Australia: Protecting organisations from personal liability when hiring international workforce

Employers should check visa status for all non-Australian workers both before and during employment.

If staff are detected working in breach of visa conditions or without a valid visa, the employer can face severe penalties. Penalties include fines and, in some cases, criminal sanctions. Businesses may be penalised even if they are not aware that staff are working unlawfully.

On top of this, company directors and officers may face personal liability if there are illegal workers in the business.

There have been several businesses in the hospitality industry who have been targeted by the Fair Work Ombudsman and the Department of Home Affairs. Due to data matching initiatives between the ATO and other government agencies, employers hiring staff unlawfully are more likely than ever to be caught.

The best way to navigate through this compliance heavy maze is to engage a Migration Law Firm who work in this space daily and are experts in all migration matters. Immigration lawyers understand the pressure points for business as well as what the Department of Home Affairs expects. That is why partnering with a great firm can assist your organisation to prepare, pre-empt, and lodge the best application possible to improve your chances of success.

A wide range of possible penalties can apply for employers engaging overseas workers illegally:

• Warning – generally an Illegal Worker Warning Notice (IWWN) will be issued on the first offence
• Infringement Notice – if the conduct continues, the Department can issue an infringement notice requesting payment of a fine. This does not require the Department to undertake court proceedings, and the fine will stand unless the business can provide evidence in defense.
• Proceedings for Civil Penalty Order – The Department can also undertake civil proceedings for offences. This can result in a higher fine for the business, as well as the additional costs and inconvenience of undertaking court proceedings.
• Criminal Proceedings – For serious or repeated offences, criminal proceedings can be undertaken. In this case, the Department would need to show intention or recklessness on behalf of the business. Higher fines are applicable, as well as possible imprisonment of up to 2 years for each offence.
• Aggravated Offence – These are criminal offences which apply where there has been exploitation of workers (e.g., forced labour, or slavery). Imprisonment of up to 5 years is possible for these offences.

The penalties and process for each level of offence are summarised below:

Note that these penalties apply for each offence – if several workers are detected working illegally, the fines could be incredibly significant indeed.

Reputational Risk

• Immigration breaches pose major reputational risk
• Past scandals show significant media appetite for immigration related headlines
• Today's conduct is relevant for the next 7 years

Even simple record keeping mistakes and omissions can result in huge fines and issues. Confusion can lead to common mistakes in the application process. With the help of an experienced immigration lawyer these mistakes can easily be avoided.

The above is a summary only and should not be treated as legal advice. You should seek personalised advice before acting on the above information.

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.