FOR EMPLOYERS
Understanding your obligations and avoiding penalties under Australia's employer sanctions legislation
When hiring skilled workers from overseas, employers need to proactively verify each person’s visa status and check whether they have the right to work. Two key pieces of legislation place a strong onus on employers to do so, while also cracking down on the exploitation of workers:
The Migration Amendment (Reform of Employer Sanctions) Act 2013
strengthened the employer sanctions provisions in the Migration Act 1954. It imposes civil and criminal penalties on employers who hire foreign nationals without a valid visa, or who allow foreign nationals with valid visas to work in breach of their visa conditions.
The penalty structures under both acts are severe, with the potential for significant fines and even imprisonment for serious offenses.
How are the Acts similar/different?
Legislation | Migration Amendment (Reform of Employer Sanctions) | Migration Amendment (Strengthening Employer Compliance) Act 2024 |
Compliance Focus | Obligates employers to verify work rights and prevent hiring of unlawful non-citizens or allowing workers to breach their visa conditions | Establishes new criminal offences and civil penalties to protect temporary migrant workers from exploitation; encourages migrant workers to report exploitation by removing their own liability for visa breaches |
Scope | Applies to a broad range of work relationships, including independent contractors, bailment or licensing, and leasing arrangements | Specifically targets exploitation of temporary migrant workers sponsored by employers |
Sanctionable Offences | Four key offences:
The 'refer to work' provision extends the offence to include not only all employers, but also labour hire companies, employment agencies and others (eg. migration agents, backpacker hostels that organise harvest work for backpackers).In addition, 'work' is defined as to mean 'any work, whether for reward or otherwise'. This is deliberately broad and captures paid work, voluntary work, or work done in return for any other benefit. | Unduly influencing, pressuring, or coercing a non-citizen into accepting an arrangement in relation to work:
An ’arrangement in relation to work’ can refer to a work‑related activity or a non‑work‑related activity, including but not limited to accepting unsafe housing or surrendering a passport. |
Penalties *Note: These penalties will come into effect on 1 July 2024. Current penalties under the 2013 Act are less, but still significant. | Civil penalty (court-imposed fine):
| Civil penalty (court-imposed fine):
|
The list of sponsorship obligations for employers hiring workers on sponsored visas is directly relevant to and reinforced by both Acts. Together, they create a comprehensive framework that ensures employers face rigorous scrutiny and consequences not only for the basic failure to verify work rights, but also for the active mistreatment and coercion of their migrant workforce:
- The 2013 act establishes core employer obligations and sanctions for hiring workers without proper authorisation;
- the 2024 act builds on this foundation by specifically targeting the exploitation of particularly vulnerable temporary migrant workers
Key measures employers should take to ensure compliance
1. Conduct comprehensive work rights checks
- Use the Visa Entitlement Verification Online (VEVO) system to verify each worker’s immigration status and work rights before employment.
- Inspect prescribed documents (such as passports and certificates of residence) that evidence a worker’s right to work in Australia
- Engage immigration professionals to conduct thorough work rights assessments and identify any potential compliance risk.
- Implement processes to regularly re-check work rights, especially when a worker's visa is due to expire or their circumstances change.
2. Maintain meticulous records
- Establish robust record-keeping systems to document compliance with all sponsorship obligations.
- Develop clear internal procedures for verifying work rights, monitoring visa conditions, and addressing any issues that arise.
- Provide training to HR and relevant personnel on employer obligations under migration law.
3. Ensure equivalent terms and conditions for overseas workers
- Pay market salary rates and provide the same terms and conditions as local workers to avoid any perception of exploiting migrant labour.
- Regularly review pay and entitlements to maintain parity.
4. Do not take any actions that could be perceived as coercing or pressuring migrant workers
This could include:
- Threatening to have a worker's visa cancelled or their immigration status jeopardised if they don't accept substandard pay or work hours that breach their conditions.
- Withholding wages or entitlements unless the worker agrees to work extra unpaid hours in breach of allowed hours.
- Misrepresenting to workers that certain unlawful arrangements are acceptable under visa rules when they are not.
5. Act swiftly to remediate non-compliance
This could include:
- Threatening to have a worker's visa cancelled or their immigration status jeopardised if they don't accept substandard pay or work hours that breach their conditions.
- Withholding wages or entitlements unless the worker agrees to work extra unpaid hours in breach of allowed hours.
- Misrepresenting to workers that certain unlawful arrangements are acceptable under visa rules when they are not.
How can Abacus Visa help?
Avoid costly missteps
The new Strengthening Employer Compliance Act has raised the standard of scrutiny for businesses sponsoring migrant workers. With higher penalties for breaches and the threat of being banned from hiring visa holders, getting sponsorship compliance right is more critical than ever. At Abacus Visa, we understand the complexities of maintaining full visa compliance throughout the sponsorship journey. Our premium work rights check service provides a comprehensive, professional assessment to ensure you avoid risking sanctions. We identify specific visa conditions, monitor changes, and flag any areas of risk so you can verify a candidate's ongoing work rights with confidence
Stay ahead of the evolving regulatory landscape
At Abacus Visa, our commitment is to provide comprehensive immigration support that anticipates and adapts to evolving regulations. As a client, you can focus on running your core business operations while counting on us to ensure you stay ahead of any new requirements throughout the entire sponsorship process and beyond
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Surry Hills,
Sydney NSW 2010
AUSTRALIA
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(or flexible by appointment)
Abacus Visa Pty Ltd. ACN: 147099303
Abacus Visa & Migration Services Pty Ltd. ABN: 58169966036
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