Immigration: It’s that-time-of-year.
It's about that time of year when you sit down and you make a checklist. You start by ticking off that you've completed your taxes (hopefully!) and that you've got all your finances in order. That you've organised superannuation for your employees, and that your insurances are up to date. You're aware about the changes to the privacy legislation? Yep. You're compliant with the (ever changing) Occupational Health and Safety standards? Yep. You've got your risk management policies in place? Yep. Yes it's that time of year to feel pretty good about yourself. The busy end-of-financial year has ended, the busy right-before-Christmas time is yet to begin, and things are going at a comfortable pace, right? Hopefully. But just before you settle into your it's-my-reward coffee, ask yourself one more pertinent, often-overlooked question: <6>Do you know whether every single one of your employees is legally entitled to work in Australia? You see, the problem with opening this question (and the reason why it's not opened often enough) is because it leads to half a dozen subsidiary questions:
- Do you employ overseas workers or workers on a temporary visa?
- Are you aware of your lawful employer obligations especially in relation to employer sanctions and engagement of migration workers?
- Can you demonstrate that every temporary visa holder in your workforce is working within their visa conditions?
- Do you understand how the National Workplace Relations system works in relation to these temporary visa workers?
- Do you have accurate internal policies, procedures and training in place to manage and ensure immigration compliance with the Migration Institute of Australia?
- Do you really know if you are in breach of Commonwealth immigration compliance law?
- Sure, you might think that you are employing lawful workers, and you believe that they should be adhering to the law, but can you prove it? The fact is, nowadays, you no longer need to be an approved immigration sponsor to be in breach of Commonwealth migration compliance law. If, at any time, you have employed (or referred to another employer) any non-citizen who held a temporary visa, you must adhere to the new changes in the Migration Act. This applies to temporary visas of any kind, either non-sponsored (eg: student, working holiday, bridging etc.) or sponsored (e.g. 457). Inspectors from the Department of Immigration and the Fair Work Ombudsman Office are visiting workplaces around Australia now. If they were to knock on your office door and find that you were employing workers who are not legally entitled to work in Australia (or who are working outside of the scope of their visa) they could issue you with a $15000 on-the-spot fine (and that's before they consider imposing sanctions, penalties or even press criminal charges). Oh dear, time to put that coffee down next to that calendar-you-said-you'll-update. So what are the changes to Migration law and regulation? Well, there have been recent amendments made by the Migration Amendment (Reform of Employer Sanctions) Act 2013 which introduces, as mentioned, more stringent penalties to employers who are in violation of this law. Previously, the Department of Immigration and Border Protection (DIBP) as it is now known ( previously referred to as DIAC) was required to prove an employer's "guilt". That is, DIBP needed to show that an employer allowed an employee/contractor to provide services (for the company or for others) when he was knowledgeable or reckless as to the worker's immigration status and working rights. Now, however, DIBP no longer have to satisfy that you acted with knowledge, recklessness or even negligence in employing or referring workers who are in breach of their visa conditions. Today, the Commonwealth has the capacity to issue infringement notices that escalate up to $76,500 for companies in breach of this law irrespective of what these companies knew or intended regarding their temporary visa worker(s). Okay, okay, so what can you do? Well, you can't sit tight and hope for the best because even your I-floss-every-day winning smile will not bowl the inspectors over if you're found to be in breach. The only safe and responsible approach is to have (or put in place) rigorous and dependable work processes and procedures and then follow these to check the legal status of all of your employees. This means keeping reliable records. This means training your HR staff and managers to know what to look out for. This means proof-reading and re-checking your dependable procedures to make sure that there aren't any gaps or mistakes. And how can you be confident of this? Well, (here's where you pick up that pen-from-that-forgotten-conference and those sticky-notes-that-your-daughter-keeps-taking-for-"school") that's where Certex Immigration Compliance steps in. We are a trusted name in audit and human resources quality assurance, one of only a few wholly Australian owned and managed certification businesses and we're accredited with JAS-ANZ, the government monitoring body, for quality, OHS and environmental management standards. We have engaged with key government immigration regulators, industry stakeholders and leading migration law advisers to develop two unique compliance assessment services. The first is Risk Assessment, which looks at personnel records to assess the status of foreign employees. The second is a full Certification Program, which assesses your policies, procedures and practices against a registered standard, as well as personnel records. It is important to note that these are third-party, independent audits which means Certex auditors do not provide consulting or compliance advice or other migration advice. But Certex Immigration Compliance auditors are qualified and experienced Registered Migration Agents who have been trained to work as lead auditors. They can (and will!) review your records against current legislation and against employer obligations, work permissions and visa conditions of foreign employees. They will assess the level of compliance and identify any gaps, areas of concern or risk and any breaches. These findings are then recorded in an audit report. If the report highlights areas which need attention you can (and should!) take this report to your own Registered Migration Agent or immigration adviser who can assist you in resolving the problems. Add immigration to your checklist and make sure your business complies. Don't let immigration be that-thing-you-wish-you-had-checked.
Dianne Gibert - BioDianne Gibert is the founder of Certex International Pty Ltd. Certex is an accredited certification body with JAS-ANZ, providing certification services in 9001 Quality Management, 4801 OHS and 14001 Environmental Management. Certex also manages the RCSA Service Delivery Standard on behalf of the RCSA. Certex has been working with key industry stakeholders to develop the first immigration compliance program in Australia. If you have any question about the Immigration Compliance Service or other certification standards relevant to the recruitment industry, please contact Dianne on (03) 9585 8241 or email firstname.lastname@example.org. You can find more information on certex.com.au.