No. The offences only apply to employers and labour supplier 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.

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.

Yes. The definition of ‘allows to work’ in section 245AG(2) means that the offences can apply to:

• employers
• persons who engage independent contractors
• taxi owners who lease their cabs to drivers
  and
• brothel owners who rent or lease rooms to sex workers.

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 charitable organisation allows an unpaid volunteer to perform activities such as door-knocking, work in homeless shelters or assisting with children’s sport.

The term ‘reckless’ refers to the level of knowledge that an employer has about the legal status of a worker. An employer would be reckless if he or she was aware of a ‘substantial risk’ that an employee was an illegal worker and, having regard to the circumstances known by the employer, it was unjustifiable for the employer to have taken the risk.

‘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.
See:
Understanding Your Obligations > How the department can help you avoid penalties
Understanding Your Obligations > Possibility of a prospective employee being an illegal worker

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.

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 or is reckless to the illegal status of the worker.

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.