Recruitment Scenarios

Scenario 1

Would a horticulturalist commit an offence if a worker, obtained from a reputable labour hire company, turns out to be an illegal worker?

Answer
No.  Providing the labour hire company remains the legal employer of the illegal worker, and the horticulturalist does not have a legal relationship with the worker, the horticulturalist would not commit an offence.  In this situation the labour hire company may be liable.  However, once the horticulturalist discovers that the person is an illegal worker, he/she should end his/her working relationship with the worker immediately.

Scenario 2

Would a farmer be prosecuted if he or she engages a person to pick fruit but that evening discovers the person is an illegal worker after using the Visa Entitlement Verification Online service to check their work entitlements?

Answer
No.  Employers who initiate work entitlement checks of new employees within 48 hours of an employee commencing work would not usually be referred for prosecution.  However, once the farmer discovers that the person is an illegal worker, he must end his working relationship with the person immediately.  The farmer would also need to prove when the employee started work to get the benefit of the flexible 48-hour checking period.

Scenario 3

Would a farmer be prosecuted if he or she engages a group of workers who are referred by a local backpacker hostel which claims to have checked the work entitlements of the workers but where one turns out to be an illegal worker?

Answer
No.  The department would not usually consider prosecuting the farmer if he or she could show an invoice or some other document from the backpacker hostel which says that the hostel had checked that the workers had valid visas to work in Australia.  In this situation the backpacker hostel may commit the offence of referring an illegal worker for work.

Scenario 4

At harvest time a farmer has a field of grapes that needs to be immediately harvested to prevent spoiling.  He engages casual workers but is unaware of any restrictions on their entitlement to work.  Would the farmer have committed an offence if the farmer discovers after the harvest that one of the workers is a non-citizen who is not entitled to work

Answer
No.  Provided the farmer had not previously received an illegal worker warning notice, and the farmer had not received some specific information to suggest the worker might not have a valid visa to work in Australia, the new offences would not apply.

Scenario 5

A person approaches a subcontractor at a construction site seeking work as a site labourer. The person mentions they have overseas experience so the subcontractor asks whether they have permission to work in Australia. The person says ‘yes’ and shows the subcontractor their safety card. Would the subcontractor commit an offence if the person turns out to be an illegal worker?

Answer

The subcontractor could be found to have committed an offence in this scenario because there is a ‘possibility’ that the person is an illegal worker. The possibility arises because:

• the subcontractor operates in a high risk industry where the department locates a significant number of illegal workers
• the person mentioned overseas experience which raises the possibility they are only visiting Australia and may not have a work visa
• ‘safety cards’ are not evidence of work entitlements. They only indicate a person has completed certain Occupational Health and Safety training
  and
• taking a person at their word is not a reliable method of checking work entitlements.

However, the department would usually only consider prosecution if the subcontractor had previously been given a warning notice for employing illegal workers, or if there were other aggravating circumstances such as exploitation present.

Scenario 6

A head contractor engages a plastering subcontractor with whom the head contractor has worked on many occasions. The subcontractor brings two assistants onto the work site to help him complete the job within the specified timeframe. One of the assistants is subsequently detained by the department for overstaying his visa and as a result the subcontractor misses the deadline for completing the work. Would the head contractor commit the offence of allowing an illegal worker to work?

Answer

No, as there is no contractual relationship between the head contractor and the assistants engaged by the plastering subcontractor. In this situation the relevant work contract is between the plastering subcontractor and the assistants, and therefore the subcontractor may commit an offence if he knew or was reckless to the fact that the assistants were illegal workers.

However, the head contractor may have obligations under the National Code of Practice for the Construction Industry and the Implementation Guidelines to ensure that his subcontractors comply with the legislation.

Scenario 7

After a social meeting, a construction site manager approaches an employer regarding work opportunities in the employer’s organisation. The employer knows that the person is currently working for a large reputable firm and urgently needs a site manager so gives him a job. Would the employer commit an offence if it turns out the site manager is an illegal worker?

Answer

Without some specific information to suggest the site manager might not be entitled to work in Australia, such as overseas qualifications, it is unlikely that an offence would be committed in this scenario.

Although the employer works in a high risk industry where the department locates a significant number of illegal workers, there is no other information to suggest there is a ‘possibility’ that the site manager is an illegal worker.

However, once a warning notice has been received it would be safest for an employer to check the work entitlements of all new workers.

In this context, it should be noted that just because someone is currently employed by a reputable firm does not mean they have work entitlements. The person might have had work entitlements when they were engaged by that firm but their visa could have subsequently expired. Furthermore, just because a firm has a good reputation does not necessarily mean they have adopted the best practice of checking work entitlements as part of their recruitment procedures.

Scenario 8

The project manager at a construction site in regional Australia is approached by a number of people who have heard that the project manager is seeking general construction labourers. The site has just commenced operations and due to a recent storm there are no Internet or fax facilities at the site for at least a week. As a result the project manager does not use Visa Entitlement Verification Online or the Visa Entitlement Verification Faxback service to check work entitlements before engaging the construction labourers. Would the project manager commit an offence if it turns out that one of the construction labourers was an illegal worker?

Answer

Without some specific information to suggest the construction labourer might not be entitled to work in Australia, such as the labourer identifying themself with a foreign passport, it is unlikely that an offence would be committed in this scenario.

Although the project manager works in a high risk industry where the department locates a significant number of illegal workers, there is no other information to suggest there is a ‘possibility’ that the construction labourer was an illegal worker.

The outcome might be different if the department had previously given the project manager a warning notice for employing illegal workers. Once a warning notice has been received it would be safest for the employer to check the work entitlements of all new workers.

Where an employer does not have access to Visa Entitlement Verification Online or the Visa Entitlement Verification Faxback service, they could call the Employers’ Immigration Hotline for advice on checking work entitlements.

Scenario 9

A restaurateur advertises for a new head chef in a local newspaper. The most promising applicant has many years experience working in Australian restaurants. As the restaurateur has previously received a warning notice for employing an illegal worker, she asks the applicant for proof of work entitlements. The applicant claims he was granted Australian citizenship several years ago and promises to bring in his Certificate of Australian Citizenship. The applicant is given the job and commences work immediately. Several weeks pass and despite being reminded on several occasions, the new head chef fails to produce his Certificate of Australian Citizenship. Six months later the head chef is detained by the department as a long term visa overstayer. Would the restaurateur commit the offence of recklessly employing an illegal worker in these circumstances?

Answer

The restaurateur could be found to have committed an offence in this scenario because there is a ‘possibility’ that the head chef is an illegal worker. The possibility arises because:

• the restaurateur operates in a high risk industry where the department locates a significant number of illegal workers
• the restaurateur has previously been warned about the risks of employing illegal workers
  and
• the head chef failed to show evidence of his claimed Australian Citizenship which could suggest he was trying to hide his true status.

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