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

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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.

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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.