Illegal work and employer sanctions: where a recruiter’s own liability starts

The two referral contraventions

Both sections turn on the moment of referral: the worker then either is an unlawful non-citizen (s 245AE) or holds a visa with a work-related condition and “will be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred” (s 245AEA).

Neither applies if the referrer “takes reasonable steps at reasonable times before the referral to verify” the worker’s position; for both, the regulations prescribe the Department’s VEVO system as one such step (regs 5.19J and 5.19K). Each is an offence, where the fault element for the worker’s status is knowledge or recklessness, and a civil penalty provision, where the Act’s note says “It is not necessary to prove a person’s state of mind”.

Home Affairs puts the employer’s side plainly: “Employers face penalties for allowing illegal work. This includes workers that recruitment or labour hire companies source.”

The employer’s side

Sections 245AB and 245AC cover a person who allows, or continues to allow, an unlawful non-citizen to work, or a visa holder to work in breach of a work-related condition, and “work means any work, whether for reward or otherwise”. Under s 245AG(2), allowing a person to work includes, among the paragraphs listed there, employing them under a contract of service, engaging them under a contract for services other than in a domestic context, and participating in an arrangement for the performance of work by them.

Coercion, and what changed in 2024

The Migration Amendment (Strengthening Employer Compliance) Act 2024 commenced as a whole on 1 July 2024. It added ss 245AAA, 245AAB and 245AAC, which apply where a person “coerces, or exerts undue influence or undue pressure on” a worker to accept or agree to an arrangement in relation to work in Australia, and either the worker holds a visa with a work-related condition that they are in breach of solely because of doing the work under the arrangement, or would breach by doing it (s 245AAA), or the conduct leads the worker to believe that, if they refuse: for an unlawful non-citizen, there will be an adverse effect on their continued presence in Australia (s 245AAB); for a lawful non-citizen without a permanent visa, there will be an adverse effect on their status as a lawful non-citizen, or they will be unable to provide information or documents about work they have done in Australia that the Act or regulations require them to provide in connection with their visa or a visa application (s 245AAC).

An arrangement in relation to work is broad. The Act’s examples say it “includes, but is not limited to”, an arrangement for a person to accept unsafe housing, to surrender their passport, or to perform sexual favours (s 245AGA).

The referral and employer sections are older; the 2024 Act amended them under a Part headed “Aligning and increasing penalties for work-related breaches”.

Penalties, as the Act states them

The Act states penalties in units. The Commonwealth penalty unit is $364 from 1 July 2026, so the last column multiplies the civil penalty units by $364.

A fine of 360 penalty units is $131,040 at $364 a unit, and 900 is $327,600, from 1 July 2026. Home Affairs adds that “All penalties are for each worker.”

For a body corporate convicted of a Commonwealth offence, the Crimes Act lets a court impose a fine of up to “5 times the amount of the maximum pecuniary penalty” for a natural person (s 4B(3)): up to 1,800 penalty units where the Act says 360. For a civil penalty, the Migration Act caps a body corporate at 5 times the units stated (s 486R(5)(a)), so up to 1,200 where it says 240. For the civil penalty sections in the table, an infringement notice is an alternative: 48 penalty units for a natural person, 240 for a body corporate (reg 5.20A(4) and (5)).

Directors and other executive officers

A director, chief executive officer, chief financial officer or secretary can be liable where the body corporate commits the offence or contravention, and the officer knew of it or was reckless or negligent about it, could influence the body’s conduct, and “failed to take all reasonable steps” to prevent it (ss 245AJ and 245AK). The offence carries a fine of up to one-fifth of the body’s maximum; the civil penalty is 240 penalty units.

Prohibited employers

The Minister may declare a person a prohibited employer if the person is subject to a migrant worker sanction and 5 years have not passed since (s 245AYK(1)). The sanctions in ss 245AYE to 245AYJ include a bar placed on an approved work sponsor; conviction of a work-related offence, of certain offences against Divisions 270 and 271 of the Criminal Code, or of a prescribed Fair Work Act offence; certain civil penalty orders; certain Fair Work Act civil remedy orders; contravening a term of an enforceable undertaking; and failing to comply with certain compliance notices. Each section sets its own conditions. Each counts only if it came on or after 1 July 2024, “whether the relevant conduct or omission was engaged in before, on or after that commencement”.

A declaration can run for up to 5 years, up to 10 years where the sanction is an offence, and with no maximum for the offences against Criminal Code Divisions 270 and 271 that the table names (s 245AYK(8A)). While it runs, the person must not let an unlawful non-citizen, or a non-citizen without a permanent visa, begin work (s 245AYL), and the Minister must publish on the Department’s website, except in prescribed circumstances, the person’s name, ABN (if any), any other information the Minister considers reasonably necessary to identify them, the reasons and the period (s 245AYM).