HR & Recruitment Team Training

Australian employers have an obligation to ensure that no illegal workers are working for them. This includes paid or unpaid work, if they are sourced directly or via a contractor, labour hire or referral company, and alternative arrangements that are common in the construction, taxi, hospitality and cleaning industries. Therefore, any employee claiming to be an Australian citizen, permanent resident or New Zealand citizen must provide evidence before commencing employment.

Employers are required to take reasonable steps, at reasonable times, to confirm that a non-citizen has permission to work in Australia. The checks should be conducted before a non-citizen commences work, before their visa expires and when the non-citizen’s circumstances change. If a non-citizen is a bridging visa holder, it is good business practice to check every three months that the non-citizen still has permission to work.

Right to Work

Not all visas allow people to work. Some visas have restrictions that may include not being able to work at all or only being able to work with a certain employer or for a certain number of hours.

Only Australian citizens, permanent residents and New Zealand nationals holding Special Category (subclass 444) visas have an unrestricted right to work in Australia. Temporary visas such as Student, Working Holiday Maker and Temporary work (skilled) 457 and Temporary Skill Shortage visas have limited rights to work.

Penalties for Engaging Illegal Workers

Australian employers could face infringements, imprisonment or civil penalties if they allow illegal work, even if the employer is unaware of that fact. The penalties for employing illegal workers can be severe.

The penalties can be AUD $54,000.00 fine and/or five years imprisonment for individuals and AUD $270,000.00 fine for bodies corporate.

In cases of visa fraud, these penalties may apply:

• Up to 10 years imprisonment
• Up to AUD210,000.00 fine for individuals
• Up to AUD1,050,000.00 fine for corporations

Precautions

You may do the following:

• Please check visa via Visa Entitlement Verification Online (VEVO) or evidence of Australian citizenship before commencing work and every three months thereafter.
• Register with the Australian Taxation Office (ATO), if you are employing Working Holiday Makers, as you must withhold tax at the working holiday maker tax rate before making your first payment to them. Penalties may apply if you fail to register.
• Report any suspected human trafficking, slavery or slavery-like offence to the Australian Federal Police on 131 237 or complete the online form.
• Provide the correct pay and workplace entitlements to your workers and comply with all other workplace obligations.
• Take all reasonable steps, at reasonable times, to confirm that a non-citizen has permission to work in Australia by using VEVO.
• Hire only foreign nationals who are permitted to work legally in Australia.
• Provide a safe workplace.

Please do not do the following:

• Pay below minimum rates of pay, make unlawful deductions from pay or require workers to unreasonably pay cash back.
• Pay with goods. Workers must be paid money for all time worked.
• Threaten to cancel a worker’s visa. Only the Department of Home Affairs can grant, refuse or cancel visas.
• Ask for money in exchange for a visa sponsorship.
• Confiscate a worker’s passport.

Very Important Links

• You can find Work-related Contraventions for workers.
• You can explore Employing Overseas Workers for workers.
• You can find information about Employers and Labour Hire Intermediaries for worker.
• You can check Prohibited Employer in the register.
• You can confirm visa via VEVO Check for worker.