Legal workers - a guide for employers

Australian employers could face infringements or civil penalties if they allow illegal work regardless of whether they knew someone was an illegal worker. We expect employers to take reasonable steps to make sure they are not employing, referring or contracting illegal workers.

This guide sets out a range of steps employers can take to make sure they are complying with their obligations.

We are focussed on responding to those employers that wilfully take part in illegal work, not penalising employers who act in good faith.

We expect employers to check that all non-citizens working for them are allowed to work. This includes:

  • paid and unpaid work
  • if they are sourced directly or via a contractor, labour hire or referral company
  • alternative arrangements that are common in the construction, taxi, hospitality, cleaning and sex industries.

Definition of an illegal worker

An illegal worker is a non-citizen who is working without a valid visa or working in breach of a visa condition. Not everyone who comes to Australia on a visa has permission to work.

Definition of a legal worker

Australian citizens, New Zealand citizens and Australian permanent residents are legal workers and have unlimited permission to work in Australia.

Some Australian visas have work limitations that could include not being able to work at all or only being able to work with a certain employer or a specific number of hours.

An Australian visa holder who is not in breach of their visa conditions is also a legal worker.

Australian citizens, permanent resident and New Zealand citizens

An employer who is confident that their worker is an Australian citizen, permanent resident or New Zealand citizen would not need to conduct any checks on that worker if:

  • the person has worked in Australia for five or more years (and has no reason to believe this person is a foreign national)
  • the person states that they were born in Australia and lived in Australia until at least 10 years old  (and has no reason to believe this is not true)
  • the person provided information that their primary and further education was in Australia (and has no reason to believe this person is  a foreign national)
  • the employer has personal knowledge that the person has lived in Australia for ten years or more (and has no reason to believe this person is a foreign national).

Proof of citizenship or permanent resident status

A single check confirming citizenship or permanent resident status at the time of employment is all that is required.

To confirm Australian or New Zealand citizenship an employer can sight:

  • Australian or New Zealand passport
  • Australian birth certificate and a form of photo identification
  • evidence of Australian citizenship and form of photo identification
  • certificate of Status for New Zealand citizens in Australia and a form of photo identification.

To confirm permanent resident status, an employer can sight:

  • certificate of permanent resident status and a form of photo identification
  • a passport issued by the government of another country along with a check using Visa Entitlement Verification Online (VEVO).

In the absence of a form of government-issued photo identification, an employer might choose to sight as many of the following supporting documents considered necessary to confirm identity:

  • confirmation of enrolment to vote in Australian state or federal elections
  • Medicare card
  • driver’s licence / taxi license
  • tax file number
  • references from previous employers
  • tenancy agreements or home ownership details
  • tertiary qualifications certificate
  • trade certificate
  • change of name certificates (if applicable).

Note: The above documents do not provide evidence of permission to work.

We recommend copies of any sighted documents be kept in the employee's record.

Checking if a non-citizen has permission to work

We expect employers to take reasonable steps, at reasonable times, to confirm that a non-citizen is allowed to work.

If an employer has reason to believe a worker is a non-citizen, they need to check the non-citizen’s visa does not have work restrictions.

The preferred method of checking visa details is to use our free online service Visa Entitlement Verification Online (VEVO).

Visa Entitlement Verification Online (VEVO)

VEVO is a free online government service and is the preferred method of checking if non-citizens have work restrictions on their visa. VEVO checks can be used as evidence that reasonable steps have been taken by an employer to check that a non-citizen is allowed to work.

Employers can register as a VEVO Organisation and see the following information for non-citizens:

  • the type of visa the person holds
  • when the visa was granted and when it will expire
  • if the person has unlimited right to work, no work right or work restrictions.

The employer must check VEVO themselves, or have received a VEVO email response. Viewing a copy of VEVO results conducted by a third party or a printed copy held by a non-citizen is not sufficient as these could be forged or be out of date.

VEVO maintains records of all checks including when the check was conducted, the result, who conducted the check and who it was conducted on.

VEVO does not confirm a person’s identity. Employers need to confirm identity by sighting identification documents and make sure these match the VEVO details.

VEVO email

Employers can ask the non-citizen to send their current visa details directly from the department's VEVO email. A non-citizen can do this when they access VEVO as a visa holder, using one of the following reference types and their date of birth, passport number and country:

  • visa transaction reference number
  • visa grant number
  • visa evidence number
  • password.

We inform visa holders of the conditions associated with their visa, including any work limitations or if they have no work rights. If an Australian employer accepts a VEVO email from a visa holder and there are no work restrictions associated with their visa, the employer can be confident that person is a legal worker.

VEVO error messages

There are many reasons why an error message might appear but the message will explain what options are available.

If VEVO returns a result that a person’s visa details could not be found, this could mean:

  • that wrong details have been entered. For example: i.e an ‘O’ has been entered instead of a zero ‘0’, date of birth entered in reverse order or passport details need to have machine readable zone number entered (10 digits instead of 9 digits)
  • that person is a New Zealand citizen currently outside Australia
  • their visa has expired.

Further information on VEVO error messages is available in the VEVO Help and Support page.

If VEVO is unavailable, an employer should record the non-citizen’s passport and/or visa details so they can check the visa details when VEVO is available. An employer should also record the date and time that VEVO was unavailable. Keeping records such as these are considered reasonable to show an employer taking steps to check visa details.

Using a contractor or labour supplier

Employers can still be held responsible for hiring illegal workers even if they use a contractor or labour supplier to source their workers. However, employers can avoid being penalised by adding a clause to their contract or by specifying in writing (an exchange of letters) that the supply of labour includes only legal workers.

Examples of contract clauses and exchange of letters are available.

Employers might want to seek independent legal advice in relation to use of the sample wording and clauses to ensure compliance with the Migration Act 1958 and other relevant law, as amended from time to time.

How often employers should check visa details

Checks should be conducted before a non-citizen commences work, before their visa expires and when the non-citizen's circumstances change.

If a non-citizen is a bridging visa holder and VEVO does not show a visa expiry date, it is good business practice to check every three months that the non-citizen still has permission to work.

Alternative employment arrangements

Individuals and companies are responsible for employing legal workers even if they are sourced from a referral agent or labour supplier.

This includes alternative employment arrangements such as bailment, contracting and subcontracting that are common in the taxi, construction, hospitality, cleaning and sex industries.

Employers should take the steps outlined in this Guide for Employers to find out how to avoid penalties.

Employment in a domestic setting

Householders who engage independent contractors in a domestic setting are not subject to penalties for employing illegal workers because of the short-term basis of the relationship (unlike employment) and the limited capacity of householders to check visa details using VEVO.

This is limited to householders only and not to organisations that provide services to householders. For example, if a plastering company engages an illegal worker and as part of that engagement performs a service in a domestic setting, we will hold the company responsible not the householder.

Penalties for employing illegal workers

​The penalties for employing illegal workers are shown in the table below.

 

Sanction category

Maximum penalty

Illegal Worker Warning Notice (IWWN)

Administrative warning

Infringement

AUD 3240 fine for individuals
AUD 16 200 fine for bodies corporate

Civil penalty

AUD 16 200 fine for individuals
AUD 81 000 fine for bodies corporate

Criminal offence

AUD 21 600 fine and/or two years imprisonment for individuals
AUD 108 000 fine for bodies corporate

Aggravated criminal offence

AUD 54 000 fine and/or five years imprisonment for individuals
AUD 270 000 fine for bodies corporate

Note: All penalties are per illegal worker.

An example of an individual would be a sole trader; a body corporate would be a company.

Privacy considerations

The Australian Information Commissioner provides the following advice for employers who are seeking to understand how their obligations in relation to employing legal workers interact with their obligations under the Privacy Act 1988.

Where an employer decides, taking a risk-based approach, to keep a copy of a document sighted, they should collect the minimum amount of personal information.

Australian employers should be aware of their obligations under the Privacy Act 1988 (the Privacy Act). The Privacy Act protects personal information handled by organisations (including health service providers and large businesses). Some small businesses, depending on the size and type of business, are also subject to the Privacy Act. Further information about handling personal information and complying with the Privacy Act, is available at the Office of the Australian Information Commissioner.

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