All Australian businesses were already under the obligation to only employ staff authorized to work in Australia. Those businesses that are registered to sponsor overseas employees have additional obligations as well, such as a duty to provide notifications to the Department of Immigration and Border Protection and to ensure that visa holders receive market salary wages, among other record keeping obligations.

But, with the enactment of the Migration Amendment (Reform of Employer Sanctions) in 2013, it is now a strict liability offense to employ a person, allow a person to be employed, or refer a person for work, without work rights in Australia. This includes both employees and contractors. The import of this legislative change is that a lack of scienter defense has been obviated; unless employers have taken demonstrably reasonable steps to verify that a person is authorized to work, they are in breach of these laws.

To that end, Fair Work Inspectors are now empowered to check that employers are, in fact, in complete compliance. Failure to adhere to the immigration laws can result in significant penalties, including fines or even imprisonment.  Moreover, where the law is breached knowingly or recklessly the period of imprisonment for executive officers can be up to 2 years—a penalty not available in the United States.

To comply with the legislation, all employers must take certain steps to verify that they only employ people with Australian work rights. Some of the necessary steps include:

  • Maintaining records for all new and existing employees that show Australian citizenship, permanent residency, or New Zealand citizenship;
  • Maintaining records of all temporary visa holders’ rights;
  • Checking work rights of temporary visa holders using the Department of Immigration’s Visa Entitlement Verification Online System every three months for the duration of their employment.

Because managing these obligations in a large business can be a challenge, it is critical that businesses have effective systems in place as well as persons appointed to centralize and oversee the company’s compliance efforts. They must also stay actively abreast of developments or changes in the immigration laws to avoid the imposition of severe penalties or fines.

*Not admitted to the practice of law.

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Photo of Ian Macdonald Ian Macdonald

Ian R. Macdonald Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. He focuses his practice on developing, assessing and managing global mobility programs for multinational companies on a range of challenges affecting the movement of people capital

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Ian R. Macdonald Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. He focuses his practice on developing, assessing and managing global mobility programs for multinational companies on a range of challenges affecting the movement of people capital domestically and internationally, including secondment agreements, benefits transferability, local host country employment concerns and immigration.

Ian and his team work closely with companies to manage and modify, where needed, corporate immigration programs to maximize efficiency, service and regulatory compliance levels. He is experienced with the full range of business immigration sponsorship categories (visas and permanent residence), anti-discrimination rules to reduce or eliminate risk of employment litigation, employer sanction cases, and I-9 and E-Verify compliance. Ian assists clients with establishing risk-based performance standards (RBPS) and Department of Homeland Security protocol, providing risk assessment assistance to corporations subject to Chemical Facility Anti-Terrorism Standards (CFATS) and assisting clients with ITAR/Export Control compliance within the immigration context.

Ian has developed strategic relationships abroad that he utilizes when working with clients to ensure compliance with foreign registration requirements. He is experienced with analyzing complex global mobility opportunities on country-specific matters to facilitate the transfer of personnel. Ian is also experienced in counseling employers on immigration strategy as well as immigration consequences of mergers and acquisitions, reduction in workforces, and furloughs.

Prior to joining the firm, Ian worked for the United Nations, various non-governmental think tanks and corporate law firms in London, Washington, D.C., New York and Atlanta.

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