If your employees do not have the relevant visa for the right to work in Australia, you could be putting your business at risk. You could be investigated by the Fair Work Commission and the Australian Border Force for potentially breaching employment and immigration laws. This article will explain your obligations as an employer and how to ensure your workers can legally work in Australia.

The Migration Act

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

If your employees do not have a legal right to work in Australia, you could be in breach of the Migration Act. As a result, your business could be liable for various penalties if your business:

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

The provisions are strict about the penalties that apply and do not take into account whether or not a breach was intentional.

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 or 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 until their employment contract ends.

However, just because a worker has a driver’s licence and a Medicare card does not mean they have the right to work in Australia.

If in doubt, you can visit the Department of Immigration’s Visa Entitlement Verification Online (VEVO) service.

Can I Become a Sponsor?

To sponsor someone from overseas, you must get approval under the employer sponsored visa program. This involves:

  • 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 the employees you are sponsoring 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
  • covering any expenses that the Commonwealth pays to find and eject sponsored employees.

Key Takeaways

Overall, knowing the legal working status of your employees and contractors is very important if you want to avoid breaching Australian migration law. Therefore, there are several considerations to keep in mind, including:

  • ensuring your business does not breach the Migration Act;
  • keeping a record of your employee’s passport and working visa; and
  • gaining approval before sponsoring an employee.

If you require any assistance determining whether your employees have the right to work in Australia or have any other questions, you can contact LegalVision’s immigration lawyers on 1300 544 755 or fill out the form on this page.

Ursula Hogben
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