Right to work checks should be easy!

Compliance might not be a popular topic of discussion at parties but at Gilton Valeo Lawyers it’s a topic that we debate every day. That’s why we are constantly looking at ways of integrating compliance and safety measures in each and every thing our clients do so that appropriate guard rails are in place to prevent those moments when human error can creep in.?

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What’s our advisory service?

Essentially, we’re helping employers in Australia (both big and small) ensure that their immigration processes, work checks/authorization and onboarding are in optimum shape.?

That’s the start!?

What we aim to do is identify the granular issues associated with sponsorship, visas and employment (in general), then facilitate a discussion on resolving those issues so that immigration becomes a tool that a business can use to grow and scale.

More importantly, we want our clients to view immigration as a strategic enabler that will help build, scale and revolutionise the way they approach talent and immigration.

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Why did we get into this?

We noticed that businesses were having issues with ensuring staff had a right to work throughout their employment.? More importantly, we were seeing the same systemic patterns arise and the same pain points around visa timing, sponsorship compliance, employment law, promotions and permanent residence options.

With the department clamping down on compliance and having the tools to do so, we wanted our clients to be on the front foot!? In 2013 the?Migration Act was amended?to allow the department to better address employees working in breach of visa conditions. The amendment introduced graduated tiers of sanctions and a new civil penalty regime as well as criminal offences.

Civil penalties apply on a strict liability basis - this means that businesses may face fines if they have illegal workers on staff even if they are not aware of this.

If a business is found to have an illegal worker, Home Affairs can impose civil penalties on the business of up-to $94,500 per worker in breach of their work rights.

Company Directors and officers can be personally liable if they do not put in place processes to check temporary workers.

For intentional breaches, criminal proceedings can lead to $315,000 fines imposed on the business and up to $63,000 in fines and 5 years jail for directors & officers.

Single-touch payroll automates audits

Until Single Touch Payroll (STP), it was difficult for the department to enforce obligations due to a lack of resources to perform workplace audits. This all changed with the introduction of Single Touch Payroll and the ATO’s stated Data Sharing program.

Under the program the ATO sends the STP data to 3 departments to aid compliance:

• Human Services (family payments)
• Centrelink (unemployment and disability benefits)
• Department of Home Affairs (work rights monitoring)

With STP, the department now has the data to automate work rights compliance audits of ALL Australian employers!

Avoiding the Penalties

The only way to avoid these penalties is to take ‘reasonable steps’ at ‘reasonable times’ to check visas.

Just doing a visa check before employment is not sufficient because an employee’s visa status can change after commencement of employment.

For instance a working holiday maker can work full time for 6 months with an employer, but if they change to a student visa, they can only work for 40 hours per fortnight. Unless visa checks are done at regular intervals, throughout the employee lifecycle, the employer may unwittingly be in breach of the legislation.

Employer Compliance Checklist

As a basic guide, employers should have systems which address the following:

1. Ensure employment contracts of foreign workers include a clause that provides consent for the employer to perform visa checks throughout their term of employment.
2. Recruitment processes that ensure that the Work Rights of ALL workers are checked at the time of onboarding by sighting original documents which could include a passport or birth certificate etc.
3. Regularly check Work Rights for all foreign employees and contractors.
4. Performing a visa check for all foreign workers at “reasonable times”. As some visas may cease within 28 days, monthly is considered best practice, though quarterly appears the consensus bare minimum amongst the experts.
5. Keep clear and detailed records to show a clear audit trail and evidence of compliance.

What is our Right to Work software?

Gilton Valeo Lawyers now offers as part of its advisory service a class-leading software that automates the visa checking process, giving you peace of mind that your business is fully compliant with the legislation.

Our purpose built platform enables you to onboard staff (both Australian resident and non-resident) and it automates checks as required by law.

Sound interesting, well there’s more.

What is our advisory service?

?First, we’re capturing the full picture of a company’s current state of work authorization for each employee via an audit process.

?Then we advise them on what, if anything, needs to be corrected and how.? We give them scenarios of best practice and what they could be doing.

?Finally, we help create a system by which they can ensure that future hires are fully taken care of from a compliance and work authorization standpoint.? We open up a dialogue where businesses can fully harness the global talent pool by changing the way they ‘perceive’ and ‘do’ immigration.?

Interested?

If you would like to know more, please reach out and we can talk about how Gilton Valeo can help leverage technology to meet your business' individual compliance requirements.

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Gilton Valeo can answer your questions about Australia’s immigration system

As experts in Australian immigration, Gilton Valeo can guide you in identifying the best immigration pathways to bring people over to start your Australian office, provide you with strategic consulting along the way, and connect you with our partners to make sure everything goes smoothly.

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Check out everything we offer on our website , or connect with us on Facebook , Instagram , LinkedIn , or Twitter !

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