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Australia – Tougher Sanctions For Failing To Check A Worker’s Right To Work.

2 June, 2013

 

Legal News & Analysis – Asia Pacific – Australia – Labour & Employment

 

WHAT YOU NEED TO KNOW


The Migration Amendment (Reform of Employer Sanctions) Act 2013 (Cth) (the "Amendment Act") amends the Migration Act 1958 (Cth) (the "Migration Act"), to impose more stringent obligations on employers to be vigilant in checking that their employees and other workers have a legal right to work in Australia. The amendments, amongst other things:

 

  • create new non-fault civil penalty provisions for persons who allow or refer an unlawful non-citizen to work, or allow or refer a lawful non-citizen to work in breach of a visa condition;
  • in some circumstances, extend criminal and civil liability to company officers;
  • create a statutory defence against liability where "reasonable steps" are taken to verify a person's entitlement to work; and
  • create new investigative powers for use where there has been suspected breaches of work-related contraventions and offences.


The amendments commence on 1 June 2013.


WHAT YOU NEED TO DO

 

  • The broadening of the work related offences and contraventions, particularly the introduction of non-fault penalty provisions, makes it more important than ever to ensure appropriate procedures are in place to verify your workers' work status and permission to work.
  • Employers should, prior to this legislation coming into force, review their recruitment screening and checking procedures when recruiting employees and engaging other workers to ensure they are sufficient to verify working entitlements.
  • The key under the Amendment Act is to ensure that "reasonable steps" are taken. For example, employers may implement policies during recruitment for sighting visa documentation or passports for all prospective employees and to use the VEVO website. Employers should also be satisfied that the labour hire, recruitment agencies and contractors that they deal with have appropriate procedures in place.


Introduction and background to the reforms


On 14 March 2013, the Amendment Act received the Royal Assent. The substantive provisions of the Amendment Act will commence on 1 June 2013.


The Amendment Act amends the Migration Act to give effect to the Federal Government's response to the Report of the 2010 Review of the Migration Amendment (Employer Sanctions) Act 2007. The Review considered the current employer sanctions framework as "wholly ineffective" in deterring employers from both allowing and referring noncitizens to work without the required  documentation.


Key reforms – what's new?


New offence and civil penalty provisions


The Amendment Act creates new non-fault civil penalty provisions and amends current criminal offences where a person:

 

  • allows, or continues to allow, an unlawful non-citizen to work;
  • refers an unlawful non-citizen to a third party to work;
  • allows, or continues to allow, a lawful non-citizen to work in breach of a visa condition which prohibits or restricts their ability to work; or
  • refers a lawful non-citizen to a third party to work in circumstances where they would be in breach of a visa condition by performing the work for which they were referred 

 

(together, the "Work Related Offences and Contraventions").


The new "non-fault" civil penalty provisions are a significant change to the current provisions of the Migration Act. Further, a person can be liable under the civil penalty provisions without knowing about a person's work entitlement status. 

 

For a breach of the civil penalty provisions, individuals face a fine of up to $15,300, while companies may be fined up to $76,500.


There is also an alternative infringement notice scheme with lesser penalties.


If a contravention occurs with a person's knowledge or because of their recklessness, then the person can be charged with a criminal offence, the maximum penalty being 2 years imprisonment.


Am I "allowing" a person to work?


The Work Related Offences and Contraventions are not limited to an employer's employees but apply to all workers.


The Amendment Act expands the definition of "allows to work" in relation to the Work Related Offences and Contraventions. Liability may now extend beyond the direct employer. Under the Amendment Act, a person who participates in an "arrangement" or a "series of arrangements" for the performance of work by the worker (even though that worker is not working for that person), can be caught.


Company officers: you may now be liable 

 

An executive officer of a company may also be personally liable for the Work Related Offences and Contraventions, if:

 

  • the employer entity commits an offence or contravention;
  • the officer knew, or was reckless or negligent as to whether the offence or contravention would occur; 
  • the officer was in a position to influence the conduct of the employer entity in relation to the offence or contravention; and
  • the officer failed to take all reasonable steps to prevent the offence or contravention.


A criminal sanction can also apply in circumstances where the executive officer has been negligent or reckless within the meaning of the Migration Act. 

 

An executive officer of a company includes a director, chief executive officer, chief financial officer and the company secretary.


Statutory defence


The Amendment Act creates a specific defence available to employers and officers against Work Related Offences and Contraventions. The defence is available where a person takes "reasonable steps" to verify that a person is either:

 

  • not an unlawful non-citizen; or
  • will not be in breach of a work-related condition by working in the relevant employment. 


In considering what steps are reasonable, a court is to have regard to:

 

  • what action, if any, the person took towards ensuring the company, its employees and agents had a reasonable knowledge and understanding of the requirements of the Act; and
  • what action the person took, if any, when they became aware an offence was committed.


New investigative powers


The Amendment Act creates new investigative powers for the Department of Immigration and Citizenship, which can be used to facilitate investigations of suspected breaches of the Work Related Offences and Contraventions. These powers will allow:

 

  • the Secretary to issue a "notice to produce" documents and information; and
  • authorised officers to enter and search premises, ask questions, and require the production of documents (amongst other things).

 

 

For further information, please contact:

 
Vince Rogers, Partner, Ashurst

vince.rogers@ashurst.com

 

Shae FrancisAshurst
shae.francis@ashurst.com
 
Jason Raftos, Ashurst
jason.raftos@ashurst.com
 

 

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