3 Things Australian Employers Must Know About Right to Work Compliance
This guide can help you understand your obligations as they relate to right-to-work compliance under the Migration Amendment (Reform Of Employer Sanctions) Act 2013, including a few tips for staying on top of your mandatory work rights checks.
As an employer in Australia, you have an obligation to ensure each of your employees has the right to work in the country. Yet, this legislature is often overlooked or ignored, leading to fines and the potential for reputational damage. Whether or not you sponsor overseas workers, all Australian businesses are subject to the Migration Act 1958 (Cth.) and the subsequent 2013 Migration Amendment. This legislation outlines right to work checking requirements for citizen and non-citizen employees. Failure to comply with these right-to-work regulations can lead to fines and even criminal penalties. This guide can help you understand your obligations as they relate to right-to-work compliance under the Migration Amendment (Reform Of Employer Sanctions) Act 2013, including strategy for staying on top of your mandatory compliance.
Understanding the Migration Amendment (Employer Sanctions) Act 2013
All Australian Citizens have a full right to work in Australia. Many non-citizens gain the right to work through various visa programs. However, that doesn’t mean citizens and visa holders are exempt from checking of workplace entitlement at point of hire. It is a legal requirement for an employer to make sure that all employees have the right to work and if on a visa are not violating the terms of that visa. The Migration Amendment (Reform Of Employer Sanctions) Act 2013 introduced penalties for an employer who allows a non-citizen to work in circumstances where they don’t have appropriate work rights. Minimum penalties begin with an administrative warning. More severe infractions can result in fines and up to five years imprisonment.
Penalties apply to individuals who employ or those who continue to employ non-citizens performing outside their visa restrictions. Ignorance isn’t a defence for non-compliance. However, the amendment states that penalties do not apply if the employer “takes reasonable steps at reasonable times to verify” employees’ citizenship or visa conditions in relation to current employment. As such, employees must make significant efforts to ensure their employees have the right to work.
What it Means for Employers
The amendment places the burden of proof for legal worker status in the hands of employers. All Australian employers have the obligation to collect a declaration of Citizenship and then validate the rights of employees and contractors to work in Australia. Ignorance (being unaware of your employees’ work status, or the terms of the regulations) is not a plausible defence to avoid penalties.
To comply with these obligations, employers must obtain a declaration of Citizenship and then take the following measures.
- When Employing Australian Citizens: Request evidence of Citizenship which can be demonstrated by providing; an Australian Passport, or an Australian birth certificate + photo ID, or an Australian citizenship certificate + photo ID. Employers should sight and keep a record of sighting these documents. A copy of the document should not be retained.
- When Employing Non-citizens: Request a copy of a foreign passport, travel document, or ImmiCard, collect and record consent for a workplace entitlement check, and then validate work rights via a VEVO check.
The amendment also states that employers must take “reasonable steps at reasonable times” to continually validate a non-citizen’s right to work in Australia. That means it is important to conduct a VEVO check on these employees on an ongoing basis throughout the lifecycle of the employee. The frequency of VEVO checks required for you to remain compliant varies depending on what type of visa your employee holds, and the risk factors associated with that visa. In most cases, a check is required at a minimum of every three months as well when the expiry date for the visa is approaching.
3 Things Australian Employers Must Know About Right to Work Compliance
So, why all the attention around an amendment that is nearly 10 years old? This piece of legislation is often overlooked and sometimes even ignored by employers. Yet, it could lead to serious penalties for employers who don’t know or understand the regulations.
It’s Easier To Get Caught Than in the Past
Historically the Department of Home Affairs, (the government agency that oversees right-to-work requirements) had limited resources to conduct checks in this area. So they were not able to keep up with all employers who employed or continued to employ workers who no longer had the right to work. Anonymous tips were basically the only way the agency was notified of employers who failed to comply. The introduction of Single Touch Payroll in 2019 brought about a big change since it requires employers to report pay activity to the ATO on a pay cycle basis. The Australian Government now uses data matching technology between Government departments. Home Affairs is aware of payroll data to individuals through the data matching with the ATO. As a result, the Department of Home Affairs has almost real-time information. They can keep track of who is being employed and actively paid in Australia.
Not Every Non-Citizen Has the Same Work Rights
Obligations under the Employer Sanctions Act require employers to check the status and work rights of a prospective employee. They must also complete routine checks to determine the ongoing work rights of visa holders. Under Australia’s visa system, non-citizens have conditions associated with the visa that they hold. These conditions will include specific conditions and limitations related to work rights.
- New Zealand citizens have full work rights.
- Working Holiday Visa holders can only work for an employer for six months.
- Student visa holders can only work 40 hours per fortnight while their course is in session. And they can work unlimited hours during school holidays.
- Generally, sponsored workers can only work for their sponsoring employer, but their family members have unrestricted work rights.
There is an Easier Way To Maintain Right to Work Compliance
Automated visa check solutions allow you to gather all the same information as a VEVO check with additional relevant information along with other convenient benefits. It’s clear that a single visa check during the onboarding process isn’t sufficient to maintain compliance. Yet, efficiently keeping up with the right-to-work status of every employee requires cumbersome manual checks. Automated ongoing checking provides employers with continually updated information about all employees’ working rights. Instead of performing individual VEVO checks, you can have relevant information sent directly to you in a convenient report that highlights information about your employees’ changing statuses.
CheckWorkRights simplifies the visa checking process and right to work compliance overall. Our tool eliminates manual labour and keeps employers up-to-date with changing visa statuses of all employees. Learn more about how CheckWorkRights can help you meet immigration compliance standards with ease.
