Only Australian citizens and permanent residents and certain New Zealand citizens have unrestricted rights to employment. All other persons in Australia need to have visas which enable them to be in Australia lawfully and to work lawfully.
Not all visa holders in Australia have the right to work. Some visas have no work rights, such as Visitor visa holders. Others have work rights subject to a limitation, such as working holiday visas.
Businesses recruiting new employees are obliged to check whether the employee has work rights and if so, whether the right to work is unrestricted. If it is subject to any restrictions, these restrictions must be complied with. Failure to do so can leave the employer (and others) subject to civil and/or criminal sanctions.
The Migration Amendment (Employer Sanctions) Act 2013 contains a number of provisions prohibiting employers from allowing ‘unlawful non-citizens’ (foreign citizens who do not hold a valid visa to be in Australia) and, ‘lawful non-citizens’ (foreign citizens who hold a valid visa to be in Australia) to work in Australia either without permission, or in breach of work related conditions on their visa.
The Migration Amendment (Employer Sanctions) Act 2013 amended the Migration Act 1958 to include strict liability offences for:
- Allowing an unlawful non-citizen to work;
- Allowing a lawful non-citizen to work in breach of a work related condition;
- Referring an unlawful non-citizen to work; and
- Referring a lawful non-citizen to work in breach of a work related condition.
It imposes strict liability provisions whereby an employer can be penalised under the Employer Sanctions Act unless the employer can provide evidence that it took reasonable steps at reasonable times to verify the person’s visa status and/or work rights.
This includes by checking whether the noncitizen/permanent resident person is lawfully in Australia, and if they are, whether the person has the right to work and if so, on what basis.
The Migration Amendment (Employer Sanctions) Act 2013 imposes an obligation on employers to verify a non-citizen’s lawful status and work rights by using the Department’s Verification of Visa Status/Work Rights through its Visa Entitlement Verification Online (VEVO) Entitlement Check.
The penalties and sanctions that may be imposed on employers who breach the Migration Amendment (Employer Sanctions) Act 2013 include one or a combination of the following:
- Infringement notices;
- Civil penalty orders; and
- Criminal proceedings.
How to Check Work Rights?
We recommend that all employers check the status and work rights of all prospective employees even in instances where it seems that the employee is an Australian citizen or permanent resident.
This can be done by obtaining the following documents to confirm work rights:
Australian Citizens: Australian birth certificate with photographic ID, Australian citizenship certificate and photo ID or an Australian passport;
Australian Permanent Residents: permanent visa label; or certificate or evidence of residence status;
New Zealand Citizens: valid New Zealand passport;
Non-Citizens: valid current visa with work rights.
A non-citizen in Australia may have no work rights, limited work rights or unrestricted work rights depending on their visa and the conditions attached to the visa (if any).
Employers should check with the Department of Home Affairs’ VEVO system as to the person’s status and work rights.
Human resource policies, practices and procedures should incorporate the checking of work rights as part of the recruitment process.
The Department undertakes a range of measures to ensure compliance including undertaking employer awareness sessions, random audits of businesses, issuing warning notices, cancelling the visa of a lawful non-citizen working unlawfully, detaining an unlawful non-citizen, and responding to adverse allegations including with the use of search warrants issued under the Migration Amendment (Employer Sanctions) Act 2013.
As the Migration Amendment (Employer Sanctions) Act 2013 imposes a range of obligations on employers, including strict liability civil and criminal penalties in the event of a breach, businesses must adopt practices which focus on compliance to avoid breach.
Nevett Ford Lawyers Melbourne; members of the CMPA since 2003, can provide advice and assistance on all aspects of the Migration Amendment (Employer Sanctions) Act 2013 including the checking of work rights, as well as advice and assistance in relation to all employer sponsored visa applications.