Employers Beware! Employer Sanctions Under the Migration Amendment (Employer Sanctions) Act 2006

New offences introduced by the Migration Amendment (Employer Sanctions) Bill 2006 could leave you with a criminal conviction and facing a fine of up to $13,200, as well as two years' imprisonment. Companies will face fines of up to $66,000 for the same offence.

From August 2007, it becomes an offence under the Migration Act 1958 (“the Act”) for a person to knowingly or recklessly allow an illegal worker to work or to refer an illegal worker to work with another business. The offences will apply to all illegal workers engaged to work or referred to work after the commencement of the new regime in August. The new offences include higher sanctions for persons who exploit illegal workers by subjecting them to forced labour, sexual servitude or slavery.

Illegal workers are non-Australian citizens who are working in Australia without a visa or with a conditional visa. For example, a working holiday visa allows employment with one employer for a specified period of time, while a student visa allows the visa holder to work a set number of hours per week.

The changes to the Act have been introduced to penalise persons who allow non-citizens to work in Australia illegally. The changes aim to deter employers and labour suppliers from employing illegal workers or from referring them for work, and to encourage employers and labour suppliers to verify the work entitlements of potential employees.

The offences will apply to the following groups:

•  Employers;

•  Labour hire companies;

•  Employment agencies;

•  Taxi owners who bail or lease taxi cabs to drivers;

•  Brothel owners who rent or lease out rooms to sex workers; and

•  Businesses that operate informal labour hire referral services, such as backpacker hostels.

A person will have committed an offence if they were aware that the worker was working illegally, or were reckless in not investigating whether or not a worker was working illegally.

The Australian government has stated that employers who breach the new sanctions for the first time will receive a written warning, with subsequent breaches a cause for prosecution.

How do you protect your business from breaching the new employer sanctions?

To protect your business from breaching the new sanctions, it is important that you implement risk management strategies to minimise the possibility of employing an illegal worker.

By implementing the following basic procedure, you can minimise the risk to your business of knowingly or recklessly employing an illegal worker:

•  “Are you an Australian citizen?” needs to be a question directed at ALL new employees and should include sighting an Australian Passport, Australian Citizenship Certificate or Australian Birth Certificate. Any current employees whose contracts are renewed after 1 August 2007 will also need to have their employment status checked.

•  If the person is not an Australian citizen but holds an Australian visa, you need to confirm with the Department of Immigration and Citizenship (“the Department”) that the visa they hold allows them to work. You can obtain this information in three ways:

•  Through the Entitlement Verification Online, which is accessed through the Department's website at www.immi.gov.au/evo . The results of the verification check will be returned almost immediately.

•  Through the Work Rights Faxback Facility, which requires the employer to fax an authority signed by the employee to obtain details of the prospective employee's visa conditions.

•  By calling the Employer's Work Rights Checking Line to obtain information on visa conditions of prospective employees.

•  You have a grace period of 48 hours after employing a worker to conduct the necessary checks on their employment status. This is to allow time to process all new workers in industries where large numbers of workers are employed on site, such as the building industry.

•  If the prospective employee has a visa with conditions relating to employment, your business needs to make a record of the conditions and implement a procedure to ensure that these conditions are not breached. For example, if an employee is on a working holiday visa and can only be employed by your business for a period of three months, this needs to be recorded so that the employee is not still in your employ six months down the track because everyone overlooked the visa conditions. For other visa holders it will be necessary to track the amount of hours of work performed each week to ensure there is no breach of the visa conditions.

Employers need to be aware of the employer sanctions under the Migration Amendment (Employer Sanctions) Act and implement a risk management strategy as soon as possible, to minimise the risk of employing an illegal worker.

Email Thornton Immigration to make a time for us to evaluate your risk exposure. We can help you design a risk management strategy.