear the Fair Work Commission is on the lookout for employers who don’t comply with this obligation (so is the Australian Border Force) and, under the Migration Act, employers could be fined up to $255,000.
What to know
It’s the employer’s responsibility to check whether workers can legally work in Australia. This includes employees contractors, and any other workers sourced from labour-hire arrangement or recruitment agencies, and it applies to both paid and unpaid work.
Put simply, a person does not have a right to work in Australia if they are one of two things: first are those illegally staying in Australia – foreign citizens without a valid Australian visa, called ‘unlawful non-citizens’; and second are those ‘lawful non-citizens’ who have a valid visa to stay in Australia, but with work-related restrictions.
Those not well-versed in all the different types of visas and their working conditions can head over to the Australian Government’s Visa Entitlement Verification Online (VEVO) at homeaffairs. gov.au/visas. There the working conditions attached to each visa can be checked. Employers need a worker’s permission to access their VEVO details, so make sure this permission is part of the on-boarding process.
Non-compliance penalties
Employers could face penalties for engaging a person who does not have a valid right to work in Australia.
Fines range up to $102,000 (and, for more ‘aggravated’ breaches such as forced or exploitative labour, this number can go up to $255,000).
In 2013 the law was changed to introduce stricter provisions. Employers could still face penalties even if they unknowingly employ a person without valid working rights. This new law places a positive obligation on every employer to actively make sure their employees have valid working rights. Employers who fail to comply could be liable for fines up to $76,500.
It’s also worthwhile noting even executive officers could be held personally liable if they:
• Were aware of the breach,
• Influenced the employer in the breach, or
• Failed to take reasonable steps to prevent the breach.
What to do
The last thing anyone wants is the headache of an investigation and the possibility of heavy fines hanging over a business. Under the Migration Act, employers must take ‘reasonable steps’ to check the working status of their employees and contractors. This includes keeping records of employees’ working status and making the necessary enquiries.
Don’t turn a blind eye if it’s suspected a worker doesn’t have the requisite visa status, particularly for those employing someone who has a temporary working visa. The employer has an obligation to continue to check employees’ work rights until their employment contract ends.
Proving valid work rights
To prove they have a right to work in Australia, employees can provide the following documents: • An Australian birth certificate and a photo ID
• An Australian citizenship certificate
• An Australian passport
• A New Zealand passport
• A New Zealand birth certificate and a photo ID
• A certificate of evidence of resident status
• A valid visa with relevant work rights.
To avoid penalties, it’s a good idea to be proactive about checking employees’ work rights from the very beginning.
Some examples of good practice include:
• Posting job advertisements specifying applicants must have valid working rights in Australia before applying
• Introducing employee screening processes with compulsory reviews of employees’ work rights when they start work, and
• Reviewing any contracts with thirdparty labour-hire or recruitment companies to ensure they are also checking the rights of suggested workers.
For employees on temporary visas, be sure to schedule regular check-ups of their working status.
For further questions around employing (or sponsoring) visa-holders, the Department of Home Affairs has a handy resource at immi.homeaffairs.gov.au. For any questions about other obligations before taking on a new employee, a checklist is available at business.gov.au.
Employers beware
The duty of a business to check whether workers have the right to work in Australia is something that can often be forgotten. While a person might be employed in good faith, employers are required by the law, monitored by the Fair Work Commission, to take reasonable steps to check their working status. It’s a good idea to be proactive because, “I didn’t know,” is no longer an excuse.
Investigations are a headache; fines are heavy, and the last thing anyone wants is to find out a valuable employee is employed illegally. The TTIA Legal Department can offer more clarification on this issue if needed.