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4. How and why should I determine if my employees can legally work?

How do I determine if my employees can legally work and what are the implications for employing illegal workers?

Australian employers have an obligation to ensure that no illegal workers are working for them. This includes paid or unpaid work, if they are sourced directly or via a contractor, labour hire or referral company, and alternative arrangements that are common in the construction, taxi, hospitality and cleaning industries

Any employee claiming to be an Australian citizen, permanent resident or New Zealand citizen must provide evidence of such before commencing employment.

Further, employers are required to take reasonable steps, at reasonable times, to confirm that a non-citizen has permission to work in Australia. Checks should be conducted before a non-citizen commences work, before their visa expires and when the non-citizen's circumstances change. If a non-citizen is a bridging visa holder, it is good business practice to check every three months that the non-citizen still has permission to work.

Australian employers could face infringements or civil penalties if they allow illegal work, even if the employer is unaware of that fact. The penalties for employing illegal workers are shown in the table below:

Penalties for employing illegal workers

Sanction category	Maximum penalty*
Illegal Worker Warning Notice (IWWN)	Administrative warning
Infringement	AUD $3,240 fine for individuals AUD $16,200 fine for bodies corporate
Civil penalty	AUD $16,200 fine for individuals AUD $81,000 fine for bodies corporate
Criminal offence	AUD $21,600 fine and/or two years imprisonment for individuals AUD $108,000 fine for bodies corporate
Aggravated criminal offence	AUD $54,000 fine and/or five years imprisonment for individuals AUD $270,000 fine for bodies corporate

*Note all penalties are per illegal worker.

An example of an individual would be a sole trader; a body corporate would be a company.

Please contact us, by completing the form on this page, for further information or to assist you in creating systems for complying with the above requirements.