Do you know the legal risks when employing visa holders?

 

Did you know that it is your responsibility as the employer to remain compliant when it comes to employing overseas workers?

 

Every employer engaging people from overseas must know that there are legal risks if they don’t comply with The Fair Work Act, The Migration Act and any associated regulations. It is an employer’s responsibility to be aware of their employees’ visa status and   conditions, their sponsor’s obligations (457 visas) and actions that can be taken against an employer for breaching these.

You might for example, be employing someone who is on a student or a working holiday visa without knowing what visa conditions they have attached to their visa. Similarly you might employ someone on a 457 visa and not be aware of your sponsorship obligations and the consequences for not fulfilling them. You may be liable for breaches of conditions if you have employed or sponsored someone in the past, even if that person is no longer working for you but is still in Australia.

What you need to know is that as an employer it is your duty to be aware of the legislation attached to employing overseas staff and the legal risks involved with that.

The Fair work Act

Section 550 of the Fair Work Act (FWA) states that involvement in a contravention will be treated in the same way as an actual contravention.   An individual can be involved in a contravention if they have:

  • aided, abetted, counselled or procured the contravention; or
  • induced the contravention, whether by threats or promises or otherwise; or
  • been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
  • conspired with others to effect the contravention.

The Migration Act

 Section 245AA of the Migration Act creates civil and criminal penalties where an individual is found to have, among other things, allowed a non-citizen to work, or referred a non-citizen for work, in breach of the non-citizen’s visa conditions.

 Section 140K of the Migration Act states that if you as an employer fail to satisfy sponsorship obligations, the following sanctions will apply to you

Administrative

  • you could be barred from sponsoring more people for a specified time
  • you could be barred from applying for approval to be a sponsor, in relation to this visa or another one
  • all of your existing approvals as a sponsor could be cancelled.

Enforceable undertaking

You could be invited to enter into an enforceable undertaking.  Enforceable undertakings require you to promise, in writing, to undertake to complete certain actions to demonstrate that the failures have been rectified and won’t happen again.

Civil

  • you can be issued an infringement notice of up to ,$10,200 for a body corporate and $2,040 for an individual for each failure.
  • you can be taken to a court for a civil penalty order of up to 51,000 for a corporation and $10,200 for an individual for each failure.

Section 140 HA of the Migration Act puts a number of sponsorship obligations on you as an employer if you become a Standard Business Sponsor (SBS):

  • cooperate with inspectors
  • ensure equivalent terms and conditions of employment
  • keep records
  • provide records and information to the Minister
  • tell us when certain events occur
  • ensure  the visa holder  participates in the nominated occupation, program or activity
  • not recover from, transfer or charge certain costs to another person
  • pay travel costs to enable sponsored people to leave Australia
  • pay costs  to remove unlawful non-citizens
  • provide training to Australians and permanent residents
  • not engage in discriminatory recruitment practices.

 

To reduce the overall risks, it is important for every employer to remain actively aware of obligations stemming from the Fair Work Act, Migration Act and other associated regulations. Organisations must stress test or audit existing systems, and ensure that special measures are in place for all foreign employees.

At UMBA Australia we offer an audit process, conducted within your business, with confidentiality and discretion guaranteed. We will assist you to ensure that you are compliant.  We also offer advice and strategies on how to best keep records on your 457 visa employees, with a view to putting in place best practice and safeguards to protect you against possible future non – compliance.