The Migration Amendment (Strengthening Employer Compliance) Act 2024, which passed in late February but will come into effect on 1 July 2024, will increase penalties for employers who exploit temporary workers and place bars on hiring non-citizens for egregious breaches. It aims to deter employers from pressuring temporary workers to enter work arrangements that will result in that worker breaching a work-related visa condition.

The Migration Act 1958 (Cth) has numerous restrictions on what people can and cannot do. These are mostly contained in Schedule 8 of the Migration Regulations 1994 (Cth), which lists visa conditions that apply to temporary visa holders. Concerning work rights, visa conditions can restrict: work entirely, such as visa condition 8101; the length of employment with any one employer, such as visa condition 8547; who a non-citizen can work for, such as visa condition 8607; and the frequency of work, such as visa condition 8105.

There is also one very important distinction outside of visa conditions that regulates work rights for non-citizens. Non-citizens who hold no visa at all, unlawful non-citizens, do not have work rights. This is clarified in subsection 235(3) of the Act which states that an unlawful non-citizen who performs work in Australia whether for reward or otherwise is committing an offence.

In migration law, work is defined extremely widely. Its definition is simply:

an activity that, in Australia, normally attracts remuneration.

This covers arrangements that involve payments of money but also any arrangement where money would be paid but is not. This effectively excludes only what may be considered volunteer work.

Breaching work-related visa conditions is a double-edged sword for the employer and the employee. The employees can see their visa cancelled and/or removed from Australia in addition to being fined for breaching work-related visa conditions or working when unlawful, while employers may be imprisoned or face civil penalties for allowing or referring a non-citizen to work.

The new provisions firstly increase penalties for existing offences with some fines increasing four-fold. But it also goes further.

Offences for arrangements in relation to work

The new legislation creates new criminal offences and civil penalties for offences relating to arrangement in relation to work, which will be defined to explicitly include non-work activities and therefore activities other than what would “normally attract remuneration.” Examples include surrendering a passport or accepting unsafe housing arrangements.

It then creates an offence to coerce or exert undue influence or pressure on, a lawful or unlawful non‑citizen to accept or agree to an arrangement in relation to work that will:

• breach a work-related condition, or

• avoid an adverse effect on their immigration status, or

• satisfy requirements to provide information or documents about work the lawful non‑citizen has done in Australia.

This captures arrangements where an employer uses an existing employment arrangement to have the non-citizen do something that would breach a visa condition or otherwise jeopardise their immigration status.

Migrant worker sanctions and prohibition to allow additional non-citizens to begin work

A new definition of migrant worker sanction is added, which are employers who:

• contravene certain civil remedy provisions of the Fair Work Act 2009 (Cth),

• are convicted of a work-related offence in the Migration Act,

• are subject to a court order against the employer in relation to the treatment of a migrant worker that contravenes certain offences,

• are barred from sponsoring migrant workers for contravening sponsorship obligations, or

• have failed to comply with a compliance notice issued under the Fair Work Act or an enforceable undertaking agreed with the Fair Work Ombudsman.

Employers that are subject to a migrant worker sanction may be declared a prohibited employer which will make it an offence for them to allow additional non‑citizens to begin work or if they have any material role in a body corporate that allows non‑citizens to begin work.

For the most serious migrant worker sanctions—offences dealing with human trafficking, slavery, slave-like conditions, or debt bondage—there is no upper limit on how long an employer will be prohibited. Otherwise, employers may be prohibited for a maximum period of 5 or 10 years depending on the offence.

The Minister may also publish prohibited employers on a website, similar to the register of sanctioned sponsors, that is on the Australian Border Force website.

Those who were a prohibited employer must provide information to the Department of Home Affairs within 28 days of hiring a non-citizen. This obligation exists for 12 months after they stop being a prohibited employer.

This legislation addresses gaps in the current law primarily relating to exploitation, but also increases existing penalties and adds bars to employers that will affect their future ability to supplement their existing workforce where needed. This heightens the need for employers to be more aware of their employers, and Australian visas in general.