457 visa laws before Parliament today: what your business needs to know

With legislation before Parliament today which cracks down on temporary 457 visas, now is the time for employers to understand the risks of employing migrant workers.

Recent changes to 457 visa laws require all employers check to ensure their employees are allowed to work in Australia, according to Holding Redlich partner and accredited immigration law specialist Maria Jockel.

“Under this new act, which has just come into effect, you’re guilty under the civil penalty provisions even if you didn’t do anything knowingly wrong. So it’s what we call a strict liability provision.”

The legislation covers two types of liability: civil liability, the ordinary standard of proof on the balance of probability, and criminal liability, which is beyond reasonable doubt.

Under the act, employers can be found guilty if they allow somebody who is not an Australian citizen and who is in Australia illegally to work, or allow somebody who is a non-citizen, but is in Australia legally to work, but the nature of their visa condition does not allow them to work in in the way the employer intends them to work.

A labour hire company or recruiter that refers somebody who is in Australia unlawfully to a potential employer to work, or refers a person who is in Australia legally to work, but by doing so puts them in breach of their work rights, can also be committing a civil liberty offence.

Jockel says these same provisions can be applied in the criminal context.

“For the criminal penalty provision, you simply have to prove a greater standard of recklessness or knowingness,” she says.

If found guilty of a criminal offence in this context perpetrators can face two years in jail and fines of $20,400.

Employers found guilty of wilfully exploiting workers can face five years in jail and fines of $51,000.

Holding Redlich workplace relations specialist Charles Power says the Fair Work ombudsman is working closely with the Department of Immigration and Citizenship to crack down on cases like these.

“The FWO has readily identified that sponsored workers are an area of particular vulnerability and they’re directing the greater share of resources into monitoring and dealing with complaints and making examples of employers of sponsored visas in order to access the public interest on policy grounds,” he says.

Ignorance of the law is no excuse.

“With the number of people entering and departing Australia constantly, you are meant to be hyper-vigilant. That’s the message the government is giving would-be employers,” says Jockel.

Jockel says all employers should undertake a check of work rights.

“That should be embedded in your human resource protocols, it should be non-negotiable. If you check people’s work rights and if you require those who work with you, who are third-party contractors to do likewise, you are minimising the incidence of risk. If you are caught out then you’ve at least got a defence,” she says.

Employers can register to use DIAC’s online system VEVO (Visa Entitlement Verification Online), which allows registered Australian organisations to check a person’s immigration status and work rights.