Employing Foreign Workers: Are You at Risk?

Given Australia’s shortage of skilled trades and numerous other occupations, employing foreign workers may be attractive to employers.

However, before embarking on such an exercise, employers ought to give serious consideration to their legal obligations.

Who Is Legally Allowed to Work in Australia? 

Before employing a foreign worker, an employer must ensure the potential employee is entitled to lawfully work in Australia.

It is a common misconception that any individual granted an Australian visa has the right to work.

Many visas have work restrictions, for example:

• A student visa holder can only work for 40 hours per fortnight;
• A visitor visa holder cannot work; and
• A working holiday visa holder can only work for generally up to six months with each employer.

Reasonable Steps to Confirm a Non-Citizen Is Allowed to Work

The Department of Home Affairs expects employers to take reasonable steps at reasonable times to confirm that a foreign worker is lawfully entitled to work in Australia.

It is an employer’s responsibility to ensure that it employs workers that hold visas that allow lawful employment in Australia.

This responsibility does not shift even if the workers are sourced through recruitment agencies.

Visa Entitlement Verification Online (VEVO)

VEVO is a free online government service that allows employers to check if their employees (or potential employees) have work restrictions on their visas.

An employer only needs the employee’s passport details to complete the search. A prudent employer will also obtain the employee’s consent before performing the search.

Completing a VEVO search will provide evidence that an employer has taken reasonable steps to verify an employee’s right to work.

This search should be undertaken before a foreign worker commences work, and a copy of the VEVO search should be retained.

A VEVO search will disclose the type of visa held, the date it was granted, the date it expires, and visa conditions.

Examples of visa conditions include:

• The holder must not engage in work in Australia;
• The holder must continue to be employed by their sponsoring employer;
• The holder must not engage in work before they commence their studies;
• The holder must only work in a regional area of Australia.

Continuing Obligation

Employers have an ongoing obligation to take reasonable steps to confirm their employees are still allowed to work.

It will not be enough that an employer conducted a VEVO search before hiring a prospective employee.

The employer should monitor employees’ work restrictions for the duration of employment.

For example, an employee may have changed visas during the course of employment and not notified the employer.

The new visa may have a work restriction that the employer is not made aware of.

The employer may be in breach of the Migration Act if it did not take reasonable steps at reasonable times to confirm the employee’s work restrictions.

Penalties 

An employer that fails to meet its obligations may (very likely) be fined unless the employer can provide evidence that it has taken reasonable steps at reasonable times to determine if the worker was allowed to work.

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Related Blog – Flexible Working Arrangements (Home vs Office)