The Importance of Work Rights Checks & Potential Criminal Liability

More than ever businesses need to ensure they are immigration compliant and not facilitating wrongdoing when it comes to the employment of foreign workers.

The government recently introduced proposed legislation with the the Migration Amendment (Strengthening Employer Compliance) Bill 2023 (the Bill)  which creates additional offences to cover conduct by a person who knowingly unduly influences, pressures or coerces a temporary migrant worker to breach a condition of their visa. It will also exclude employers from employing temporary visa holders if the employer has been found to have previously underpaid visa holders. The Bill will also make it easier for visa holders to report instances of worker related exploitation.

This Bill along with recent announcements by the Australian Border Force, that it will increasing its activities and site visits, make it very important that clients review their immigration compliance readiness.

Checking Work Rights of Employees
Employers need to ensure that they are taking reasonable steps at reasonable times to verify the work rights of all employees. This includes verifying that all employees have permission to work and, if they are a visa holder, are only working within any work conditions/limitations imposed on that visa.

Reasonable steps at reasonable times include:

1. Sighting an Australian passport of any new hire and noting that this has been done. There is no requirement to keep a copy of the passport.
2. Conducting a VEVO check of any new hire who does not have an Australian passport and, if the person is on a temporary visa, conducting further VEVO checks at regular intervals during the person’s employment. The Department of Home Affairs recommends that this be done every three months, but this will depend on the visa that the person holds. For example, a student visa will require a check every three months as this visa could be cancelled without the employer knowing, but a TSS will not as the employer will be aware of the work rights of the employee.
3. Having a contract with a third party to conduct these checks.

Failure to conduct these checks could result in an employee working without work permission or in breach of their visa. These are criminal offences and can result in serious consequences including:

1. Fines of up to $93,900 per offence against the company ($469,500 if the employee has been exploited)
2. Imprisonment of up to 2 years per offence against any office holder of the company or other individual knowingly or recklessly involved in allowing the employee to work (up to 5 years if the worker has been exploited).
3. Cancellation of the company’s ability to sponsor workers and publishing in public database (Home Affairs) of sanctioned employers.
4. Cancellation of the employee’s visa.

Work Rights of other people
Companies and individuals also need to be aware of risks of penalties arising from other arrangements that may result in allowing a person to work without a visa or in breach of a visa condition. Failure to check work rights in these circumstances may result in the company, its office holders and any employees involved being liable for criminal prosecution. Such arrangements could include:

Contractors
Companies should also undertake the above work rights checks in relation to contractors who are engaged directly to provide services other than through an employment contract.

Workers supplied under labour-hire arrangements
Companies using workers supplied under a labour-hire arrangement should, at a minimum, seek assurances in the contract for labour that the supplier of the labour has ensured and warrants that each worker has the appropriate permission to work and that the work rights of any visa holder is being regularly checked. If any workers supplied hold TSS visas then the supplier should be asked to provide evidence of an approved Labour Agreement with the Department of Home Affairs allowing those workers to be ‘on-hired’.

Employees of other service providers
There is no requirement to check the work rights of employees of third-party suppliers. However, if the company becomes aware that the employees of the supplier are working without or in breach of their visas or do not have visas, then the company receiving the service could be found to be involved in an arrangement to allow that to occur, unless steps are taken to ensure that such breaches are not occurring.

The seriousness of any offence would be exacerbated if it was found that the workers are being exploited, for example through debt bondage by creating liabilities for having been sponsored.  In such cases, much higher penalties apply. The risk of this is increased when dealing with unknown labour suppliers or contractors and so companies should be additionally vigilant with this.

Extended liability of executive officers and employees
Executive officers (Directors, CEOs, CFOs, etc.) of companies can be found personally guilty of these offences if the company is found to have allowed a person to work without a visa or in contravention of a visa condition and:

the officer knew that, or was reckless or negligent as to whether, the work-related contravention would occur;

the officer was in a position to influence the conduct of the body in relation to the work-related contravention; and

the officer failed to take all reasonable steps to prevent the work-related contravention.

It is therefore critical that company officers be involved in the planning and decision making around the processes and steps that a company will take in relation to work rights checks.

In certain circumstances other individuals such as managers or mobility professionals could also be guilty of offence if they were knowingly involved in them.

Next steps
All companies should check their work rights verification processes to ensure that they comply with all requirements and would provide defences against any allegation of wrongdoing.

Should you need assistance in reviewing what your company is currently doing in relation to work rights verification, you should contact your Ajuria account manager or usual contact.

Further compliance updates will follow.

DISCLAIMER This information is current as of 5 September 2023 and is subject to change with little notice. This publication is of a general nature only and should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

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