Labour-Hire Companies Under Scrutiny: Taskforce Cadena
June 15, 2015
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By: Jennifer Iimori and May Guo
The Australian government is continuing to show a strong focus on compliance within its migration programme having announced several efforts aimed at tackling visa fraud and worker exploitation over the last month.
Last week, Taskforce Cadena commenced work to investigate illegal practices involving foreign workers. The taskforce is a joint effort of the Department of Immigration and Border Protection, the Fair Work Ombudsman, the Australian Federal Police, the Australian Securities and Investment Commission as well as the Australia Taxation Office. Taskforce Cadena is part of a new visa enforcement strategy to be headed by the newly formed Australian Border Force which will commence operations on 1 July 2015.
The taskforce in particular will focus on labour-hire companies which have come under increased scrutiny since allegations of underpayment of Working Holiday visa holders surfaced earlier this year. While the employment of Working Holiday visa holders does not require sponsorship by the employer and the associated assessment of the proposed terms and conditions of employment, Working Holiday visa holders must be employed in line with Australian pay, conditions and workplace entitlements under the relevant federal and state legislation.
Employers utilising contractors or labour suppliers to source workers must be aware that they can be held responsible for employing illegal workers even though they have been sourced from a referral agent or labour supplier. It is therefore prudent to put steps in place to ensure all employees, including all temporary visa holder employees, are working in compliance with conditions on their visa and are employed in accordance with the terms and conditions of employment to which they are entitled. Employers utilising labour suppliers should also ensure their contract with the labour supplier specifies that the supply of labour only includes legal workers.
Penalties under the employer sanction legislation for knowingly or recklessly using illegal workers are severe. Non–fault civil penalties for allowing a person to work in breach of their visa conditions are up to AUD 15,300 for an individual and AUD 76,500 for a corporation. Penalties for criminal offences are higher.
As part of its crackdown on migration fraud and worker exploitation, the Department has shown that it will prosecute those found misusing the migration program or exploiting temporary visa holder workers. Last week, the Federal Court imposed the largest civil penalty to date for breach of sponsorship obligations with a Darwin based company which was fined AUD 335,017 for underpaying and overworking 457 visa holders.
Employers should develop strategies on how they will monitor their workforce in order to avoid any liability as a result of non-compliance. Fragomen can assist clients in a number of ways including conducting an audit of their temporary visa population to ensure the terms and conditions of employment are compliant with the relevant legislations, and assisting with the development and implementation of processes and procedures to ensure that the entire temporary visa population has the appropriate right to work at all times.
MARN 1175231 / MARN 0601236
