YES is the short answer. But the good new is there have been some developments which mean you can now structure your contracts to help reduce your liability.
Remind me — what are my responsibilities ?
You may remember MV’s eBrief last year about the amendments to the Migration Act 1958 (Cth) (Act) that came into effect on 1 June 2013. The amendments imposed significant penalties for businesses that fail to take ‘reasonable steps’ to ensure they were not allowing illegal workers to work on their site or in their premises.
The amendments meant that if you allowed a person to work on your building site or at your place of business, even if that worker was supplied by a labour supply company, contractor or subcontractor, you were responsible for ensuring that person had the right to work in Australia.
What is the good news ?
When we first reported on this issue, there was virtually no guidance on what ‘reasonable steps’ were. The good news is that the Department of Immigration and Border Protection has now stated that a ‘reasonable step’ can include contracting with a third party to make them responsible for doing the visa check. That third party can be the entity that is supplying your site or business with the worker.
You therefore will be likely to have satisfied the ‘reasonable steps’ obligation if you have added a clause to your subcontracts or labour hire agreements that requires your contractor/labour hire supplier to check the legality of all workers they supply to your workplace. That is, you can push the responsibility down the line, but only if you have a written contract that expressly says this.
How do I ensure my contracts comply so that I don’t get fined?
The change will not be extensive – in most cases it will be a matter of simply inserting an additional short clause. The wording will vary depending on the kinds of contracts you use. It would be advisable that you seek legal advice on how best to draft a clause that limits your liability with reference to your specific business model or arrangement.
For contractual advice on how to avoid being penalised under the Migration Act, contact: