The 3 most common visa misconceptions


There are approximately two million temporary visitors in Australia at any given point in time. Think about the last person you hired. Did you question that person’s right to work in Australia? If you did, do you regularly review it?

Visa compliance – including for temporary, student and working holiday visas – can pose a significant risk in HR practice, yet many organisations are still unaware of their obligations and the ramifications of non-compliance.

There have been changes in the last 12-month regarding how visa workers and employers are monitored, so it’s an important time to review internal processes with regard to visas and ensure that best practice is in place.

These changes include the government’s new Immigration and Citizenship fraud reporting call centre, which serves as an avenue for anonymous whistleblowing on illegal work, along with a new data-matching initiative between the ATO and the Department of Home Affairs, which aims to crack down on foreign workers and businesses taking advantage of current migration legislation (knowingly or unknowingly).

It’s important to ensure all the boxes are ticked when it comes to employees on visas. Despite the penalties, the reputational risks are also significant. All can be easily avoided by doing a little homework and ensuring you’re not making any incorrect assumptions based on misguided or outdated information.

Common misconceptions around visa workers

 1. If I didn’t do the hiring, then it’s not my responsibility.

Wrong.

There is a requirement to establish a right to work in Australia and that responsibility falls on the employer, regardless of whether it’s paid/unpaid work or if the employee is sourced directly or via a HR contractor, labour hire or referral company.

2. Once the person is hired and proven to be compliant, that’s it.

Wrong.

Regular checks are required to ensure the employee’s visa status is still active. For businesses employing large numbers of visa workers, this is virtually impossible without some kind of automation/assistance from technology to alert HR to key review dates and issues.

3. What’s the worst that can happen – it can’t be that bad?

Wrong.

Penalties for non-compliance are expensive and can now fall directly on Company Directors. Employing illegal workers carries significant penalties, including fines for individuals of up to $63,000 and/or five years’ imprisonment and up to $315,000 for corporations per illegal worker.

If you’re unsure about risks that may apply to your situation, there are a few things you can do:

  • Contact Home Affairs and ask (or visit their website homeaffairs.gov.au). It’s far better to be upfront and proactive about managing the situation than making an error that the business will regret for years to come.

Note: The Department of Immigration and Border Protection (DIBP) was the government department that was responsible for immigration, citizenship and border control (including visa issuance). It has now been subsumed into the Department of Home Affairs, which combines its responsibilities with a number of other portfolios.

  • Contact a migration specialist. In Australia, the Migration Act legislates that it’s illegal to provide migration advice, unless the person providing such advice is registered with the Office of the Migration Agents Registration Authority (OMARA).

 Will Aldous is the co-founder and managing director of CheckWorkRights, an Australian automated visa checking system.

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2 Comments On "The 3 most common visa misconceptions"

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Bec

It would be nice to know what legal requirements companies have regarding termination of an employee once it becomes evident that an employee no longer has working rights. IE, do we need to pay out notice periods, etc

Sean

You cannot overstate the importance of being unequivocally clear that you are giving information and not advice in any circumstance where there are legislated or compliance requirements attached to giving advice.
I think that there could be more breaches out there than employers might think, and this is always a timely subject to address.
Establishing a link between the onboarding of the employee (ideally at the Nationally Coordinated Criminal History Check stage) and setting up (or using) your HRIS/Payroll system would be ideal.
Save yourself some time in rue (and potential breaches/costs).

More on HRM

The 3 most common visa misconceptions


There are approximately two million temporary visitors in Australia at any given point in time. Think about the last person you hired. Did you question that person’s right to work in Australia? If you did, do you regularly review it?

Visa compliance – including for temporary, student and working holiday visas – can pose a significant risk in HR practice, yet many organisations are still unaware of their obligations and the ramifications of non-compliance.

There have been changes in the last 12-month regarding how visa workers and employers are monitored, so it’s an important time to review internal processes with regard to visas and ensure that best practice is in place.

These changes include the government’s new Immigration and Citizenship fraud reporting call centre, which serves as an avenue for anonymous whistleblowing on illegal work, along with a new data-matching initiative between the ATO and the Department of Home Affairs, which aims to crack down on foreign workers and businesses taking advantage of current migration legislation (knowingly or unknowingly).

It’s important to ensure all the boxes are ticked when it comes to employees on visas. Despite the penalties, the reputational risks are also significant. All can be easily avoided by doing a little homework and ensuring you’re not making any incorrect assumptions based on misguided or outdated information.

Common misconceptions around visa workers

 1. If I didn’t do the hiring, then it’s not my responsibility.

Wrong.

There is a requirement to establish a right to work in Australia and that responsibility falls on the employer, regardless of whether it’s paid/unpaid work or if the employee is sourced directly or via a HR contractor, labour hire or referral company.

2. Once the person is hired and proven to be compliant, that’s it.

Wrong.

Regular checks are required to ensure the employee’s visa status is still active. For businesses employing large numbers of visa workers, this is virtually impossible without some kind of automation/assistance from technology to alert HR to key review dates and issues.

3. What’s the worst that can happen – it can’t be that bad?

Wrong.

Penalties for non-compliance are expensive and can now fall directly on Company Directors. Employing illegal workers carries significant penalties, including fines for individuals of up to $63,000 and/or five years’ imprisonment and up to $315,000 for corporations per illegal worker.

If you’re unsure about risks that may apply to your situation, there are a few things you can do:

  • Contact Home Affairs and ask (or visit their website homeaffairs.gov.au). It’s far better to be upfront and proactive about managing the situation than making an error that the business will regret for years to come.

Note: The Department of Immigration and Border Protection (DIBP) was the government department that was responsible for immigration, citizenship and border control (including visa issuance). It has now been subsumed into the Department of Home Affairs, which combines its responsibilities with a number of other portfolios.

  • Contact a migration specialist. In Australia, the Migration Act legislates that it’s illegal to provide migration advice, unless the person providing such advice is registered with the Office of the Migration Agents Registration Authority (OMARA).

 Will Aldous is the co-founder and managing director of CheckWorkRights, an Australian automated visa checking system.

Leave a reply

2 Comments On "The 3 most common visa misconceptions"

avatar
  Subscribe to receive comments  
Notify me of
Bec

It would be nice to know what legal requirements companies have regarding termination of an employee once it becomes evident that an employee no longer has working rights. IE, do we need to pay out notice periods, etc

Sean

You cannot overstate the importance of being unequivocally clear that you are giving information and not advice in any circumstance where there are legislated or compliance requirements attached to giving advice.
I think that there could be more breaches out there than employers might think, and this is always a timely subject to address.
Establishing a link between the onboarding of the employee (ideally at the Nationally Coordinated Criminal History Check stage) and setting up (or using) your HRIS/Payroll system would be ideal.
Save yourself some time in rue (and potential breaches/costs).

More on HRM