09 October 2013
There's more to employment than the Fair Work Act
Sometimes it seems that all employers ever hear about are their obligations under the Fair Work Act and the demands of the Work Health and Safety Act.
But wait, there’s more! In this bulletin, we look at some new legislative obligations for employers that you may have missed.
Migration Amendment (Reform of Employer Sanctions) Act 2013
Until now there was no risk in employing a non-citizen unless the employer knowingly hired somebody who did not have permission to work. That’s just changed. From 1st September 2013, an employer will commit an offence if they simply, even unknowingly, allow a non-citizen to work without first ensuring the non-citizen has visa approval. The onus is now on the employer to make sure the candidate has permission to work.
Employers will need to show that reasonable steps have been taken to verify that the worker is not an “unlawful non-citizen” nor “is in breach of a visa condition restricting work”. Reasonable steps may include checking the relevant online visa verification system, or viewing original documentation (such as a passport) to check citizen status or the work conditions on a visa.
Officers of employers may face criminal or civil penalties if they were aware of a contravention by the employer and failed to take all reasonable steps to prevent the contravention.
Does this mean you need to check up on all candidates? Maybe not, or at least not under this legislation. But that's not the end of the story.
It may sound like a lot of work but if you don’t check everybody how will you respond to a claim of racial discrimination? Maybe it’s time to ask all candidates to confirm their citizenship or permission to work.
Migration Amendment (Temporary Sponsored Visas) Act 2013
Claims of systematic rorting of the 457 visa scheme resulting in fears of a loss of jobs for Australian workers, resulted in amendments to the Migration Act to introduce the “labour market test”. These amendments commenced in June 2013.
Previously, employers were able to access skilled migrants in certain occupations that had been identified as being in shortage. But now, in addition, employers have to provide evidence that they have first “tested” the local labour market but without success.
That testing can include job advertisements, attending career expos, engaging recruitment firms, and documenting the failed attempts. Employers can also be called upon to explain any redundancies and retrenchments in the four months preceding the hire of a 457 candidate.
These changes mean more administrative and compliance costs associated with sponsoring workers on 457 visas, and will add time to the process of applying for a 457 visa. Whether the changes will lead to an uptick in local employment remains to be seen.
Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013
Slavery in Australia has been a criminal offence since at least 1824 but it seems the problem, or something much like it, still remains. There have been a number of cases involving forced labour and slave-like conditions found in construction, hospitality, agriculture and domestic settings. Workers are forced to work against their will, often because of threats to family, risk of deportation or because their passports are confiscated.
In response, the Commonwealth Criminal Code Act has been strengthened to prevent human trafficking and other forms of labour exploitation. The Act introduced new and expanded offences against forced labour and also extended the existing offences in relation to sexual servitude as follows:
New standalone offences against forced labour;
The extension of existing offences to include deceptive recruiting for labour or services;
Increased penalties for debt bondage (where workers are told they must work until a debt is repaid); and
A broadening of the definition of exploitation to include slavery-like practices.
These changes will help protect those who are working in wholly exploitative conditions whatever their citizenship or immigration status.
So whilst most employer obligations are set out in the Fair Work Act, other legislation often contains requirements and regulations relevant to the world of work. It pays to keep up to date.