| Myth: It is only an employee’s responsibility to have the correct visa to work in Australia.
Truth: An employer also has an obligation to check the migration status of an employee. |
The Migration Act imposes a civil penalty on a ‘person’ who allows an ‘unlawful non-citizen’ to work in Australia. A ‘person’ can mean an employer, manager or director personally, depending on their state of knowledge.
An employer is entitled to ask a prospective employee to provide proof of their right to work in Australia by, for example, providing their passport details to enable the employer to conduct a VEVO search.
It is good practice to obtain and keep a copy of the passport details page and VEVO search on the personnel file.
If an employee cannot satisfy your requirements, then do not hire!
Some visa holders have a condition limiting their work rights. For example:
- working holiday makers who cannot work more than 6 months with the one employer
- students who may work up to 40 hours per fortnight
- an employee on a subclass 457 who may only work for their current named employer.
The law also imposes a civil penalty on a ‘person’ who allows a worker to work in breach of a visa condition limiting work.
What is VEVO?
The Department of Immigration provides a free online service to check the migration status of any individual. The employer must first create an account.
https://www.border.gov.au/Busi/Visa
Relying on VEVO is a defence if it turns out an employee does not have a right to work in Australia.
I want to hire someone from overseas to work in our business on a temporary basis
It is a three step process to hire an overseas employee on a subclass 457 visa:
- The employer applies for approval as a Standard Business Sponsor.
- The employer applies for a Nomination, identifying the occupation (which must be on an approved list of occupations prescribed by the Department) and a proposed salary and position description.
- The prospective employee applies for a subclass 457 Visa. The employee must demonstrate all relevant skills, experience and qualifications suitable for the Nominated position.
Are there other visa options for an employer?
- Yes.
An employer can hire for a short term basis, if there is a specialist, or scarce skill, where it is not possible to hire an Australian employee, usually for up to three months, sometimes up to six months.
Or, an employer can sponsor an employee for a permanent working visa, leading directly to a grant of permanent residence.
Please contact us if you have any questions or would like to discuss hiring overseas employees further.