Why an employer should never hire an unlawful overseas worker

by The FindLaw Team

Many FindLaw visitors would probably have seen one of those nightly current affair programs in which a reporter accompanies immigration inspectors who are conducting a raid on a place of employment which has either knowingly, or recklessly, hired workers who aren’t allowed to work in Australia. Furthermore, most readers will probably also be aware that hiring workers who are not permitted to legally work in the country, is an offence under the Migration Act (the Act), and any employer who is found to be in breach of the Act, may face substantial penalties.

We here at FindLaw have already covered extensively the different types of visas that are needed to enter the country, which bestows the visa holder numerous rights. Some visas allow visitors to gain employment while in Australia, while other types of visas prevent a person who is not either a permanent resident, or citizen, from working whilst in the country. Although, it should be noted, that visa holders who are legally entitled to work while in the country, may be still be in breach of their visa conditions if they have infringed of certain restrictions – such as the amount of hours the person is allowed to work per week – which may be considered as a breach in regards to the specific type of visa that the person is holding. 

How are employers affected?

Any person or company who hires an employee whose visa does not allow them to lawfully work while in the country, may be committing an offence if they have directly contracted the person, whilst knowing that the individual does not have the right to work in Australia.

However, if an employer obtains the services of an employee through a recruitment agency, which was the entity who had hired the unlawful worker knowingly, may be the body that is liable of committing an offence – rather than the employer. Remember, the test for an employer who is in breach of the Act, is one who has either the knowledge, or is reckless to the fact that the person who they have employed, is breaching their visa conditions, rather than the employer who makes an honest mistake.

What are the penalties for employers who are found to be guilty of hiring unlawful workers?

The penalties imposed for either an individual or employer who is found guilty of hiring an unlawful employee is treated rather seriously under Australian law.

An individual found guilty of committing an offence under the Act can be fined up to $13,200, and face up to two years imprisonment. Meanwhile, companies who are found guilty of employing the services of an illegal worker can be fined up to $66,000 for every unlawful employee who is found to be working within the company.

Furthermore, employers who knowingly exploit workers who don’t have a lawful work status in Australia are treated more seriously under Australian law. Individuals and companies who are found guilty of exploiting a migrant worker either through slavery or sexual servitude, can face up to five years imprisonment for an individual, or a maximum of $165,000 per employee for a company.

So beware. 



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