Cherie Wright, Senior Associate, Fragomen
Employers could face hefty penalties and criminal records if found guilty of breaches under the proposed Migration Amendment (Reform of Employer Sanctions) Bill 2012.
The exposure draft of the Bill, released for comment by the Government in August, proposes strict liability offences for employers that allow or refer illegal workers or temporary visa holders to work in breach of the conditions on their visas. The proposed changes include graduated tiers of infringement notices and non-fault civil penalty provisions.
The reforms are the outcome of recommendations made by barrister Stephen Howells following his 2010 review of the employer sanctions legislation.
What will this mean for employers?
Under the existing Migration Act 1958, it is a criminal offence for an employer to knowingly or recklessly allow a temporary visa holder to work in breach of a work condition on their visa or, if the company is involved in on-hire, to knowingly or recklessly refer a temporary visa holder to work in breach of a work condition on their visa.
This applies equally to employers who allow (or refer) a person without a visa (an unlawful non-citizen) to work in Australia.
Currently, to prosecute a company or on-hire business for such breaches, proof beyond reasonable doubt is needed that they acted with knowledge and intention (ie recklessness).
However, the new Bill proposes a significant change. It intends to restructure these criminal offences to incorporate non-fault civil penalties. As a result, an employer could contravene the civil penalty provisions without knowing or being reckless about a worker’s immigration status or work entitlements. The Bill also seeks to extend criminal liability and civil liability to executive officers of body corporates.
If the Bill succeeds, offences will incur hefty civil penalties of up to $49,500 for corporate bodies and $9,900 for individuals. Infringement notices of up to $9,900 and $1,980 for corporate bodies and individuals respectively will also apply.
In addition, companies who sponsor foreign workers under the 457 visa program and fail to comply with their obligations can lose their sponsorship and face financial penalties.
Importantly, employers who demonstrate they took reasonable steps at reasonable times to verify an employee’s eligibility to work will have a statutory defence under the proposed legislation. This will include employers who show they used the Department of Immigration & Citizenship’s free Visa Entitlement Verification Online (VEVO) service to check a prospective worker’s work entitlements (with the worker’s consent)or who can otherwise demonstrate satisfactory evidence of the worker’s Australian citizenship, permanent residency or visa with current permission to work.
Do you have a culture of immigration compliance in your workplace?
The proposed non-fault civil penalties amplify how crucial it is to have appropriate policies and procedures in place, not only to check a worker’s permission to work, but also to educate the business about the importance of migration compliance.
Fragomen’s Compliance and Advisory team assists corporates in developing policies and processes to assist in the proper compliance management of any company’s foreign workforce, including the checking of worker’s work entitlements. Fragomen’s Workforce Migration Training (WMT) courses raise workforce awareness about the importance of immigration compliance in your business.
Developed by our expert lawyers and delivered face-to-face and online by CENTIEM, Fragomen’s dedicated training centre, the courses help to ensure all staff, including visa-holding staff, act within the rules. All courses can be customised to your organisation’s requirements and policies.
To find out how WMT courses can help you protect your company’s access to foreign skills go to www.centiem.com or contact Cherie Wright.