Ignorance is no excuse: check candidates’ work rights

Recent legislative changes
introduced under The
Migration Amendment to the Reform of Employer Sanctions Act 2013
are changes that all recruitment agency owners, managers and consultants
should be fully across. 
 

The most relevant change is that
The Department of
Immigration (DOI) now have the capacity to issue infringement notices of
$15,300 (escalating up to $76,500) without proving negligence, fault
or intention  to businesses employing workers in breach of visa
conditions or work rights (effective 1 June 2013). 
 

Previously the DOI was required
to prove that the employer knew or was reckless regarding the visa
status of the employee or contractor when the person was engaged. 
 

This change applies in the following circumstances:

  • A worker without the appropriate visa, or
    appropriate conditions attached to their visa, is employed  .
  • When a worker is referred   to an employer without the
    the appropriate visa, or appropriate conditions
    attached to their visa.
  • When a person has participated   in
    an arrangement where an illegal worker is employed.
This change effectively means that employers are
‘guilty as charged’ unless they have a clear paper trail demonstrating
that they have followed the correct work verification processes.
These processes include:  

  • contracting a third party to verify the work rights of an
    individual; or
  • sighting and retaining documents that establish that the person is
    an Australian or New Zealand citizen; or
Additionally, the DOI are able to
‘name and shame’ non-compliant businesses as well as impose penalties on
individuals within the non-compliant employer. 
 

Given these changes, my
recommendations to all recruitment agency owners and managers is that
they have a clear, non-negotiable process for validating every
candidate’s right to work. I recommend this process should include:

  • Identifying which  
    candidates should be asked to provide evidence of their right to
    work in Australia and when   in the recruitment process this is
    to occur (I recommend at the time of the first interview).
  • A consistent way in which
    visas are sighted, checked or validated, copies made and then stored
    within a candidate’s file.
  • A consistent way in which
    clients are advised of a candidate’s visa conditions.
  • A system of recording expiry
    dates on visas and setting up automatic prompts in your database
    well in advance of the candidate’s visa expiry date.
  • A system of regular auditing
    to ensure your visa-checking processes are being adhered to by all
    staff.
I doubt any recruitment agency
owner would be flippant about a (minimum) $15,300 fine, let alone the
prospect of public ‘naming and shaming’.

1 Comment

  1. Aaron Dodd on 23/06/2013 at 11:39 pm

    This is a fraught issue. I know of at least one agency that has been accused of "racial profiling" in that their consultants would routinely ask candidates of Indian (or other Asian) extraction for evidence of their right to work, but would not ask white candidates, as it was assumed they were legit. In one case there was an English candidate who had overstayed their Visa, and was not picked up as a result.

    Agencies need to ask ALL candidates for evidence, even if it seems obvious…

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