Workplace Relations Australia: Are your employees authorized to work in Australia? Know the Risks!

Monday, February 14, 2011

Are your employees authorized to work in Australia? Know the Risks!

This is a straight forward question, but one that has some very serious legal implications. Under Australian Law, if the business is found to have willfully or recklessly employed a worker who does not hold a valid work visa they may be subject to a $66,000 fine per illegal worker, 2 years imprisonment and/or $13,200 fine per incident for individuals. When the offence is considered to be aggravated, (i.e. when an illegal worker is being exploited through slavery, forced labour or sexual servitude) employers can be punished per illegal worker with a maximum penalty of 5 years imprisonment and/or fines up to $33 000 for individuals and $165 000 for companies.
Should your employment agency be referring an illegal worker to your business, then they are also subject to the same liabilities.

Who is an illegal worker?

Illegal workers are non-Australian citizens who are working in Australia without a visa, or who are in Australia lawfully but working in breach of their visa conditions. As an example, this would include workers who are holding 457 business visas but are not working for the visa sponsor.

How can I make sure a prospective employee is authorised to work?

Asking the prospective employee for proof of work entitlement is mandatory. Sight and photocopy the visa stamp in their passport. Even then you may not be able to work out their legal employment status. Accordingly, the Australian Department of Immigration provides an online Visa Entitlement Verification Service which allows employers to easily check the entitlements of non-citizen. You may also call 1800 505 550.

How do I validate an Australian Citizen?

Naturally, all Australian Citizens are entitled to work in Australia. But it is important that you don’t simply take their word for it. You will need to validate that whoever you’re employing is an Australian Citizen by asking to sight either:

An Australian passport
An Australian citizen Certificate
A certificates of evidence of citizenship, or
An Australian birth certificate.

Don’t feel uncomfortable asking for this information as it is your responsibility under law to do so. Not doing so is may be deemed as ‘reckless’ which again leaves you liable to criminal prosecution.

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Did You Know?

The new Fair Work Legislation came into effect on the 1st July 2009 replacing Work Choices 1995 and the Workplace Relations Act 1996

Unfair Dismissal

As from 1 July 2009, employers who employ 15 employees or more will be now be subject to the unfair dismissal legislation. However businesses with less than 15 full time equivalent employees are exempt from unfair dismissal claims during the employee’s first 12 months of employment.

The unfair dismissal legislation only applies to an employee who earned less than $153,600 (to 30 June 2021), not including commissions and bonuses unless they are subject to a modern award or enterprise agreement.

Leave

Under the new legislation sick leave is now referred to as personal and Carer’s leave provision.

Under the New Fair Work Legislation, all employees who fall under the act are entitled to 10 days personal Carer's leave per annum

Employee's sick leave entitlement is cumulative and there is also no upper limit. All unused leave is cumulated year on year indefinitely.

While on unpaid parental leave, an employee does not accumulate annual leave and personal/carer's leave (which includes sick leave). However, a period of unpaid parental leave does not break an employee's continuity of service for the purposes of long service leave?

You may refuse a request for annual leave if refusal is reasonable and necessary because of your business' operational requirements. Accordingly you may reject the employee's annual leave application. If you decide to do this however, you should explain these grounds clearly to the employee and discuss other times that may be more suitable.

Fair Work Inspector

A Fair Work Inspector has the right to inspect your workplace as part of an audit campaign or in response to a complaint.

On showing suitable identification, Fair Work Inspectors may undertake inspections without warning if they believe work governed by national workplace relations laws is/has been done there.

During an inspection, a Fair Work Inspector can

i) inspect any work, process or object

ii) interview any person,

iii) require a person to tell them who has custody of, or access to a record or document,

iv) require a person who has custody of, or access to a record or document to produce the record or document either while they are on the premises, or within a specific period,

v) inspect and make copies of any record or document that's kept on the premises or is accessible from a computer kept there, take samples of any goods or substances.