About the Employer Sanctions Legislation
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Employing an illegal worker is a criminal offence
It is a criminal offence under the Migration Act 1958 for a person to knowingly or recklessly:
- allow an illegal worker to work
- refer an illegal worker for work with another business.
Individuals who are convicted of these offences face fines of up to $13 200 and two years imprisonment while companies face fines of up to $66 000 per illegal worker. The penalties are higher where an illegal worker is being exploited through slavery, forced labour or sexual servitude.
These offences only apply to employers and labour suppliers who engage or refer illegal workers on or after 19 August 2007. You do not have to check the work entitlements of existing workers unless their contracts are renewed or extended on or after 19 August 2007.
See also: Understanding Your Obligations
Who are illegal workers?
Illegal workers are non-Australian citizens who are working in Australia without a visa or who are in Australia lawfully but working in breach of their visa conditions. Work means any work including unpaid work.
Who is affected by these new offences?
The offences apply to employers, labour hire companies, employment agencies and anyone who allows illegal workers to work or refers illegal workers for work. This includes taxi owners who bail or lease their taxi cabs to drivers and some people who rent or lease rooms to sex workers.
The offences also apply to businesses that operate informal labour referral services such as backpacker hostels that organise harvest work for backpackers.
Only businesses in a direct legal relationship with an illegal worker, for example by being a party to an employment contract or independent contractor arrangement, can commit the offence of allowing an illegal worker to work.
This means that a head contractor at a building site would not commit the offence of allowing an illegal worker to work if a subcontractor engages or employs an illegal worker. In this situation the subcontractor would be liable because the subcontractor would be in the contractual relationship with the illegal worker.
Similarly, if a worker is sourced through a labour hire company that remains the legal employer of the worker, the business using the services of the worker will not be liable unless it also has a legal relationship with that worker. In this situation the labour hire company could commit an offence.
Information about understanding your obligations is available.
See: Understanding Your Obligations
Higher penalties where an illegal worker is being exploited
Where an illegal worker is being exploited through slavery, forced labour or sexual servitude, the maximum penalties are five years imprisonment and fines up to $33 000 for individuals and $165 000 for companies per illegal worker.
The terms slavery, forced labour and sexual servitude are defined in the Criminal Code Act 1995.
Forced labour means the condition of a person who provides labour or services (other than sexual services) and who, because of the use of force or threats:
- is not free to cease providing labour or services
or - is not free to leave the place or area where the person provides labour or services.
Sexual servitude is the condition of a person who provides sexual services and who, because of the use of force or threats:
- is not free to cease providing sexual services
or - is not free to leave the place or area where the person provides sexual services.
Slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.
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