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17 July 2013 Hiring a worker who is not an Australian citizen? Your responsibilities have now increased

By Laura Sowden, Solicitor and Warwick Ryan, Partner


In Brief

For some businesses attracting and retaining employees in low skill or alternately highly specialised roles is an ongoing challenge. To stay competitive and retain control of the labour spend, it can be necessary to employ workers who are not citizens of Australia. There has always been an element of risk for employers, attached to this issue. In March of this year the Federal Government increased the penalties on business for breaches of these responsibilities. Further, the legislation now squarely renders company directors personally liable for breaches. It represents yet another disincentive to an individual to assume a role as a director of a business in Australia.


Contraventions and Offences

Unlawful Non Citizens
Individuals who are not Australian citizens or permanent residents and do not hold a visa are not allowed to work in Australia.  The Amendment increases business and employer responsibility and liability for employing or contracting unlawful non citizens. Businesses bear responsibility if they allow unlawful non citizens to work for them unless they took reasonable steps to verify the person's visa status.

Lawful Non Citizens
Individuals who are not Australian citizens but hold a visa may be either:

  • permanent residents with unrestricted working rights; or
  • not permitted to work, or
  • permitted to work a restricted number of hours or
  • permitted to work only for a sponsoring employer.

The Amendment has also increased businesses responsibility for employing or contracting with lawful non citizens and then allowing them to work in breach of the work restrictions that are contained in their visa unless reasonable steps to verify the workers' visa status are taken.

Contravening the Act can result in a criminal offence if there is knowledge and or recklessness and carry a penalty of 2 years imprisonment for persons responsible. A civil penalty of 90 penalty units, which currently equals $15,300, is also available for individuals and businesses. There are aggravated offences if the person knows someone is working illegally and continues to employ them unless they took reasonable steps to verify the workers' visa status.

NOTE: the Act applies to workers and that means employees and contractors.

Reasonable Steps

The regulations do not currently outline any reasonable steps to be taken. However the Act does refer to using a computer system to verify visa status. One reasonable step employers can take is authenticating employees work conditions prior to commencing employment. In some cases a monthly checking system may need to be implemented as individual's visas, particularly student visas, can be cancelled at short notice. Businesses can make use of the Department of Immigration and Citizenships Visa Entitlement Verification Online (VEVO) service.

Executive Officers and Recruiters Also Responsible

Executive officers of a body corporate can now be personally liable for the above civil contraventions or criminal offences.  Executive officers include directors, CEO's, CFOs and company secretaries. The officer will be liable if the business or employer contravenes a provision of the Act and:

  • The officer knew that, or was reckless or negligent as to whether, the work related contravention or offence would occur; and
  • The officer was in a position to influence the conduct of the body in relation to this work-related contravention or offence; and
  • The officer failed to take all reasonable steps to prevent the contravention of offence.

In the above context reasonable steps refers to what action the officer took to ensure the business, its agents, contractors and its employees had a reasonable knowledge and understanding of the requirements of the Act and what action they took when they became aware that the business was engaging in the contravention or offence. This means an executive officer does not require visa checks of non citizen workers may have breached the Act through being reckless as to whether an offence or contravention would occur.
Recruiters must also be careful in light of the Amendment. The Act now provides that a person who refers an unlawful non citizen or a lawful non citizen with working conditions for work which they cannot legally undertake without taking "reasonable steps", such as using an online system to check visa status, may have committed a criminal offence or a civil contravention. 
If a recruiter or an executive officer has committed an offence or a contravention they can be personally liable for the penalties or criminal sanctions mentioned above. 

Increased Power for the Department of Immigration and Citizenship

The Amendments enhance the investigative and coercive powers of the Department of Immigration and Citizenships and its officers. Search warrants and the ability to enter premises following consent have increased officer's ability to investigate and they may require persons including employers to produce documents.

What precautions can I take?

Businesses, managers, executive officers and recruiters need to turn their minds to the current procedures in their organisations around hiring workers and undertaking visa checks. This means improving current processes or implementing new processes surrounding workers citizenship and visa status checks prior to and if necessary during the period of work.

For further information, please contact:

Warwick Ryan, Partner  |  Phone: +61 2 9233 5544  |  Email: wpr@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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