Recruitment Scenarios

'Allows to work' scenarios

Scenario: Head contractor/Subcontractor

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, provided there is no contractual relationship between the head contractor and the assistants engaged by the plastering subcontractor. Where the subcontractor maintains the direct employment relationship with the workers, the subcontractor would commit the offence.
The head contractor could stipulate in agreements with subcontractors that the subcontractor will check the work entitlements of all employees, to prevent illegal work on their sites.

Scenario: Harvest time

Iain has grapes that need to be picked immediately to prevent spoiling. He engages casual workers but is unaware of any restrictions on their entitlement to work. Would Iain have committed an offence if it is later discovered two of the workers are illegal workers?

Answer
Yes. It is the responsibility of all employers to ensure that they comply with their obligations. Iain should check the work entitlements of all casual workers as they commence employment. In this situation Iain may be able to access the 48-hour grace period, as long as an accurate record of start dates for each employee can be provided.
See:
48 hour grace period scenarios
Understanding your obligations: How much time do I have to check work entitlements?

Scenario: Direct employment

Mary is the manager of a busy restaurant and advertises for another chef. Mary employs a person who mentions they have significant overseas experience, but have recently been working in another local restaurant. They provide Mary with a Tax File Number (TFN) and a driver's licence. After three months the chef is detained for overstaying their visa. Would Mary have committed an offence in this scenario?

Answer
Yes, Mary could be found to have committed an offence because there is a possibility of the chef being an illegal worker. Mary operates in a high risk industry where the department locates a significant number of illegal workers. The chef stated they had significant overseas experience, indicating they may not be an Australian citizen, and neither a TFN nor driver's licence is evidence of work entitlements. As this is a first offence, the department would usually issue Mary with a warning notice, provided there were no aggravating circumstances such as exploitation present.

Scenario: Renting rooms to sex workers

David owns and manages a licensed brothel, and advertises rooms available for lease. A person responds to David's advertisement, using an Australian Driver's licence to prove their identity. The person advises David they have a Tax File Number (TFN) and states that they are just visiting Australia but they have work entitlements. On this basis, David leases the room on a weekly basis. The sex-worker is later found to be working in breach of the no work condition on their visa. Could David be found to have committed an offence in this scenario?

Answer
Yes, David could be found to have committed an offence because there is the possibility the person is an illegal worker. A TFN and driver's licence are not evidence of work entitlements, and taking a person at their word is not a reliable method of checking work entitlements. Although David is leasing a room; rather than directly employing the sex-worker; he is still responsible for ensuring all workers he allows to work in his establishment have the entitlement to work.

Scenario: Bailment arrangements in the taxi industry

Mark is a taxi owner who regularly leases his taxi to other drivers. Mark is approached by a driver who wishes to lease the taxi for a seven day period. The driver mentions he is an international student, and presents his driver authority and Tax File Number (TFN) as proof of entitlement to work, stating that he is allowed to work full time. On this basis Mark leases the taxi to this driver for seven days. The driver is later found to be working in breach of the 20-hour work limitation on his visa, could Mark be found to have committed an offence?

Answer
Yes, Mark could be found to have committed an offence because there is a possibility the driver would be working in breach of their visa conditions. Although Mark is leasing the taxi to the driver, rather than directly employing him, he is still responsible for ensuring all drivers he allows to drive his taxi have the entitlement to work in Australia. Unfortunately the evidence provided to Mark is insufficient to ensure the driver was entitled to work in Australia. Neither a driver authority nor TFN are evidence of work entitlements. Taking a person at their word is not a reliable method of checking work entitlements.

'Refers for work' scenarios

Scenario: Labour hire intermediaries

Alan is a horticulturalist who obtains workers from a reputable labour hire company to pick a crop of vegetables. Would Alan commit an offence if one of the workers turns out to be an illegal worker?

Answer
No, provided the labour hire company remains the legal employer of the illegal worker Alan would not normally commit an offence. In this situation the labour hire company may be liable. Once Alan discovers that the person is an illegal worker, he should end his working relationship with the worker immediately.
DIAC may still issue Alan with an Illegal Worker Warning Notice (IWWN) because he receives a benefit from the illegal work. Alan could include a clause in any agreement with labour hire companies, stating that the labour hire company will check the work entitlements of all workers they supply. He could also request the labour hire company provide evidence that the check has been conducted.
See: Frequently Asked Questions

Scenario: Informal labour referral

Andrew engages a group of workers referred by a local backpacker hostel to prick oranges at his fruit block. The backpacker hostel claims to have checked the work entitlements of the workers provided to Andrew. Would Andrew commit an offence if one of the workers turns out to be an illegal worker?

Answer
Yes. In this scenario both the backpacker hostel and Andrew could be found to have committed an offence. Andrew should either conduct the work entitlement checks himself, or ask the hostel to provide him with a copy of work entitlement checks conducted so that he may verify the checks have been done and keep a record.

48 hour grace period scenarios

Scenario: Using the grace period during harvest time

Grant engages a number of workers to pick fruit on his block. He does not immediately conduct work entitlement checks, deciding to do these that evening. That evening Grant conducts VEVO checks and discovers one of the workers does not have work entitlements. Would Grant commit an offence in this circumstance?

Answer
No, so long as Grant ends his working relationship with the person immediately upon discovering they are an illegal worker. Employers, in certain industries, who initiate work entitlement checks of new employees within 48 hours of an employee commencing work would not usually be referred for prosecution. Grant would need to prove when the employee started work to get the benefit of the 48-hour grace period.
Please note that persons operating a referral service are not eligible for the 48 hour grace period.
See: Understanding your obligations: How much time do I have to check work entitlements?

Scenario: No immediate access to internet or fax facilities in the construction industry

Rob, the project manager at a construction site in regional Australia, is approached by a number of people who have heard that he is seeking general construction labourers. The site has recently commenced operations and currently there is no access to internet or fax facilities on site. Rob decides to employ the labourers and check their work entitlements the following day while visiting the main office. Upon checking the details using VEVO, Rob discovers that one of the workers does not have work entitlements. Could Rob be found to have committed an offence in this scenario because the workers have already begun work?

Answer
No, provided Rob terminates the illegal worker's employment immediately and can provide evidence of the illegal worker's start date, demonstrating the check was conducted within 48-hours of this date. The construction industry is one of two industry types that may access the 48 hour grace period for checking work entitlements, where there is no immediate access to internet or fax facilities. Please note that persons operating a referral service, regardless of industry type, are not eligible for the 48 hour grace period.
See: Understanding your obligations: How much time do I have to check work entitlements?

Checking work entitlements scenarios

Scenario: Recognising risk

A person approaches Colin, a subcontractor at a construction site, seeking work as a site labourer. The person mentions they have overseas experience so Colin asks whether they have permission to work in Australia. The person says 'yes', advising Colin of their Tax File Number (TFN) and showing him their safety card. Would Colin commit an offence if the person turns out to be an illegal worker?

Answer
Yes, Colin could be found to have committed an offence because there is a possibility the person is an illegal worker. Colin operates in a high risk industry, where large numbers of illegal workers are located. The person mentioned overseas experience, suggesting they are possibly visiting Australia and therefore may not have the entitlement to work. Unfortunately the evidence the person provided to Colin is not sufficient to ensure the person is allowed to work. A TFN is not evidence of work entitlements. Safety cards are not evidence of work entitlements; they indicate a person has completed Occupational Health and Safety training. Finally taking a person at their word is not a reliable method of checking work entitlements.
The department would usually only consider prosecution if Colin had previously been given a warning notice for employing illegal workers, or if there were other aggravating circumstances such as exploitation present.

Scenario: Student visa holders

Lynn manages a supermarket, employing a large number of students, including international students. At commencement of employment Lynn asks her staff to provide her with a Tax File Number (TFN), bank account details and photo ID, often in the form of a driver's licence or student ID card. Many of the university students work an average of 25 hours per week, sometimes more during busy periods. It discovered that the international student visa holders have been working in breach of their visa conditions, could Lynn be found to have committed an offence?

Answer
Yes. Lynn could be found to have committed an offence because the students would have been working in breach of the 20 hour work limitation on their visa. The department would usually only consider prosecution if Lynn had previously been given a warning notice or knew that the visa holders were working in breach of their visa conditions.
If Lynn had conducted a VEVO check on the visa holders the results would have shown that the students were only allowed to work a maximum of 20 hours per week while their course is in session.

Scenario: Student visa holders in the taxi industry

Carl owns a taxi, which he leases to other drivers when he is not driving it. Recently the one driver has regularly been driving his taxi, generally leasing the taxi for 6 nights per week. This arrangement works well for both Carl and the driver, Carl prefers to drive during the day, and the driver is a student so driving at night allows him to attend classes during the day. The driver has provided Carl with his Australian Business Number (ABN) and his state issued driver authority. Would Carl commit an offence if the driver turns out to be a student working in breach of their student visa conditions?

Answer
Yes. It is Carl's responsibility to ensure all drivers, including ABN holders, who lease his taxi are entitled to work in Australia, and that he is not allowing them to work in breach of their visa conditions. Carl works in a high risk industry, where the department continues to locate a high number of student visa holders working in breach of their visa conditions.
It is important to note, neither an ABN nor driver authority are evidence of work entitlements. In future Carl should ask all drivers to provide evidence of their entitlement to work in Australia and conduct VEVO checks on any visa holders. In the case of student visa holders Carl should keep records of the number of hours worked to ensure they are not breaching their visa conditions.

Scenario: Checking work entitlements prior to engaging workers

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
Yes. The employer could be found to have committed an offence. It is the responsibility of all employers to ensure they comply with their obligations. An easy way to do this is incorporate a work entitlement check into the recruitment process. 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.
The department would usually only consider prosecution if the employer had previously been given a warning notice for employing illegal workers, or if there were other aggravating circumstances such as exploitation present.

Scenario: Checking work entitlements of Australian citizens

Angela owns a busy restaurant and advertises for qualified chefs. Angela employs three new staff, two of whom are Australian citizens and the other advises Angela that he is on a temporary work visa. One of the Australian citizens presents an Australian passport, confirming their entitlement to work. The other Australian citizen presents a birth certificate issued after 20 August 1986, which states both parents were born in Australia, also confirming their entitlement to work.

The third job applicant claims they were granted a working holiday visa. They supply an Australian drivers' licence and Tax File Number (TFN), and promise to bring their passport so that Angela can conduct a work entitlement check using VEVO. After several weeks and a number of reminders the employee does not produce their passport. Two months later the employee is detained by the Department of Immigration and Citizenship as a long term visa overstayer. Would Angela have committed an offence?

Answer
Yes, Angela could be found to have committed an offence in this case because there is a 'possibility' the employee is an illegal worker. Angela also operates in a high risk industry where the Department locates a significant number of illegal workers. Angela should have ceased the person's employment until their entitlement to work had been verified. An Australian drivers' licence and TFN are not evidence of work entitlements. The department would usually only consider prosecution of Angela had she previously been given a warning notice for employing illegal workers, or if there was evidence of exploitation.

How the department can assist employers

Scenario: Employer awareness visits

Jenny owns a fast food franchise, and employs a large number of students, including international students. She is aware that the international students have visa conditions, but does not know how to check their work entitlements. Jenny wants to do the right thing and decides to contact the Employers' Immigration Hotline (1800 040 070) to arrange for someone to come and explain her obligations under the Employer Sanctions legislation and how to check work entitlements. The DIAC officers who visited were able to assist Jenny by explaining how to check work entitlements for all employees and in signing up for VEVO so she may check the work entitlements of visa holders.
After the visit Jenny asks all her staff to present evidence of their entitlement to work and conducts VEVO checks on the student visa holders. The VEVO check shows Jenny that they are entitled to work for up to 20 hours per week during semester and unlimited hours during semester breaks. As suggested by DIAC officers, Jenny asks the student visa holders to provide a course calendar from the relevant Educational Institution's Registrar's Office. This allows her to keep track of when semester breaks are to ensure she rosters the international students according to their work entitlements. Jenny also decides to include a work entitlement check when employing all new staff and adds this to the employment contracts. She also decides to recheck any temporary visa holders (such as the international students she currently employs) every three months to ensure there has been no change to their visa status.

Employers' immigration hotline (1800 040 070)

George is the human resources manager of a large company, and employs a large number of university students, including international students, and also knows a few of the employees are on working holiday visas. George is aware that international students generally have work conditions attached to their visa and that there are conditions for working holiday makers though is unsure of what these are and how to find out more. George calls DIAC's Employers' Immigration Hotline (1800 040 070), the operator explains the Employer Sanctions Legislation and discusses the visa conditions George mentions. The operator also walks George through signing up for VEVO.
After calling the hotline, George initiates a number of policy changes within his organisation to ensure the appropriate checks for work entitlements are conducted on all employees. George keeps a copy of all VEVO checks he conducts, and asks student visa holders to provide him with a course calendar. He also sets a reminder in his system to recheck temporary visa holders every three months, or sooner where the visa expiry date is earlier.
The new steps George has put in place effectively prevent breaches of the Employer Sanctions legislation and reduce the risk of employing illegal workers for the company.

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