If you currently employ people who do not have the relevant visa for the right to work in Australia, you could put your business in a risky position, and may end up being investigated by the Fair Work Commission for potentially breaching immigration laws.

It is crucial for businesses to know who in the company has legal rights to work in Australia or overseas for your company.

Fair Work inspectors are in charge of verifying the immigration status of contractors and employees.

In general, only Australian and New Zealand citizens with a valid passport are allowed to work in Australia without any restriction or limitation. All other employees must have the appropriate visa to have the right to work in Australia.

Migration Act 1958 (Cth)

If those employed by you do not have the legal right to work in Australia, you could be in breach of the Migration Act. Your business could be liable for various penalties, particularly if your business does any of the following:

  • Knowingly or recklessly let someone work for you that is not legally permitted to work for you;
  • Let an employee who is sponsored breach his or her conditional work visa (earnings, entitlements, etc); or
  • Let an employee or contractor working illegally move to another business.

The provisions are strict about the penalties that apply to those in breach of migration laws and do not take into account whether or not a breach was intentional.

If you do not know how to check the status of your workers, but you suspect one of your employees to be an illegal worker, contact an employment lawyer to assist you in determining the legality of each employee’s work engagement.

What are my obligations?

Under the provisions of the Migration Act, you must take reasonable steps to check the working status of employees and contractors working in Australia. This requires that you:

  • Keep a record of every worker’s Australian or New Zealand citizenship/permanent residency;
  • Keep a record of anyone who has temporary working visas and the conditions upon which they’re valid;
  • Continue to check the work rights of those working with temporary visas every few months up until their employment contract comes to an end.

Just because a worker has a driver’s licence, a tax file number and a Medicare card does not necessarily mean they have the right to work in Australia.

When in doubt, contact an employment lawyer for legal assistance, or visit the Department of Immigration’s Visa Entitlement Verification Online (VEVO) service.

Can I become a sponsor?

In order to sponsor someone from overseas to work for your company, you must get approval under the 457 visa program, which involves the following:

  • Being compliant and cooperative with Immigration officers and Border Protection;
  • Making sure the employees receiving sponsorship only receive the market rates for their job;
  • Checking that those being sponsored fall into one of the approved occupations;
  • Funding the travel costs of the sponsored employee once they leave the country at the end of employment; and
  • Paying for any expenses that the Commonwealth pays to find and eject sponsored employees.

Conclusion

Knowing the legal working status of your employees and contractors is very important if you want to avoid breaching Australian migration law.

For assistance writing a letter of termination for a sponsored employee, or if you need assistance in requesting specific documents, or simply wish to have your employment contracts reviewed, contact LegalVision.

Please call our office on 1300 544 755. We will happily provide you with a fixed-fee quote and an obligation-free consultation.

Ursula Hogben

Next Steps

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