Do all workers at your business or site have a visa?

Do all workers at your business OR on your work site have a visa? You can now be personally liable if there are unlawful workers on your site – even if you did not engage them directly and did not know they did not meet the visa requirements.

Amendments have been made to the Migration Act 1958 (Cth) which now impose penalties on anyone who allows — knowingly or otherwise — a foreign worker who does not have the correct visa (an ‘unlawful non-citizen’) to work. These amendments came into force on 1 June 2013…

You can now be personally liable if there are unlawful workers on your site – even if you did not engage them directly and did not know they did not meet the visa requirements.

Amendments have been made to the Migration Act 1958 (Cth) which now impose penalties on anyone who allows — knowingly or otherwise — a foreign worker who does not have the correct visa (an ‘unlawful non-citizen’) to work. These amendments came into force on 1 June 2013.

But I don’t employ labour directly — surely this doesn’t affect me?

Yes, it does. Prior to the amendments only those persons directly engaging unlawful non-citizens were exposed to penalties. Now any person or business that allows an unlawful non-citizen to work may be liable for civil penalties or face an infringement notice. The definition of “allows to work” is incredibly broad. If you participate in an arrangement, or any arrangement included in a series of arrangements, for the performance of work by an unlawful non-citizen, you will be caught. It does not matter whether the unlawful non-citizen is performing work for you, or working for someone else as part of an arrangement with you.

The word ‘arrangement’ is not defined in the Act, but we know from the cases applying the security of payment legislation that ‘arrangement’ is much broader than legally enforceable contracts. series of communications can be an ‘arrangement’.

The explanatory memorandum to the amending legislation makes it clear that the Act has been amended specifically to catch the types of working arrangements that commonly occur on construction sites — citing the following example:

Business A has a contract for services with Business B to provide carpenters at short notice for additional work for two weeks. Business B contacts one of its sub-contractors, Business C to source the carpenters. Business C provides four carpenters to Business A. Business A pays Business B for the workers and Business B pays Business C a commission for providing the workers. The worker’s wages are paid by Business C.

One of the carpenters is an unlawful non-citizen

Under the old Act, only Business C would be liable for having employed the unlawful non-citizen. Under the amended Act, each of Business A and Business B can now also be liable.

We do not think a court will see any difference between the above example involving a ‘contract for services’ and the situation where labour is supplied to sub-contractors, contractors and ultimately developers as part of building contracts for the construction of ‘works’.

You can be personally liable, even if you are unaware

The latest amendments introduce ‘no fault’ civil penalties for businesses, executive officers (i.e. directors, CEOs, CFOs) and other employees. his means you can be fined up to $15,300 (and your business up to $76,500 ) even if you did not engage the worker directly and were not aware, or were reckless as to whether the worker was in fact an unlawful non-citizen. The criminal penalty of up to 2 years imprisonment for a contravention of section 245AB (or 5 years for an aggravated offence) is still applicable, but the hope is that deterrence will be better achieved through financial penalties which are consistently enforced in the event of any contravention.

Have we got your attention now? Here’s what you can do to avoid penalties

Executive officers and companies have a defence if they have taken ‘all reasonable steps at reasonable times to check that a worker is not an unlawful non-citizen’. Precisely what this means is not clear, and until there are some cases about the new legislation, or regulations fleshing out the requirements, we are somewhat in the dark.

The explanatory memorandum to the Act suggests reasonable steps at reasonable times may include, but are not limited to, any of the following:

  • Verifying a potential employee’s visa status on the Department of Immigration and Citizenship’s website Visa Entitlement Verification Online (VEVO);
  • Viewing a document which ‘appears to be’ evidence of the worker’s permanent visa, or temporary visa with an entitlement to work;
  • Viewing a document which ‘appears to be’ evidence of the worker’s Australian citizenship; or
  • Requiring a subcontractor or other labour supplier to verify the employee’s work status.

It is unclear whether obtaining verification (for example, a statutory declaration) from your subcontractor that it has taken these steps will be enough. We suspect it probably will not.
For now, the best way to ensure you are not exposed is to implement procedures to take the above steps before letting any worker engaged by you or any of your subcontractors or sub-subcontractors, onto the site, and keep a record if a worker’s visa is due to expire prior to their completion of the work at the site.

Want more information?

Our team can provide straightforward advice on your likely exposure under the reforms, and recommend steps you and your business can take to avoid liability under the Act.

For more information or assistance, please contact:

Alisa Taylor — Senior Associate — Building and Construction Dispute Resolution
(02) 6279 4388
alisa.taylor@meyervandenberg.com.au

Kimberly Moore — Senior Lawyer — Building and Construction Dispute Resolution
(02) 6279 4339
kimberly.moore@meyervandenberg.com.au

Jonathan Devenish — Lawyer — Building and Construction Dispute Resolution
(02) 6279 4432
jonathan.devenish@meyervandenberg.com.au

Tessa Dignam — Lawyer — Building and Construction Dispute Resolution
(02) 6279 4478
tessa.dignam@meyervandenberg.com.au