Do You Check Your Employees' Visa Status?

Employers will need to be more vigilant about checking the visa status of their workers, with new legislation making it much easier for the government to prosecute non-compliant companies.

The House of Representatives passed the bill in November last year and it is expected to take effect, following debate in the Senate, this month.

Under the new Act, employers accused of breaches bear the burden of proving that they have taken "reasonable steps" to check the visa conditions of people found to be working illegally. Recruitment consultants are also covered by the legislation, and can be found liable for referring for employment people who are not allowed to work. 

Contracting arrangements are specifically covered by the amendments, to make it easier for the Department to prosecute breaches. Both principals and contracting companies will be deemed responsible for checking visas.

Employers will need to verify the employee's work rights before they start work and monitor expiry dates.

In terms of good practice, regular checks should be done as some people move on to different visas after their initial ones expire. The timing of "regular" checks will depend on the visa eg bridging visas require checks "every month or so" because they expire within 28 days of a decision; while student visas also have a higher likelihood of being cancelled or for the student to move onto another visa. 

A range of penalties will apply under the new law and these will include

  • a first offence warning;
  • corporate fines of up to $9,900;
  • individual fines of up to $1,980

Where recklessness or knowledge of the breach is found, fines can rise to $66,000 and $13,200 respectively (and up to two years' imprisonment), while aggravated offences attract fines of up to $165,000 and $33,000, and up to five years' imprisonment.

Executive officers who knew (or "should have known") or were negligent about a breach can also be found individually liable for an offence.

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