Did you know that you can violate the law if you don’t abide by the provisions of referring non-citizens for work set under the Migration Act 1958?
Non-citizen workers in Australia are a significant and growing part of the workforce. Many face unique challenges and barriers to employment. Non-citizen workers include migrants, refugees, asylum-seekers, and other groups who are not Australian citizens. These workers often face discrimination, exploitation, and poor working conditions. This can have a significant impact on their health and well-being.
In this article, we will explore sections 245AE to 245AF of the Migration Act 1958. These Sections set out the rules and penalties for referring non-citizens for work in Australia.
Section 245AE: Referring an Unlawful Non-citizen for Work
Section 245AE of the Migration Act imposes a penalty of two years of imprisonment or 90 penalty units if a violation is committed in referring non-citizens for work. This provision states that a violation is committed if:
- a person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and
- a person refers another person (the prospective worker ) to a third person for work; and
- at the time of the referral, the prospective worker is an unlawful non-citizen.
However, this provision does not apply if the violator takes reasonable steps at reasonable times before the referral to verify that the prospective worker is not an unlawful non-citizen. Either of the following steps (but not limited to) should be taken by the violator:
- using a computer system prescribed by the regulations to verify that matter;
- doing any one or more things prescribed by the regulations.
Take note also that a defendant bears an evidential burden to prove that he has taken reasonable steps at reasonable times to verify the lawfulness of a non-citizen. Also, this section emphasises that it is not necessary to prove a person’s state of mind in proceedings for a civil penalty order.
Section 245AEA: Referring a Lawful Non-citizen for Work in Breach of a Work-Related Condition
The penalty for referring non-citizens for work under this section is two years imprisonment and 90 penalty units. There is a violation of this section if:
- a person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and
- such a person refers another person (the prospective worker) to a third person for work.
- at the time of the referral:
- the prospective worker is a lawful non-citizen; and
- the prospective worker holds a visa that is subject to a work-related condition; and
- the prospective worker will be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred.
Also, if the violator takes reasonable steps at reasonable times to verify that the prospective worker will not be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred, this provision will not apply.
Section 245AEB: Aggravated Offences if a Person Refers Another Person to a Third Person for Work
What act/s of the violator may be an aggravating circumstance in the offence of referring non-citizens for work under these provisions?
- If the prospective worker, who is an unlawful citizen, will be exploited in doing that work, or any other work, for the third person.
- The violator knows of, or is reckless as to, the status of the worker being an unlawful citizen and that one will be exploited for such work.
A person may also commit an offence of referring non-citizens for work under this section even if the worker is a lawful citizen and at the time of the referral:
- The worker holds a visa subject to a work-related condition.
- The worker will breach such conditions because of doing such work in relation to which he or she is referred.
An offence is committed if the person who refers a lawful non-citizen to a third person for work knows that the prospective worker will be exploited in doing the work in relation to which he or she is referred, or in doing any other work, for the third person.
The penalty that this provision imposes is imprisonment for five years.
Section 245AF: Circumstances in Which This Subdivision Does Not Apply
Section 245AF states that in order to avoid doubt in the application of the provisions about referring non-citizens for work, these sections do not apply where:
- a detainee in immigration detention voluntarily engages in an activity of a kind approved in writing by the Secretary for the purposes of this paragraph; or
- a prisoner in prison or remand centre of the Commonwealth, a State or a Territory engages in an activity as a prisoner; or
- a person engages in an activity in compliance with:
- a sentence passed, or an order made, under subsection 20AB(1) of the Crimes Act 1914 (community service orders, etc.); or
- a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention, an attendance order, or a similar sentence or order, passed or made under the law of a State or Territory.
Employment Rights of Non-citizen Workers
If you are in the business of referring non-citizens for work, you should know that all employees in the national workplace relations system receive basic minimum entitlements known as the National Employment Standards (NES).
The NES includes:
- maximum weekly hours of work (38 hours)
- requests for flexible working arrangements
- parental leave and related entitlements
- annual leave
- sick (personal)/carer’s leave, compassionate leave, and family and domestic violence leave
- community service leave
- long service leave
- public holidays
- notice of termination and redundancy pay
- the Fair Work Information Statement and Casual Employment Information Statement
- the right for casual employees to become permanent employees in some circumstances.
Consult a Migration Attorney Today
Are you a business owner who refers non-citizens for work in Australia? If so, you need to be aware of the complex and ever-changing immigration laws about referring non-citizens for work. One wrong move could put your business at risk and ruin the lives of the workers you refer.
That’s why it’s so important to hire a migration attorney. Our competent migration attorneys at JB Solicitors can help you with all aspects of the immigration process. We can help you from choosing the right visa to preparing and submitting the necessary paperwork. We can also represent you if there are any problems with your application or if you are facing deportation.
Contact us today.