21 June 2013

Ignorance is no excuse: check candidates’ work rights

Recent legislative changes introduced under The Migration Amendment to the Reform of Employer Sanctions Act 2013 are changes that all recruitment agency owners, managers and consultants should be fully across. 

The most relevant change is that The Department of Immigration (DOI) now have the capacity to issue infringement notices of $15,300 (escalating up to $76,500) without proving negligence, fault or intention to businesses employing workers in breach of visa conditions or work rights (effective 1 June 2013). 

Previously the DOI was required to prove that the employer knew or was reckless regarding the visa status of the employee or contractor when the person was engaged. 

This change applies in the following circumstances:
  • A worker without the appropriate visa, or appropriate conditions attached to their visa, is employed.
  • When a worker is referred to an employer without the the appropriate visa, or appropriate conditions attached to their visa.
  • When a person has participated in an arrangement where an illegal worker is employed.
This change effectively means that employers are 'guilty as charged' unless they have a clear paper trail demonstrating that they have followed the correct work verification processes. These processes include:
  • contracting a third party to verify the work rights of an individual; or
  • sighting and retaining documents that establish that the person is an Australian or New Zealand citizen; or
Additionally, the DOI are able to 'name and shame' non-compliant businesses as well as impose penalties on individuals within the non-compliant employer. 
Given these changes, my recommendations to all recruitment agency owners and managers is that they have a clear, non-negotiable process for validating every candidate's right to work. I recommend this process should include:
  • Identifying which candidates should be asked to provide evidence of their right to work in Australia and when in the recruitment process this is to occur (I recommend at the time of the first interview).
  • A consistent way in which visas are sighted, checked or validated, copies made and then stored within a candidate's file.
  • A consistent way in which clients are advised of a candidate's visa conditions.
  • A system of recording expiry dates on visas and setting up automatic prompts in your database well in advance of the candidate's visa expiry date.
  • A system of regular auditing to ensure your visa-checking processes are being adhered to by all staff.
I doubt any recruitment agency owner would be flippant about a (minimum) $15,300 fine, let alone the prospect of public 'naming and shaming'.

1 comment:

  1. This is a fraught issue. I know of at least one agency that has been accused of "racial profiling" in that their consultants would routinely ask candidates of Indian (or other Asian) extraction for evidence of their right to work, but would not ask white candidates, as it was assumed they were legit. In one case there was an English candidate who had overstayed their Visa, and was not picked up as a result.

    Agencies need to ask ALL candidates for evidence, even if it seems obvious...