Legal sanctions against non-compliant employers

Despite announcing new tougher measures against dodgy employers on Saturday 23 February 2013, as recently as September last year, the government introduced new legislation  into the Parliament which continued a crack down on employers who hire illegal workers,  setting out a range of board criminal and civil penalties.

The Migration Amendment (Reform of Employer Sanctions) Bill 2012 implemented further recommendations from Stephen Howell’s 2012 system review and set out penalties for employers in breach of legislation, including infringement notices and search warrants.

At the time the Minister for Immigration, Mr Bowen said ‘This legislation strikes a balance between targeting those employers who flout the rules, while taking care not to overstretch the resources of the vast majority of employers who seek to do the right thing.’

‘It enables strong action if initial approaches involving education and targeted warnings fail to convince deliberately uncooperative employers that they are not above the law.’

As part of the strategy to encourage compliance, the government will also ramp up its awareness campaign and help employers to gain access to information about prospective employees’ visa work status.

‘There will be no excuse for errant employers who repeatedly test the system, claiming that they were unaware of the need to check a person’s work entitlements or they did not have the means to do so,’ Mr Bowen said.

‘For those employers who do verify the work entitlements of non-citizens, there are statutory defences in the Bill to protect them.

‘Abusing employment practices affects everyone by limiting work opportunities, restricting the migration program and allowing for exploitation of vulnerable people. Abiding by the rules ensures a fair go for employers and workers alike.

‘The graduated system of sanctions will operate as a last resort and should only be of concern to those employers who seek to circumvent the law.’

The legislation’s key amendments include:

  • amending the criminal offences and creating new non-fault civil penalty provisions and an infringement notice scheme for people who allow or refer an unlawful non-citizen to work, or allow or refer a lawful non-citizen to work in breach of a work-related visa condition
  • creating statutory defences where reasonable steps are taken at reasonable times to verify a foreign national worker’s entitlement to work
  • broadening the application of criminal offences and civil penalty provisions to hold a person liable for participating in an arrangement, or series of arrangements, that results in a foreign national working without lawful entitlement
  • extending both criminal and civil liability, in certain circumstances, to executive officers of bodies corporate, partners in a partnership and members of an unincorporated association’s committee of management
  • creating search warrant and notice to produce powers specifically to facilitate the investigation of suspected breaches of these offences and civil penalties.

Administrator’s note:

So what has happened between September 2012 and the announcement on Saturday from the new Immigration Minister Brendan O’Connor? Some newspaper reports are talking about closing loop-holes allowing overseas workers to be paid less. What loop-hole is this? It is difficult to avoid the conclusion that this most recent ‘initiative’  is either  a timed response to certain interests (the unions) in the Australian economy, or an admission by the government that the previous system – tightened up in September 2012 – was a failure.

Even before the law was introduced in September 2012 DIAC had the power but did not (or could not with available resources) enforce existing measures. So what is the difference in the latest political announcement? For as long as DIAC activities are restricted- for fiscal or political reasons – some employers will continue to test the system.