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.
Are they 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 Australia visa has the right to work. Many visas have work restrictions, for example:
- A student visa holder can only work for 20 hours per week;
- 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 (formerly the Department of Immigration and Border Protection) 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 its employees (or potential employees) have work restrictions on their visa. An employer only needs the employee’s passport details to complete the search. A prudent employer will also obtain the employees 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. A copy of the VEVO search should be retained. This search should be undertaken prior to a foreign worker commencing work.
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 work before they commence their studies
- The holder only work in a regional area of Australia
Employers have an ongoing obligation to take reasonable steps to confirm its employees are still allowed to work. It will not be enough that an employer conducted a VEVO search prior to 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 employee’s work restrictions.
The Migration Act has been tightened on this issue and it is no longer an acceptable excuse that an employer did not know the status of its employee’s entitlement to work in Australia.
The Government has suggested that employers who are ‘first time offenders’ will receive one warning notice and may be fined up to $75,000 for each employee found to be working illegally. Employers, company directors and officers will be deemed directly liable for employing illegal workers.
In instances where an employer can provide evidence that it has taken reasonable steps at reasonable times to determine if the worker was allowed to work, there is unlikely to be any penalty imposed.
If you would like more information about how to protect yourself when employing foreign workers, speak to one of our friendly staff at Bambrick Legal today.