Frequently Asked Questions
Below are a number of Frequently Asked Questions regarding Employer Obligations. Recruitment scenarios are also available.
See: Recruitment Scenarios
| No | Question | Answer |
|---|---|---|
| 1 | Do I have to check the work entitlements of existing employees engaged prior to 19 August 2007? |
No. The offences only apply to employers and labour supplier who engaged or refered illegal workers on or after 19 August 2007. You do not have to check the work entitlements of existing workers unless their contracts were renewed or extended on or after 19 August 2007. Nonetheless, to avoid the disruption and loss of productivity that can occur when an illegal worker is removed from the work place, you may decide it makes good business sense to check the work entitlements of all existing workers. |
| 2 | Do the offences apply to persons who hire illegal workers as independent contractors? |
Yes. The definition of 'allows to work' in section 245AG(2) means that the
offences can apply to:
|
| 3 | Would the offences apply to charitable organisations that allow unpaid volunteers to perform volunteer activities? | No. It would be highly unlikely that any of the relationships in the definition of 'allows to work' in section 245AG(2) would exist where a recognised charitable organisation allows an unpaid volunteer to perform activities such as door-knocking, work in homeless shelters or assisting with children's sport. |
| 4 | What does it mean to 'knowingly' employ an illegal worker? | The term 'knowingly' applies where an employer is aware of the fact the person is an illegal worker. |
| 5 | What does it mean to 'recklessly' employ an illegal worker? |
An employer would be reckless if they were aware there is a possibility of the person being an illegal worker and failed to conduct a check of that person's work entitlements. 'How the department can help you avoid penalties' and 'Possibility of a prospective employee being an illegal worker' provide practical guidance on the situations when you should check the work entitlements of a worker to ensure you do not commit the offences of recklessly employing or referring an illegal worker. |
| 6 | What types of businesses could commit the offences of 'referring' an illegal worker for work? |
The referral offences in sections 245AD and 245AE apply to persons who operate a service of referring one person to another for work, regardless of whether a fee is charged for the referral. This includes formal labour referral businesses such as members of the Job Network and labour hire companies. The referral offences can also apply to people who operate informal labour referral services such as backpacker hostels that organise harvest work for backpackers or migration agents who occasionally refer clients for work. A family member who refers a relative for work would not commit the referral offences unless they did so in the course of operating a referral service. |
| 7 | Would the offences apply to householders who engage tradesmen who turn out to be illegal workers? |
No. Persons who engage independent contractors such as plumbers or electricians in a domestic context are exempted from the offences in recognition of the short term basis of these work relationships and the reduced capacity of householders to check work entitlements. However, the offences can apply to householders who employ full time staff such as live in nannies or cooks where the householder knows of or is reckless to the illegal status of the worker. |
| 8 | Would the offences apply to an employer of a 457 visa holder who allows the visa holder to work in a low or semi skilled position? | Yes. Where an employer moves a 457 visa holder into a low-skilled or semi-skilled position that causes a breach of condition 8107, the offence in section 245AC of allowing a non-citizen to work in breach of their visa conditions may be committed. This also applies where the employer of a 457 visa holder allows a person to work in a location not specified under their sponsorship agreement. |
| 9 | How do I check an Australian citizen's work entitlements? | You need to sight any of the following documentation:
See: Recruitment Scenarios |
| 10 | How do I check an Australian citizen's work entitlements using an Australian birth certificate issued after 20 August 1986? | People born after 20 August 1986 do not automatically qualify for Australian citizenship. A full birth certificate, in all states and territories, will display the birth place of both parents. Where one parent was also born in Australia, this can be used to confirm the job applicant's entitlement to work. Where neither parent was born in Australia, the job applicant should be referred to the nearest office of the Department of Immigration and Citizenship to obtain the necessary evidence. |
| 11 | Can an employer receive an Illegal Worker Warning Notice where no direct employment relationship exists? | Yes. Where it is deemed that an employer is receiving a continuing benefit from the work being undertaken by an illegal worker an Illegal Worker Warning Notice may be issued to educate the employer about the risk of employing illegal workers. However the employer would not usually be considered for prosecution in this instance. |
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