Legal change makes businesses and business owners liable for $15,000 fine for employee visa contraventions
Tuesday, June 4, 2013/
Businesses have been warned they could face infringement notices worth over $15,000 if they employ anyone who is in breach of their visa conditions, thanks to a new amendment which came into effect on June 1.
The amendment to the act is part of an Immigration Department crackdown on anyone who continues to work in Australia while breaching visa conditions – the amendment also places employers personally at risk for breaches.
In the most alarming change, the act no longer requires proof of criminal intent to issue a notice.
The Migration Amendment (Reform of Employer Sanctions) Act commenced on June 1 and contains a no-fault provision which, according to KPMG, “removes the defence by employers who may have argued they were not aware of the issue”.
If employers have anyone working for them breaching their visa, they can receive an infringement notice of $15,300 from the Immigration Department. Previously, the fine was under $10,000.
Previously, the department needed to prove criminal intent. Mark Webster, the founder and chief executive of vSure and Acacia Immigration Australia, told SmartCompany this morning that is no longer the case.
“Now the infringement notice can be given for the mere fact they have someone employed in breach of the legislation,” he says.
“The amendment has also expanded the definition of what it means to have someone working for you – it can not only mean a direct employee but a contractor as well.”
Webster warns the amendment will present an administrative burden for businesses, noting many employers don’t have these types of details ready, nor do they properly screen candidates for making sure they are on a proper visa.
“Some of the people we’ve spoken to don’t even know how many temporary workers they have,” says Webster.
“Most people are not ready for this legislation.”
The change means employers need to lift their game in terms of understanding the visa requirements and obligations of everyone who works for them.
Webster says businesses and business owners need to do better.
“Companies need to be making sure that every single person working for them has the required visa and is complying with it…and they also need to keep a record of that check for their own purposes.”
“They also need to monitor the expiry dates of all those visas.”
As a final blow, Webster notes employers can potentially be held personally responsible for these breaches – a motivator for companies to get their act together.
“If you own a business, you could be facing fines yourself. They’re going to take this pretty seriously; it’s something the department is going to have as a focus.”
“Businesses…really need to lift their game.”