Information on Reforms to Employer Sanctions
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Changes to penalties for employers of illegal workers
The government plans to introduce new laws in 2012 to establish civil penalties and fines for employing or referring illegal workers. The recently released Howells report on the effectiveness of employer sanctions legislation found evidence of a growing number of illegal workers in Australia. Illegal work is a problem because it undermines the integrity of the migration program, leading to the exploitation of vulnerable workers and a reduction of job opportunities for Australians and permanent residents.
The proposed legislative changes are designed to target businesses who exploit illegal workers while protecting and educating the majority of businesses that do the right thing. They are not expected to come into effect until early 2013. Prior to the commencement of the changes, education and awareness campaigns will be launched to help Australian businesses understand how to check and maintain an authorised workforce.
Responsibilities for employers
Since 2007, it has been an offence to allow to work (or refer for work) non-citizens who do not have permission to work or are working in breach of a visa condition. The reforms will introduce non-fault based civil penalties and infringement notices relating to illegal work, as well as new powers to gather evidence and clarify the scope of potentially liable parties. The existing criminal penalties will remain.
New non-fault based civil penalty provisions
When the proposed new laws take effect, new non-fault based civil penalty provisions will apply where a person:
- allows or refers an unlawful non-citizen to work
or - allows or refers a non-citizen to work in breach of a visa condition that limits or restricts work, but only where the breach occurs solely as a consequence of that employment/referral.
Example: If a student with a 40 hour per fortnight work limitation, works in excess of 40 hours per fortnight with one employer, that employer would be liable.
The non-fault based nature of the proposed civil penalty provisions means that there is no requirement to prove that the employer knew the non-citizen did not have permission to work. Rather, it will be enough that a non-citizen is found to be working without a visa or in violation of their visa entitlements.
Defences
To balance these civil penalty provisions there will be statutory defences available to protect employers from liability where they have tried to do the right thing. These defences will be available if reasonable steps were taken by the person who employed or referred the non-citizen to work. An example of a reasonable step will be checking the applicant's work entitlements through the online Visa Entitlement Verification Online (VEVO) service.
Infringement notices
The proposed laws will also enable the Department to issue an infringement notice as an alternative to court action in the event that a civil penalty provision has been contravened. Recipients of an infringement notice will be able to pay the infringement amount, seek or obtain agreement from the department to withdraw the notice or have the matter resolved in court (with exposure to the higher civil penalty if they lose).
An infringement penalty is one-fifth of the maximum civil penalty as is consistent with Commonwealth policy.
Other elements
The proposed new laws will also clarify the employment relationships that come within scope of the sanctions. This will enable the Government to more effectively address illegal work where it occurs, for example, in sham contracting arrangements.
Enhanced evidence gathering powers are planned to complement the proposed laws. These powers would enable Departmental Officers to gather evidence relating to the infringements, civil penalties and existing criminal penalties.
Consultation on draft legislation
Draft legislation is expected to be available for consultation in the first half of 2012.
Howells Review
The Report of the 2010 Review of the Migration Amendment (Employer Sanctions) Act 2007 by Mr Stephen Howells was released by Minister for Immigration and Citizenship Chris Bowen on Thursday 21 July 2011.
See: 2010 Howells Review of Employer Sanctions