The employer obligation to check every employee’s Right to Work is one of the most overlooked compliance issues for many businesses.
After a year where we’ve seen hospitality staffing drop off sharply due to COVID restrictions, many venues are re-hiring staff as trade begins to pick up once more. This includes expanding kitchen teams, which industry-wide includes a significant amount of non-citizen staffing.
With Right to Work compliance enforced by the Department of Home Affairs – under the Migration Amendment [Reform of Employer Sanctions] Act 2013 – employers can face hefty fines for non-compliance under a no fault/strict liability system where ignorance is not a defence.
“Lax practices around Right To Work obligations are a major risk for companies, their officers and directors – who can be held personally liable under the legislation. More than that, Work Rights ‘abuses’ rank alongside underpayments in attracting media attention, thus reinforcing the reputational risk as well as the financial risk associated with hefty fines,” states Matt Paff, Managing Director of Right to Work compliance software provider vSure.
Employer Right To Work obligations
All Australian employers have the obligation to validate the legal right to work in Australia of all their staff (employees and contractors). This means, at the point of recruitment/onboarding:
- Validating Australian citizenship; or
- Validating the Work Rights of non-citizens;
If an employee or contractor claims to be an Australian citizen, the employer is required to satisfy themselves that this is true, by citing one of the following options:
- An Australian passport;
- An Australian birth certificate + photo ID;
- An Australian Citizenship Certificate + photo ID;
If the employee or contractor is a non-citizen, the employer has an obligation to validate their Work Rights according to their visa. This can be done by:
- Citing the passport or Immicard of the non-citizen; and
- Using those details to perform a Visa Entitlement Verification Online check, using the Home Affairs VEVO service or a commercial provider like vSure.
Furthermore, in the case of non-citizens, where the staff member is a temporary visa holder (rather than a permanent resident), the employer must take “reasonable steps, at reasonable times” to validate the Right To Work is maintained throughout their employment.
More important than ever before
While hospitality operators would know of these obligations, many would not know of anyone who has been prosecuted since the law was enacted seven years ago, and thus wonder why it’s so pertinent all of a sudden.
The answer is Single Touch Payroll (STP).
“Since July 2019, every Australian employer has been obligated to report pay activity to the ATO on a pay cycle basis. The ATO now has almost real-time information on who is being employed and actively paid in Australia. They also share this data under the Data Matching arrangements with other government agencies –including the Department of Home Affairs,” explains Paff.
“STP and the data sharing arrangements with the ATO, now gives the Department of Home Affairs near real-time data on who is being employed and paid in Australia. They simply cross match this data to who has the legal Right To Work to create automated audits and targeted compliance.”
To avoid both hefty fines and media scrutiny, there are two methods to ensure compliance:
- Keeping your own manual records and citing Right to Work documents for each Australian citizen you employ; plus performing manual VEVO checks at the time of recruitment and at “reasonable times” throughout the employment of non-citizens.
- Using software automation like vSure’s Enterprise Solution to integrate a seamless process into your onboarding and to provide automated monitoring.
To save time and labour, hotel groups including Australian Venue Co, Solotel, Universal Hotels, Grand Pacific Group and Boat House Group, use vSure’s software to ensure their Right to Work compliance obligations are met.