Flying Too Close For Comfort

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Does every one of your employees have the right to work?

Can you prove it?

Immigration compliance is a hot topic in business affairs this month.

Companies that are excusing themselves on the basis that they are "too small" and 'flying under the radar' are taking a dangerous (and costly) risk.

Here's why.

Who Were Involved

Last year, the Department of Immigration and Border Patrol (DIBP) was audited by the Australian National Audit Office (ANAO).

What Happened

In December 2015, the ANAO released a report that was highly critical of the DIBP's processes. It surmised that "there [were] weaknesses in almost all aspects of the Department of Immigration and Border Protection's arrangements for managing visa holders' compliance with their visa conditions..." Notably, the Report identified that the number of visa holders working illegally is "not well understood" and that the Department does not have an "effective risk and intelligence function" to support visa compliance.

As a result, the Department has agreed to a series of recommendations, including: increasing the proportion of calls to the dob-in phone line that are answered (Recommendation No. 2) and improving its data collection and analysis activities (Recommendation No.1).

What does that mean for you?

The DIBP is likely to heavily increase the number of inspection visits from the Australian Border Force Staff.

Indeed, educational visits are already underway in Griffith where immigration officers are providing immigration information to people who have overstayed their visas.

These visits are not as serious as compliance operations, which can see significant penalties imposed for unlawful working arrangements.

According to industry experts, businesses who sponsor 457 visas will be monitored against risk factors such as industry, number of sponsored staff, revenue, payroll expenditure, salary range, position skill level and migration agent used.

This does not mean that the DIBP won't simply conduct a random inspection.

Indeed, prior to engaging with Certex International, a client of ours had one such visit.

The Partner of the company spoke to us earlier today about how "harrowing" the entire experience was. The business was given no prior notice that the migration officers would be investigating their team and were asked to provide relevant documentation on the spot. This documentation included Approval letters from Migration Agents, employee contracts, and more.

The Immigration officers went on to interview the sponsored employee and ensure that he was employed for the approved position, that he understood what this role was, and that he was working within the confines of that role. This was measured against the employee's payslips to scrutinise whether he was being properly paid for the work that he was doing.

This client only employed six staff in total.

Now, if you are keeping accurate records - like our client did- this inspection will be quick and painless.

But experts are concerned that "[e]mployers receiving a high risk rating can expect an increased amount of attention from field compliance officers, as well as difficulty in getting approval to sponsor staff."

What can you do to prepare yourself?

  1. Be thorough and meticulous when checking whether your employees have the lawful right to work in Australia. Refer to our article on immigration compliance to identify whether you are following the right steps.
  2. Keep employee records that are clear, easily accessible and, where relevant, address all aspects of your visa obligations. This includes employee payslips, letters of engagement, letters of approval from migration agents, etc.
  3. If you believe that you are ready, distinguish yourself from other companies by obtaining certification against the People and Talent Management Standard. The Immigration module has been written by migration agents and lawyers, and addresses the key legislative and regulatory provisions prescribed by the Migration Act 1958.

Immigration law can be tricky to get your head around, and expensive to get fixed. Straighten up and fly right with Certex's Immigration Compliance webinars, which is presented by our Registered Migration Agent Donna Rowley (MARA #0854268).