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New immigration laws and employer sanctions

It is the responsibility of all businesses to employ legal workers. Legal workers are Australian citizens, permanent residents and non-citizens with valid Australian visas that allow them to work.

A new law – The Migration Amendment (Reforms of Employer Sanctions) Act 2013 took effect on 1 June 2013.

According to lawyers MinterEllison, this Act makes changes to the Employer Sanctions provisions of the Migration Act 1954 (the Act). The effect of the changes is to tighten the criminal offence and civil penalty provisions of the Act that apply to Australian employers who employ overseas nationals in Australia without a visa or working in breach of their visa conditions. They also extend liability under the Act to executive officers in certain circumstances.

Since 2007 it has been a criminal offence under the Migration Act to employ or refer a person for work who is not allowed to work in Australia.

However from 1st June 2013 if you manage workers who hold a temporary residential visa (in Australia) you must adhere to the new laws regardless of whether you are an approved immigration sponor.

Employers who enter into arrangements with labour hire companies should also ensure that their contracts with such companies contain provisions requiring the labour hire company to conduct work rights checks on all non-Australian workers.

MinterEllison’s website explained “The new civil penalties regime introduced on 1 June supplements the existing criminal provisions and enables an employer whounknowingly allows or continues to allow an unlawful non-citizen or non-citizen working in breach of their visa conditions to be prosecuted under the Migration Act.”

“The civil provisions are strict liability provisions which means that employers can be prosecuted under these provisions despite having taken steps to check a worker’s immigration status or work rights. However, the amending legislation also creates a statutory defence for employers who have taken ‘reasonable steps at reasonable times‘ to verify the worker’s visa and work rights. The Migration Regulations specifies that ‘reasonable steps’ taken by employers include:

  • conducting online work rights checks via the Department of Immigration and Citizenship’s (DIAC) Visa Entitlement Verification Online (VEVO) search facility; and
  • sighting personal documents of workers including:
    • passport;
    • certificate of citizenship plus photo ID (such as a driver’s licence); or
    • certificate of evidence of residence status plus photo ID.Employers should review their internal recruitment processes and strategies to ensure that they are taking the ‘reasonable steps’ identified above to verify a prospective employee’s work rights, and continue to verify them on an ongoing basis if necessary. It is also important for employers to ensure that the work rights for all existing employees have also been verified.”

Companies breaching the criminal provisions can face fines of up to $66,000 while convicted individuals may be fined $13,200 or imprisoned for up to 2 years.

So if you are an organisation that needs to check whether your candidates or employees have the right to work in Australia, you can use go to VEVO directly http://www.immi.gov.au/e_visa/vevo.htm  or you can use WorkPro. WorkPro is the only company awarded seamless automated access to Department of Immigration’s Visa Entitlement Verification Online (VEVO). As part of WorkPro’s breadth of employment services, you will be provided with access to instant, accurate and transparent employee work rights information.

So in combination with the provision to instantly check an individual’s work rights, we provide an official verification certificate, the option to set a re-check date and an automated email reminder to re-check the visa on a particular date. Importantly, the service is auditable and reportable. For further information please contact WorkPro 1300 975 776 or visit http://workpro.com.au/visa-check





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