According to official estimates there could be more than 62,000 visa over-stayers in Australia, many of them are working unlawfully.
In addition there are plenty of lawful visa holders with limited work rights working in breach of their visa conditions (e.g. they could be SC 462 visa holders, working holiday makers or students).
All Australian employers are required to ensure they are not using illegal workers. Under the Migration Act 1958, serious penalties exist for any employer that knowingly or unknowingly hired workers without appropriate work permission.
The liability extends to executive officers of businesses who employ illegal workers.
The range of possible penalties includes the following:
- Warning which generally will be issued on the first offence.
- Infringement Notice requiring the payment of a fine. The fine will stand unless the business can provide evidence in defence. Maximum penalty for corporate bodies are up to $18,900 – for an individual employers – $3,780.
- Civil proceedings for offences could result in a much higher fine of $94,500 for corporate bodies and up to $18,900 for individuals.
These penalties apply for each offence so, if a number of workers are detected working illegally, the cumulative fines could be very significant indeed.
Knowledge of illegal employment or recklessness in this matter could lead to Criminal Court proceedings with the penalties up to $315,000 for corporate bodiesor$63,000 for individuals and /or up to 5 years’ imprisonment.
In order to avoid the substantial penalties mentioned above, employers are required to take reasonable steps to ensure they are not using illegal workers. If an employer can provide evidence that reasonable steps were taken to verify that a foreign worker could legally work in Australia, a civil penalty could be avoided.
Viewing a printed visa label provided by potential employees or accepting their correspondence with the Department is not considered as sufficient evidence of work rights. The employers should use the Visa Entitlement Verification Online (VEVO) service, managed by the Department of Home Affairs, to check the visa status of migrant workers, including details of their visa conditions.
It is also deemed not enough to undertaking a check on an employee’s visa status only before employment. A visa status of temporary visa holder can change after commencement of employment consequently putting the employer at risk. For example, a working holiday maker may be able to work full time for six months, but can only work for 40 hours per fortnight if they move onto a student visa. Therefore checks should be made approximately every 3 months throughout the employment period to provide evidence of reasonable care on the part of the employer.
For questions about Australian visas and Immigration matters please contact a Registered Migration Agent