In light of the recent crackdowns and media reports around Australian farms hiring illegal workers, we wanted to shed some light on the issue. Migrant workers are extremely vulnerable to exploitation. They often lack an understanding around Australian workplace legislation, or they often will put up with poor work conditions out of desperation. Many migrant workers are happy to do the work when others won’t and will do it for much cheaper rates off the books. Employers probably think, what could possibly go wrong? Well to be completely frank, pretty much everything.
Firstly, its illegal. If you have the option to underpay your workers, even if your workers insist – don’t do it! There is legislation in place, such as the National Employment Standards and The Fair Work Act, 2010 to protect workers in Australia from being underpaid. Fines from the Fair Work Ombudsman can be hefty plus the additional reputational damage it causes. We just need to look back to the recent case of the 7-eleven wage fraud scandal, in which 7-eleven were found to be taking advantage of vulnerable workers. They had to back pay $26 million to 680 workers to date, with thousands of underpayment claims still being processed.
Secondly, you need to check the work status of your employees. The Department of Immigration and Border Protection recently carried out raids on farms where unscrupulous employers were hiring people without the right to work in Australia to get cheap labour. This is not looked on very lightly by the Government and in fact there are very cumbersome fines for not ensuring that your employees have the right to work in Australia. According to the Department of Immigration and Border Protection’s website “Australian employers are expected to take a reasonable number of steps to ensure they are not employing or contracting illegal workers. Employers found to have employed a foreign national who does not have permission to work or is in breach of their visa conditions could face some hefty penalties”.
So what are the penalties for employers found guilty of hiring unlawful workers?
The penalties involved relate to both individuals and employers. Individuals can be fined up to $13,200 and face up to 2 years imprisonment. Whilst companies can be fined up to $66,000 for every unlawful employee who is found to be working within the company! Ouch.
And it does not stop there, employers who knowingly exploit workers who don’t have lawful work status in Australia are treated more seriously under Australian law. Individuals and companies who are found guilty of exploiting migrant workers either through slavery or sexual servitude, can face up to 5 years imprisonment for an individual, or a maximum of $165,000 per employee for a company.
Recently there has been a resurgence of employers using illegal workers in Australia and reasons for this are complex. In the agriculture industry the backpacker tax debacle has meant that farmers literally do not have enough labour to pick their crops and have therefore resorted to illegal migrant workers. The other industries where illegal workers are probably most commonly used is in the Hospitality sector. Since the introduction of penalties rates on weekends with Modern Awards the cost of labour for this sector has hurt many employers.
There are easy and very cost effective ways to check that your employees have the right to work in Australia and HR Gurus recommends that you ensure that all of your employees have proven to you that they have the right to work in Australia by means of a birth certificate or passport and those that don’t have been VEVO checked. This simple step confirms whether a foreign employee has any work restrictions and could save you a lot of headaches down the track.
Exploiting the vulnerable is not ok, so please make sure that you do all you can to protect your business from even coming under question by following these simple steps. Feel free to give us a call at HR Gurus 1300 959 560 if you are unsure if you are paying your workers correctly, or that you have the right processes in place and we will be more than happy to assist.
Written by Resident HR Guru Jessy Warn