Employing illegal worker now a criminal offence

From 19 August 2007 it will be a criminal offence to knowingly or recklessly:

• allow an illegal worker to work or
• refer an illegal worker for work with another business.

People convicted of these offences could face fines of $13,200 and two years’ imprisonment, while companies face fines of $66,000 per illegal worker.  The penalties are higher where an illegal worker is being exploited through slavery, forced labour or sexual servitude.

The new offences only apply to employers and labour suppliers who engage or refer illegal workers after the offences commence in August 2007. You do not have to check the visa entitlements of existing workers unless their contracts are renewed or extended after 19 August 2007.

Illegal workers are non-Australian citizens who are working in Australia without a visa or who are in Australia lawfully but working in breach of their visa conditions.  Work means any work including unpaid work.

The offences apply to employers, labour hire companies, employment agencies and other people who allow illegal workers to work or refer illegal workers for work. This includes taxi owners who bail or lease their taxi cabs to drivers and brothel owners who rent or lease rooms to sex workers.

The offences also apply to businesses that operate informal labour referral services such as backpacker hostels that organise harvest work for backpackers.

Only businesses in a direct legal relationship with an illegal worker, for example by being a party to an employment contract or independent contractor arrangement, can commit the offence of allowing an illegal worker to work.

This means that a head contractor at a building site would not commit the offence of allowing an illegal worker to work if a sub-contractor engages or employs an illegal worker. In this situation the subcontractor would be liable because the subcontractor would be in the contractual relationship with the illegal worker.

Similarly, if a worker is sourced through a labour hire company who remains the legal employer of the worker, the business using the services of the worker will not be liable (unless it also has a legal relationship with that worker). In this situation the labour hire company could commit an offence.

For more information about the new legislation, including frequently asked questions and recruitment scenarios visit the Department of Immigration and Citizenship website.