If you are seeking to employ overseas nationals to work for you
in Australia, it is imperative to check their visa work rights as
this can save you thousands.
Under the Migration Amendment (reform of Employer
Sanction) Bill 2012, it is now much easier for the
Government to prosecute non-compliant companies. Employers are
defined as either 'knowing' or 'should have known'
about their employees' work rights.
Under the new Act, employers accused of breaches must prove that
they have taken reasonable steps to check the visa conditions of
people found to be working illegally within their business. There
are statutory defences available to individuals and businesses that
make genuine attempts to verify the status of an overseas national,
through means such as checking the Federal Government Visa
Entitlement Verification Online (VEVO) electronic system.
The penalties for businesses, which employ workers who do not
have work rights in Australia, can include infringements notices
and civil penalty orders up to $49,500. Individuals may also be
subject to civil penalties or criminal sanctions, including a term
The House of Representatives passed the bill in November last
year and it is expected to take effect, following debate in the
Senate, in March 2013.
Keep a record of when your employee's visa expires and the
conditions associated with visa. There are a variety of conditions
attached to temporary visas, which not only include restricting the
type of work that can be undertaken, but also the amount of work
the visa holder may undertake during a period of time.
Don't just rely on what you are told; do checks, cite and
keep a copy of original documentation.
Avoid discrimination claims by being consistent in your
approach to checking work rights. Don't single out a particular
applicant for checking based on their cultural appearance.
Treat everyone equally by checking the work entitlements of all
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).