Do Your Employees Have The Right To Work In Australia?

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Posted by Regie Anne Gardoce on 25 June 2019

Whether you are engaging with new employees or contractors, you have a positive obligation to make sure your worker has the right to work in Australia. 

The Fair Work Commission keeps an eye out for employers who don’t comply with this obligation (and the Australian Border Force too!).

And, under the Migration Act, employers could be fined up to $255, 000. 

This article will talk about your obligations, what could happen if you don’t comply and what you could do to avoid the headache of penalties.

 

What To Know

It is your responsibility as an employer to check whether your workers can legally work in Australia.

This includes employees, contractors and any other workers you source from labour hire arrangement or recruitment agencies.

And it applies to both paid and unpaid work.

But how do you know someone is illegally working in Australia?

Put simply, a person does not have a right to work in Australia if they are one of two things.

First, those who are illegally staying in Australia. 

They are called “unlawful non-citizens” – foreign citizens without a valid visa in Australia.

Second, those “lawful non-citizens” who have a valid visa to stay in Australia but with work-related restrictions.

If you’re not well-versed in all the different types of visas and their working conditions – don’t fret!

Head over to the Australian Government’s Visa Entitlement Verification Online (VEVO), where you can check what working conditions are attached to each visa. 

You need the worker’s permission to access their VEVO details, so make sure you get this permission as part of your on-boarding process!

 

What Happens If You Don’t Comply?

As an employer, you could face penalties if you employ a person who does not have a valid right to work in Australia.

You can be fined up to $102,000 (and, for more “aggravated” breaches such as forced or exploitative labour, this number can go up to $255,000).

In 2013, the law was changed to introduce stricter provisions.

Employers could still face penalties even if they unknowingly employed a person without valid working rights.

This new law places a positive obligation on every employer to actively make sure that their employees have valid working rights. 

Employers who fail to comply with this obligation could be liable for fines up to $76,500. 

It’s also worthy to note that even executive officers could be held personally liable if they:

  1. were aware of the breach,
  2. influenced the employer in the breach, or
  3. failed to take reasonable steps to prevent the breach.

 

What To Do

The last thing you want is the headache of an investigation and heavy fines facing your business.

Under the Migration Act, employers must take “reasonable steps” to check the working status of their employees and contractors.

This includes keeping records of your employees’ working status and making the necessary enquiries. 

Don’t turn a blind eye if you suspect a worker doesn’t have the requisite visa status! 

Particularly, if you are employing someone who has a temporary working visa, you are obliged to continue to check their work rights until their employment contract ends.

So – how do employees prove that they have valid working rights in Australia?

To prove they have a right to work in Australia, your employees can provide the following documents:

  • Australian birth certificate and a photo ID
  • Australian citizenship certificate
  • Australian passport
  • New Zealand passport
  • New Zealand Birth Certificate and a photo ID
  • Certificate of evidence of resident status
  • Valid visa with relevant work rights

To avoid penalties, it’s a good idea to make sure you are proactive about checking your employees’ work rights from the very beginning.

For example, you can:

  • Post job advertisements specifying that they must have valid working rights in Australia before applying
  • Introduce employee screening processes with compulsory reviews of employees’ work rights when they start work with you
  • Review any contracts you have with third-party labour hire or recruitment companies to make sure they are also checking the rights of suggested workers

And, if you have any employees who are on temporary visas, be sure to schedule regular check-ups of their working status.

If you have further questions around employing (or sponsoring) visa-holders, the Department of Home Affairs has a handy resource here.

For any questions about other obligations you have before taking on a new employee, you can view a checklist here

 

What To Take Away…

The duty to check whether your workers have the right to work in Australia is something that can often be forgotten.

While you might be employing a person in good faith, you are required by the law to take reasonable steps to check their working status.

It’s a good idea to be proactive because “not knowing” is no longer an excuse.

Investigations are a headache, fines are heavy and the last thing you want is finding out a valuable employee is illegally working for you.

Still have questions?

We’re here to help – you can get in touch with our friendly team at 1800 630 617 or team@sprintlaw.com.au.

Need help with knowing your employer obligations?

We can help! Just get in touch and we can walk you through your options.

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Regie Anne Gardoce

Regie is a legal consultant at sprintlaw. She has experience across law and tech start-ups, while still completing her Bachelor of Laws and Bachelor of Commerce at UNSW.
Regie Anne Gardoce

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