any business sponsoring an overseas worker who fails to perform ongoing visa checks or allows workers to breach visa conditions can now be caught in real-time and potentially face fines.
A series of changes, including the introduction of Single Touch Payroll, the collection of Tax File Numbers by the DHA since December 2017, and the latest data sharing program between the ATO and the DHA, means government agencies now have unprecedented tools capable of almost automatically auditing whether any business and their sponsored workers are in breach of their legal obligations under the Migration Amendment (Reforms of Employer Sanctions) Act 2013.
For example, if payroll data for a given worker shows they are receiving a salary commensurate with working excess hours over what is permitted by their visa conditions, a breach would be immediately detected. Or if an employer submits payroll data to the ATO but has not carried out any ‘Visa Entitlement Verification Online’ (VEVO) checks to ensure workers have a legal right to work in Australia, the DHA would be flagged.
What should employers know?
The onus to ensure workers are not in breach of visa conditions fallssquarely on employers and companies.
The employer sanctions framework specifies four types of offences:
allowing an unlawful non-citizen to work
allowing a non-citizen to work in breach of a visa condition restricting work
referring an unlawful non-citizen to work
referring a non-citizen to work in breach of a visa condition restricting work
Employers can be found guilty of a criminal offence and face imprisonment and heavy fines if they commit the above offences and are found to have known or were reckless to the fact that the person employed was an unlawful non-citizen.
Moreover, employers can be found liable for a civil offence and fines of up to $18,900 (for individuals) or $94,500 (for body corporates) per worker even if they did not know that the worker was an unlawful non-citizen. Ignorance is not a defence if an employer fails to take all reasonable steps to ensure that sponsored workers comply with their visa work conditions.
What should employers do?
Employers should immediately review their recruitment policies and establish practices to regularly verify that sponsored employees are not working in breach of their visas. They should also be familiar with the ‘reasonable steps’ employers can take to avoid sanctions under the Act, including:
Checking the 'Visa Entitlement Verification Online' ('VEVO') facility at reasonable times and updating internal records. (Checks should be conducted before a non-citizen commences work, before their visa expires and when the non-citizen's circumstances change. If a non-citizen is a bridging visa holder and VEVO does not show a visa expiry date, it is good business practice to check every three months that the non-citizen still has permission to work.)
Inspecting prescribed documents (such as passports and certificates of residence) that evidence a worker’s right to work in Australia
Educating employees, agents and contractors as part of your Risk Management Policy so that they have a reasonable knowledge and understanding of the legal requirements
Contracting another party to verify that a worker has required permission to work in Australia, and to carry out ongoing monitoring of work rights and visa conditions.
Note that while businesses can seek external help to monitor sponsored employees, employers are still required to actively keep their own records, stay informed of visa condition changes, and educate staff about the relevant requirements.
Employers should seek appropriate legal advice to avoid even inadvertently breaching their obligations under current laws. The stakes are simply too high for them to do otherwise.
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