This article was originally published 2 February 2017.
Employing overseas workers and the Migration Amendment (Charging for Migration Outcome) Act 2015
The Migration Amendment (Charging for Migration Outcome) Act 2015 amended the Migration Act 1958 to make it unlawful for a person to give or receive a benefit in return for a migration outcome in relation to certain skilled work visa programmes including the Subclass 457 and 186/187 programmes.
The Migration Amendment (Charging for Migration Outcome) Act 2015 punishes visa applicants for paying or offering to pay, as well as the sponsor for charging, for a migration outcome. The Migration Amendment (Charging for Migration Outcome) Act 2015 imposes a strict liability penalty with heavy fines as well as a discretionary power to cancel any visa the applicant holds, irrespective of whether such payment or offer is related to the sponsorship event.
These penalties may apply even where the person is unaware that such conduct is improper or unlawful and includes severe penalties for sponsors of migrant workers who are exploited in their employment.
The Migration Amendment (Charging for Migration Outcome) Act 2015 sets out offences and penalties including civil penalty provisions and visa cancellation for offering to provide or providing a benefit.
The term “benefit” is defined broadly under section 245AQ and includes:
- “A payment or other valuable consideration; and
- A deduction of an amount; and
- Any kind of real or personal property; and
- An advantage; and
- A service; and
- A gift”
The broad definition of “benefit” means that a visa holder’s visa may be subject to cancellation where:
- “The visa holder’s wages are deducted in return for sponsorship; or
- The visa holder is requested to forgo wages or is underpaid in return for sponsorship”
Cancellation may apply to any visa, even if it was unrelated to the sponsorship event. A visa may also be cancelled whether or not the event actually happened.
A visa holder may be fined and may also be subject to the discretionary power to have their visa/s cancelled under the Migration Act 1958.
If a benefit was asked for and received by the sponsor, the sponsor may also be liable to a significant penalty and whether or not the sponsorship-related event relates to the current visa or any previous visa that the visa holder held, and whether or not the sponsorship-related event occurred.
The prohibition on asking for or receiving a benefit may result in a maximum civil penalty is $43,200 in the case of an individual and $216,000 for a body corporate.
The criminal penalty for an offence is imprisonment for two years and/or a fine of $64,800 for an individual or $324,000 for a body corporate.
Relevantly: “It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order.”
The Migration Amendment (Charging for Migration Outcome) Act 2015 also provides for criminal and civil liability of executive officers of bodies corporate.
The Migration Amendment (Charging for Migration Outcome) Act 2015 also sets out civil penalty provisions for executive officers of bodies corporate namely where the executive officer fails to take all reasonable steps to prevent the sponsorship-related contravention or is negligent and/or reckless as to whether a sponsorship-related contravention would occur.
The civil penalty provision is $43,200 for an individual or $216,000 for a body corporate.
Civil Corporate Liability
The civil liability of executive officers of bodies corporate put an onus on a high managerial agent namely an employee, agent or officer of the company with duties and responsibilities such that their conduct may fairly be assumed to represent the company’s policy to ensure that they act in a manner which does not give rise to corporate liability.
For example, a human resources manager, or some other type of manager, who is entitled to enter into contracts on behalf of the company, is likely to have sufficient authority to change or create the company’s policy provided it could be proved that their conduct could be assumed to represent the company’s policy.
A high managerial agent such as an executive officer of a body corporate is liable to civil penalty unless reasonable steps were taken to prevent the contravention of the sponsorship-related provisions.
If a director satisfies the definition of “high managerial agent” and has the duties of those of a high managerial agent and commits an offence, this may give rise to corporate liability.
In determining whether the executive officer of a body corporate fails to take all reasonable steps to prevent the sponsorship-related contravention by the body corporate, a court must have regard to:
- what action (if any) the executive officer took towards ensuring that the company’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with the provisions; and
- what action (if any) the officer took when he or she became aware that the company was engaging in the sponsorship-related contravention.
Where an executive officer of a body corporate fails to exercise the “standard of care that a reasonable person would exercise in the circumstances”, in circumstances where there was a “high risk that the sponsorship-related contravention would occur”, this negligent conduct would merit the imposition of a pecuniary penalty.
Similarly, an executive officer of a body corporate who is “reckless” as to whether a sponsorship-related occurrence would occur namely the officer was aware of the substantial risk that the sponsorship-related offence would occur and that it was unjustifiable to take the risk merits the imposition of a pecuniary penalty.
The Migration Amendment (Charging for Migration Outcome) Act 2015 imposes strict liability civil and criminal penalties. It requires a robust corporate culture which requires compliance. Civil and/or criminal liability can be attributed to a company for the act of a high managerial agent if the company cannot prove that it exercised due power to prevent the conduct or the risk of the conduct.
Criminal Corporate Liability
Senior management needs to take all reasonable steps to prevent the sponsorship-related offence from being committed and have regard to what action (if any) was taken towards ensuring that:
- Its employees;
- Its agents; and
- Its contractors
had a reasonable knowledge and understanding of the requirements to comply with these provisions. The failure to take all reasonable steps to prevent the sponsorship-related offence being committed attracts criminal liability.
Where a company expressly, tacitly or impliedly authorised or permitted the commission of the offence, the fault elements of knowledge or recklessness can be attributed to the company so that the company may be found guilty of an employer sanctions offence.
The Criminal Code defines the way in which the fault element of an offence can be attributed to a company.
Circumstances where the elements of knowledge or recklessness can be attributed to a company may arise where there is proof of:
-
- the board of directors intentionally, knowingly or recklessly carried out conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or
- a senior manager of a company intentionally, knowingly or recklessly engaged in conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or
- a company directed, encouraged, tolerated or conducted itself so as to allow a corporate culture to exist which lead to non-compliance with the relevant provisions; or
- a corporate culture existed in circumstances where the company failed to create and maintain required compliance with the relevant provisions.
With the increasing reliance and personal liability of directors and executive officers companies need to review how they operate in regard to the recruitment of foreign workers and ensure the Migration Amendment (Charging for Migration Outcome) Act 2015 is complied with.
BDO Migration Services, an incorporated immigration legal practice can advise on all aspects of the strict liability provisions of the Migration Amendment (Charging for Migration Outcome) Act 2015 and related matters to ensure regulatory compliance.