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Migration amendment (Reform of Employer Sanctions) Act 2013

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This memo was drafted by Lipman James on 29 April 2013.
Category: Migration Sub-category: Employer Sanctions

Federal Parliament recently passed new legalisation in order to prevent employers from facilitating illegal work in Australia where an individual has no legal right to commence work or continue to work. New laws amend the Migration Act by introducing a’ civil penalty’ regime being ‘non-fault’ founded.

Impact of new laws:

Under the new ‘civil penalty’ regime you will face pecuniary penalties’ should the Commonwealth discover that an individual has been illegally working (including in breach of their work conditions) in Australia and that you:
• referred that person to work; or you
• allowed that person to work

It does not matter whether you knew or, did not know the person was illegally working in Australia! The fact that you referred, or allowed a person to work, and the person was working illegally or, in breach of their work rights means that you… are now ‘civilly liable’.

Other penalties:

Besides the new ‘non-fault’ civil regime, the new laws also include:
• ‘criminal penalties’ (including imprisonment) if you are found to have knowingly or recklessly referred or allowed to work an illegal worker, plus;
• executive officers may also be found ‘criminally’ or ‘civilly’ liable if it is demonstrated that they were reckless or negligent to the contraventions

What does ‘Allows to work’ mean?

‘Allows to work’ captures a range of work relationships that go beyond the traditional employment model including:

• contracts of service i.e. employment including on-hire employees; and
• contracts for services i.e. independent contractor arrangements

How can I avoid civil liability?

You can only avoid civil liability if you can positively evidence you took reasonable steps at reasonable times to check the person’s work rights.

Do I need to check work entitlements?

Yes, you must check the work entitlements of ALL PERSONS prior to referring them to work or allowing them to work in order to avoid civil penalties under the new laws.

• Australian citizens are required to supply proof of their Australian citizenship
• Australian permanent residents are required to supply to provide proof of their Australian permanent residency
• non-Australian citizens and non-Australian permanent residents are required to provide proof of their permission to work in Australia (including New Zealand citizens and permanent residents) NB: proof of New Zealand citizenship is not sufficient
• records of each person’s work rights must be maintained in their file
How do I check work entitlements?
The Department of Immigration offers a number of services to assist you in checking a person’s work entitlements including:
• Employer’s Obligations - www.immi.gov.au/skilled/rights-obligations-workers.htm
• Visa Entitlement Verification Online (VEVO) - www.immi.gov.au/e_visa/vevo.htm
• Other Checking Services - www.immi.gov.au/e_visa/vevo/other-checks.htm

When do the new laws apply?

The new laws will apply by 14 September 2013 or, at an earlier date set by the Government.

Lipman James is a specialist immigration strategy firm, an RCSA Business Solutions Service Provider and immigration adviser to a number of peak industry bodies including the RCSA. As a result of this specialisation, Lipman James is widely recognised as Australia’s foremost private sector authority regarding immigration policy, market analysis, research, projects, briefings and representation. The firm further offers specialist assistance to Members concerning migration casework, program management, and compliance advice. As a specialist in the ‘recruitment, consulting and on-hire industry’, Lipman James frequently provides information and training seminars, workshops and CPE/CPD education concerning immigration issues or reforms which directly impact business.

This memo has been drafted by Lipman James to assist RCSA Members with a general understanding of the subject matter. This memo does not purport to be an exhaustive statement of all best practice requirements in the area. It is provided to RCSA Members as a guide only.

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