Did you know that even if you do not sponsor non-citizen workers, your business has obligations under the Migration Act 1958 (Cth)?
The Migration Amendment (Reform of Employer Sanctions) Act 2013 (employer sanctions) commenced on 1 June 2013. While this piece of legislation has been in place for more than four years, it tends to get forgotten about or is not clearly understood.
The employer sanctions legislation introduced penalties for any person who allows a non-citizen to work, or who refers a non-citizen to work in circumstances where that non-citizen does not have appropriate work rights. These penalties start with an administrative warning and include financial and/or criminal penalties. For example, an infringement notice for an individual is currently $3,780 and for a body corporate $18,900 per breach.
A non-citizen is any person who is not an Australian citizen. The effect of the employer sanctions legislation is that every employer must take reasonable steps to ensure that every person working for them has appropriate work rights. It also means recruitment and labour hire companies must ensure that any person they put forward to work has appropriate work rights. Also, you must understand any limitations to those work rights.
Australia has a diverse visa system and it is important to understand that not every non-citizen will have the same work rights. For example:
- New Zealand citizens have full work rights
- Working Holiday Visa holders can only work for an employer for six months
- Student visa holders can only work for 40 hours per fortnight while their course is in session, and unlimited hours during school holidays
- Subclass 457 sponsored workers can only work for their sponsoring employer, however the family members have unrestricted work rights.
As you can see, work rights can get quite complex.
How do you ensure you comply with the employer sanctions legislation?
- Ask for evidence of a person’s right to work in Australia and keep records for every employee:
- Australia – keep a copy of their passport, or birth certificate and photo identification on file
- New Zealand citizens – keep a copy of their passport, or birth certificate and photo identification on file
- All other non-citizens – keep a copy of their passport on file and undertake a Visa Entitlement Verification Online (VEVO) search
- Educate your staff. It is not enough that your human resource department know which employee has a work limitation - supervisors and other line managers must also be aware. This is especially important in situations where overtime may be offered to employees.
- Request recruitment and on-hire labour companies provide evidence of a non-citizens right to work when putting them forward to your business.
Your only defence to the employer sanctions legislation is to demonstrate that you took reasonable steps to ensure a non-citizen has a right to work in Australia, and where there is a work limitation, that you have monitored and complied with it. The easiest way to comply, and remain compliant, is to undertake the correct work rights check and keep records.
There may be situations where you are unable to undertake a work rights check. If you find yourself in this situation, don’t panic, we can help.
Author: Rebecca Macmillan
Rachel Drew, Partner
T: +61 7 3135 0617
Rebecca Macmillan, Registered Migration Agent
T: +61 431 473 611
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