Your look out on visa workers

The local labour market needs foreign workers to fill the gap, but employers now have more responsibility – and increased scrutiny. By PETER VITALE.

By Peter Vitale

With ongoing controversy surrounding the use of foreign workers to meet shortages in the local labour market, employers need to be aware that there is increased scrutiny, and more responsibility to ensure that your employees have a right to work in Australia.

Tough new laws came into effect in August that impose substantial penalties for employing someone who doesn’t have an appropriate visa to work in Australia.

Under the Migration Amendment (Employer Sanctions) Act, a person who knowingly or recklessly employs, or refers to an employer, a person without an appropriate right to work can be imprisoned for up to two years.

Hefty financial penalties – up to $66,000 for a corporation – also apply. Further, if the offence is “aggravated” by circumstances in which the employee is engaged in forced labour or is being sexually exploited, the penalties are up to five years’ jail for an individual and a fine of up to $165,000 for a company.

So employers now operate under a regime that effectively puts the onus on them to ensure the employee has a right to work in Australia. To assist in this, the Department of Immigration and Citizenship has established an online service for employers to check the status of individual visa holders.

It’s not only the prospect of criminal sanctions that should have employers concerned about this issue.

The use of temporary visa holders to fill skill gaps in the Australian economy has become a political hot potato. Unions say employers are not exhausting all the options within Australia or training Australians to fill the gaps. They say the influx of foreign labour also serves to undercut local wages and conditions.

In June this year, the Federal Government introduced the Migration Amendment (Sponsorship Obligations) Bill, to create a raft of obligations for a sponsoring employer to meet costs related to the visa holder’s entry to Australia, including registration and licence costs, some medical expenses and travel expenses.

The bill would also create a separate offence for employers who fail to pay employees the appropriate minimum salary. These obligations, by and large, reflect undertakings that sponsor employers currently give to the Department of Immigration and Citizenship. However, under the new bill, fines can be up to $33,000 for corporations who fail to comply. Inspectors will also be authorised to issue “on the spot” infringement notices.

Other politicians are also getting in on the act, with the Parliamentary Joint Standing Committee on Migration recently tabling a report containing 25 recommendations to improve the monitoring, enforcement and reporting arrangement for long-stay business visas.

The Workplace Ombudsman is also playing a role in cracking down on employers who don’t meet their obligations to foreign workers. In recent weeks the director of a liquidated company has been ordered to personally pay a fine of more than $9000, even thought he money owing to employees had been repaid in October 2006.

This is reported to be the first case in which an individual has been penalised under the Workplace Relations Act.

The lessons for employers:

1. Carefully assess your needs to source labour from outside Australia.
2. Be aware that requirements of employers sponsoring business or working visas are becoming more onerous.
3. Make sure you get advice from a reputable registered migration agent.
4. Ensure that any overseas agents you use are reputable.
5. Make sure you check that the proposed employees have a right to work in Australia.
6. Understand and meet your minimum employment obligations to visa holders.

Peter Vitale is the principal of CCI Victoria Legal.