September 18, 2021

Volume XI, Number 261

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Proposed Migration Changes

An exposure draft for the Migration Amendment (Protecting Migrant Workers) Bill 2021 (the Exposure Draft) which seeks to amend the Migration Act 1958 (Cth) (the Migration Act) was released on 26 June 2021. This Exposure Draft addresses the wage underpayment and employee exploitation issues throughout Australia. It aims to enhance the existing penalty, compliance and enforcement frameworks with the introduction of new offences and the ability for the Department of Home Affairs to prohibit non-compliant employers from employing additional visa holders. 

Employers who currently engage, or may engage, visa holders need to be aware of these proposed changes as they are significant changes to the Migration Act, including the creation of new offences and an increase in penalties.

NEW REQUIREMENTS FOR EMPLOYING VISA HOLDERS

The Exposure Draft proposes new obligations on employers who seek to employ non-citizens or visa holders. If passed, employers would be required to verify a non-citizen's permission to work by using the Visa Entitlement Verification Online (VEVO) system before prospective workers commence work.

Relevantly, employers would also be permitted to rely on the VEVO check as a defence to any allegation that they have allowed an unlawful non-citizen to work.

NEW EMPLOYER SANCTIONS

The Exposure Draft creates two new offences.

Coercing a visa holder to breach work-related conditions

The first proposed offence is committed if:

  • a person coerces or exerts undue influence or pressure on a visa holder to accept or agree to a work arrangement; 

  • that work is carried out, or is to be carried out, by the visa holder in Australia, whether for that person or someone else; and 

  • as a result of the work arrangement:

    • the visa holder breaches a work-related condition; or 

    • there are reasonable grounds to believe that, if the visa holder were to accept or agree to the arrangement, they would breach a work-related condition

Coercing a visa holder by using migration rules

The second proposed offence is committed if:

  • a person coerces or exerts undue influence or pressure on a visa holder to accept or agree to a work arrangement; and

  • that work is carried out, or is to be carried out, by the visa holder in Australia, whether for that person or someone else; and

  • the visa holder believes that, or there are reasonable grounds to believe that, they must accept or agree to the arrangement to:

    • satisfy a work-related visa requirement; or

    • avoid an adverse effect on their immigration status. 

A "work-related visa requirement" is defined as a requirement under the Migration Act to provide certain information or evidence about work the visa holder has undertaken in Australia for the purposes of their current visa or a visa application. 

Penalties for non-compliance

There would be significant penalties for contravening the new requirements. Individual persons that contravene the new requirements could be liable for fines of up to AU$53,280, while a corporation would be liable for up to AU$266,400. Further, an individual person knowingly or recklessly contravening these requirements could be liable for up to two years' imprisonment, a AU$79,920 fine, or both. A corporation could be fined up to AU$399,600. 

PROHIBITION ON CERTAIN EMPLOYERS

The Exposure Draft would allow the Department of Home Affairs to declare that an employer is prohibited from employing additional visa holders if they are:

  • subject to a bar imposed by the Minister;

  • convicted of a work-related offence;

  • the subject of a civil penalty order in relation to a contravention of certain civil remedy provisions;

  • the subject of an order for contravention of certain civil remedy provisions under the Fair Work Act 2009 (Cth). 

As an example, a contravention of a modern award would constitute a civil remedy provision under the Fair Work Act 2009 meaning the Department of Home Affairs could consider whether the employer should be declared as a prohibited employer. 

Any employers who are declared a prohibited employer would have their details published on the Department of Home Affairs' website. 

NEXT STEPS

This Exposure Draft clearly shows that one priority of the Department of Home Affairs is increased compliance and enforcement measures. We expect to see increased compliance activity from the Department of Home Affairs. 

Copyright 2021 K & L GatesNational Law Review, Volume XI, Number 216
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About this Author

Paul Hardman, KL Gates, Workplace Safety Investigations Lawyer, Labor Disputes Attorney
Partner

Mr. Hardman is a partner in the Labour Employment and Workplace Safety practice in the Brisbane office. He provides a wide range of advice and services to clients regarding employment, safety, investigations and disputes relevant to the workplace.

He is an experienced advocate and has appeared extensively in both State and Federal courts and tribunals in employment, safety and other contentious matters. He has experience across a broad range of industries including construction, water, manufacturing, agricultural, petroleum, gas and mining....

61-7-3233-1248
Isobelle Martin Attorney Labor Employment Workplace Safety KL Gates Brisbane
Lawyer

Isobelle Martin is a lawyer in Labor, Employment, and Workplace Safety (LEWS) practice in Brisbane. She joined K&L Gates as a paralegal in the LEWS team and joined the firm's graduate program. She has experience in advising on a range of employment and work health and safety matters for both public and private entities in various industries including agricultural and mining. 

Isobelle also has experience in assisting clients in complex litigation, including defending work health and safety prosecutions and acting for employers in proceedings...

61-7-3233-1213
Paralegal

Pheobe Yin is a Registered Migration Agent in our Brisbane office.

61-7-3233-1260
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