CASE STUDY
Regular work rights checks: a must for employers
Our client hired an employee based on an initial check on their visa status using the Department’s Visa Entitlement Verification Online system (VEVO). But within weeks, the employee received a new visa that came with work restrictions, causing our client to inadvertently employ someone in breach of their visa conditions.
The Law
- Under the Employer Sanctions Act, all employers must thoroughly check that a potential employee holds a valid visa which permits the holder to work (if they are not an Australian citizen).
- Some visas allow work but have restrictions on the type of work and the number of hours permitted.
- To comply with the Employer Sanctions Act, employers must take ‘reasonable steps’ at ‘reasonable times’ to check a potential employee’s visa status. Undertaking a check before employment is not enough.
- Penalties for employing workers in breach of their visa conditions can be significant. Strict liability applies, meaning that employers may face fines or imprisonment if they knowingly or recklessly employ someone illegally.
It’s not just employers that have obligations under the Employer Sanctions Act:
- Recruitment and Labour Hire companies need to check every candidate before referral to an employer.
- Company directors and officers can be personally liable if they don’t implement adequate systems and processes to check work rights.
Challenge
- Visa conditions can be complex, especially when there are bridging visas involved.
- In one case, our client carried out an initial check on a potential employee’s visa status using VEVO. It confirmed the employee held a Bridging Visa A (BVA), which has no work restrictions. Based on the check, the client employed the person on a full-time basis.
- However, another VEVO check made six weeks later showed the employee had subsequently been granted a student visa. A student visa holder is not permitted to work until their course has started. This meant the employer had employed the person in breach of their visa condition.
- At this point, our client contacted us to investigate.
Solution
- Only after we were engaged to undertake an audit did the full details of this problem become apparent. We discovered that the BVA was granted on the basis of the person having lodged a student visa application.
- This was a difficult situation for our client, as their HR staff had done their due diligence by checking VEVO. However, it turned out a simple check before employment was not enough in this case. Additional checks should have been carried out, which would have shown the potential employee had lodged a student visa application, and that their work conditions were subject to change.
- The employer realised the complexity of the situation when we sent our audit report, which explained where and what had been missed.
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