Many employers and labour hire companies assume their workers are Australian citizens or residents or at least have rights to work in Australia.
This assumption may lead to significant penalties when the Migration Amendment (Employers Sanctions) Act 2006 (Cth) (MAES Act) comes into effect in August 2007. The new law will require employers and labour hire companies to check carefully before hiring new workers and ensure they are legally entitled to work in Australia.
Background
The Migration Act 1958 (Cth) (Migration Act) controls the arrival and presence of non-citizens in Australia. Under the Migration Act, non-citizens who work illegally and who are in breach of the work conditions of their visa commit an offence. The penalty is a fine of up to $10,000.
The Department of Immigration and Multicultural Affairs (DIMA) estimated in December 2005 that there were over 46,000 non-citizens who had overstayed their visa limits and of these it was estimated over 26,000 had been in Australia unlawfully for more than 5 years.
New law
The MAES Act makes it an offence from August 2007 to:
1. allow an unlawful non-citizen to work
2. allow a non-citizen to work in breach of a visa condition
3. refer an unlawful citizen for work, and
4. refer a non-citizen for work in breach of a visa condition.
The definition of "work” under the MAES Act is broad and includes work for reward or otherwise, volunteer work and work done in return for accommodation, food or any other benefit.
The MAES Act also exhaustively defines the circumstances in which a person "allows” another person to "work”. The definition goes beyond the traditional employer-employee relationship and encompasses alternative work arrangements such as:
1. independent contractors
2. taxi bailment or licence of taxis for agreed periods or on agreed terms and conditions, and
3. leasing arrangements (e.g. for sex workers).
It is an "aggravated offence” under the MAES Act if someone exploits an illegal worker.
If a person knows or is reckless about the fact that a worker is working illegally (or exploits the worker) then they may be liable to a penalty or penalties under the MAES Act. It is intended that a person would be reckless as to an offence under the MAES Act if he/she was aware of the possibility that a worker could be an unlawful citizen.
The possibility of a worker being an unlawful non-citizen exists in all industries, however, DIMA has located a relatively high proportion of illegal workers in industries such as construction, taxi hire, hospitality, cleaning, horticulture and sex.
Penalties
Individuals who are convicted of offences under the MAES Act face fines of up to $13,200 and/or 2 years imprisonment while companies face fines of up to $66,000 per illegal worker.
If an illegal worker is also being exploited through slavery, forced labour or sexual servitude, the maximum penalties are 5 years imprisonment and fines up to $33,000 for individuals and $165,000 for companies per illegal worker.
Work permits
Employees who are not Australian or permanent residents must obtain valid visas with work rights. There are around 135 visa categories, which require specific criteria to be met. Generally, the Temporary Business (Long Stay) (subclass 457) visa allows long-term stay with work rights (generally no more than 4 years). There are also various short-term visas that allow limited business activities to be undertaken during the period of stay.
Persons seeking work rights must meet medical and character requirements. Most business visas also have work conditions attached to them. The conditions depend on the visa category that has been granted and whether the person is the main applicant or a dependent.
What do you need to do?
Employers and labour hire companies should check that a job applicant has a legal right to work in Australia before they are offered employment.
To minimise exposure to possible claims that a person has been treated less favourably on the basis of certain characteristics in breach of discrimination laws, employers and labour hire companies should check the work rights of all job applicants to ensure that they are all treated equally.
The Federal Department of Immigration has an online facility for employers to check the credentials of migrant workers - http://www.immi.gov.au/managing-australias-borders/compliance/info-employers/evo-orgs.htm
Employers and labour hire companies should review their hiring policies and procedures in relation to hiring to ensure compliance with the new laws. Job application forms should also be reviewed and amended if necessary to ensure they request verification from the job applicant that they have the right to work in Australia.
