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This is a Bill, not an Act. For current law, see the Acts databases.
2022-2023
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration Amendment (Strengthening
Employer Compliance) Bill 2023
No. , 2023
(Home Affairs)
A Bill for an Act to amend the
Migration Act 1958
,
and for related purposes
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
i
Contents
1
Short title ................................................................................................ 1
2
Commencement ..................................................................................... 1
3
Schedules ............................................................................................... 2
Schedule 1
--
Amendments
4
Part 1
--
New employer sanctions
4
Migration Act 1958
4
Part 2
--
Prohibited employers
8
Division 1
--
Amendments
8
Migration Act 1958
8
Division 2
--
Application provisions
29
Part 3
--
Aligning and increasing penalties for work-related
breaches
31
Migration Act 1958
31
Part 4
--
Enforceable undertakings for work-related breaches
35
Migration Act 1958
35
Part 5
--
Compliance notices for work-related breaches etc.
37
Division 1
--
Amendments
37
Migration Act 1958
37
Division 2
--
Application provision
41
Part 6
--
Other amendments
42
Division 1
--
Main amendments
42
Migration Act 1958
42
Division 2
--
Contingent amendment
44
Migration Act 1958
44
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
1
A Bill for an Act to amend the
Migration Act 1958
,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Migration Amendment (Strengthening Employer
5
Compliance) Act 2023
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
Parts 1 to 5
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 12 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
3. Schedule 1,
Part 6, Division 1
At the same time as the provisions covered
by table item 2.
4. Schedule 1,
Part 6, Division 2
The later of:
(a) immediately after the commencement of
the provisions covered by table item 3;
and
(b) immediately after the commencement of
Schedule 1 to the
Fair Work Legislation
Amendment (Protecting Worker
Entitlements) Act 2023
.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
3
concerned, and any other item in a Schedule to this Act has effect
1
according to its terms.
2
Schedule 1
Amendments
Part 1
New employer sanctions
4
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
Schedule
1--Amendments
1
Part
1--New employer sanctions
2
Migration Act 1958
3
1 Before paragraph 245AA(1)(a)
4
Insert:
5
(aa) where a person coerces, or exerts undue influence or undue
6
pressure on, a lawful non-citizen to accept or agree to a work
7
arrangement:
8
(i) involving a breach of a work-related condition applying
9
to a visa held by the lawful non-citizen; or
10
(ii) to avoid an adverse effect on the lawful non-
citizen's
11
status as a lawful non-citizen; or
12
(iii) to satisfy certain requirements to provide information or
13
documents about work the lawful non-citizen has done
14
in Australia;
15
(ab) where a person coerces, or exerts undue influence or undue
16
pressure on, an unlawful non-citizen to accept or agree to a
17
work arrangement to avoid an adverse effect on the unlawful
18
non-
citizen's continued presence in Australia;
19
2 After section 245AA
20
Insert:
21
245AAA Coercing etc. a lawful non-citizen to work in breach of
22
work-related conditions
23
(1) A person (the
first person
) contravenes this subsection if:
24
(a) the first person coerces, or exerts undue influence or undue
25
pressure on, another person (the
worker
) to accept or agree to
26
an arrangement in relation to work; and
27
(b) the worker is a lawful non-citizen; and
28
(c) the work is done, or is to be done, by the worker in Australia,
29
whether for the first person or someone else; and
30
(d) the worker holds a visa that is subject to a work-related
31
condition; and
32
Amendments
Schedule 1
New employer sanctions
Part 1
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
5
(e) either:
1
(i) the worker is in breach of the work-related condition
2
solely because of doing the work in accordance with the
3
arrangement; or
4
(ii) the worker would be in breach of the work-related
5
condition if the worker were to do the work in
6
accordance with the arrangement.
7
Offence
8
(2) A person commits an offence if the person contravenes
9
subsection (1). The physical elements of the offence are set out in
10
that subsection.
11
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
12
(3) For the purposes of subsection (2), the fault element for
13
paragraphs (1)(b), (c), (d) and (e) is knowledge or recklessness by
14
the first person.
15
Civil penalty provision
16
(4) A person is liable to a civil penalty if the person contravenes
17
subsection (1).
18
Note:
It is not necessary to prove a person's state of mind in proceedings for
19
a civil penalty order (see section 486ZF).
20
Civil penalty:
240 penalty units.
21
245AAB Coercing etc. an unlawful non-citizen to work
--
adverse
22
effect on presence in Australia
23
(1) A person (the
first person
) contravenes this subsection if:
24
(a) the first person coerces, or exerts undue influence or undue
25
pressure on, another person (the
worker
) to accept or agree to
26
an arrangement in relation to work; and
27
(b) the worker is an unlawful non-citizen; and
28
(c) the arrangement provides for the work to be done by the
29
worker in Australia, whether for the first person or someone
30
else; and
31
Schedule 1
Amendments
Part 1
New employer sanctions
6
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
(d)
the first person's conduct mentioned in
paragraph (a) results
1
in the worker believing that, if the worker does not accept or
2
agree to the arrangement, there will be an adverse effect on
3
the worker's continued presence in Australia
.
4
Offence
5
(2) A person commits an offence if the person contravenes
6
subsection (1). The physical elements of the offence are set out in
7
that subsection.
8
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
9
(3) For the purposes of subsection (2), the fault element for
10
paragraphs (1)(b), (c) and (d) is knowledge or recklessness by the
11
first person.
12
Civil penalty provision
13
(4) A person is liable to a civil penalty if the person contravenes
14
subsection (1).
15
Note:
It is not necessary to prove a person's state of mind in proceedings for
16
a civil penalty order (see section 486ZF).
17
Civil penalty:
240 penalty units.
18
245AAC Coercing etc. a lawful non-citizen to work
--
adverse effect
19
on status etc.
20
(1) A person (the
first person
) contravenes this subsection if:
21
(a) the first person coerces, or exerts undue influence or undue
22
pressure on, another person (the
worker
) to accept or agree to
23
an arrangement in relation to work; and
24
(b) the worker is a lawful non-citizen (other than a holder of a
25
permanent visa); and
26
(c) the arrangement provides for the work to be done by the
27
worker in Australia, whether for the first person or someone
28
else; and
29
(d)
the first person's conduct mentioned in
paragraph (a) results
30
in the worker believing that, if the worker does not accept or
31
agree to the arrangement:
32
Amendments
Schedule 1
New employer sanctions
Part 1
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
7
(i)
there will be an adverse effect on the worker's status as
1
a lawful non-citizen; or
2
(ii) the worker will be unable to provide information or
3
documents about work the worker has done in Australia
4
that the worker is required, under this Act or the
5
regulations, to provide in connection with a visa held by
6
the worker or an application for a visa by the worker.
7
Offence
8
(2) A person commits an offence if the person contravenes
9
subsection (1). The physical elements of the offence are set out in
10
that subsection.
11
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
12
(3) For the purposes of subsection (2), the fault element for
13
paragraphs (1)(b), (c) and (d) is knowledge or recklessness by the
14
first person.
15
Civil penalty provision
16
(4) A person is liable to a civil penalty if the person contravenes
17
subsection (1).
18
Note:
It is not necessary to prove a person's state of mind in proceedings for
19
a civil penalty order (see section 486ZF).
20
Civil penalty:
240 penalty units.
21
Schedule 1
Amendments
Part 2
Prohibited employers
8
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
Part
2--Prohibited employers
1
Division 1
--
Amendments
2
Migration Act 1958
3
3 Subsection 5(1)
4
Insert:
5
relevant workplace law
has the meaning given by
6
subsection 245APA(2).
7
work-related offence
means:
8
(a) an offence against Subdivision C or E of Division 12 of
9
Part 2; or
10
(b) an offence against section 6 of the
Crimes Act 1914
that
11
relates to an offence against one of those Subdivisions; or
12
(c) an ancillary offence (within the meaning of the
Criminal
13
Code
) that is, or relates to, an offence against one of those
14
Subdivisions.
15
work-related provision
means a civil penalty provision in
16
Subdivision C, E or F of Division 12 of Part 2.
17
4 Paragraph 140X(aa)
18
Omit "or D", substitute ", D
, E or F
"
.
19
5 In the appropriate position in Division 12 of Part 2
20
Insert:
21
Subdivision E
--
Prohibited employers
22
245AYA Overview
23
(1) This Subdivision provides for the Minister to declare a person to be
24
a prohibited employer for a specified period if:
25
(a) the person is subject to a migrant worker sanction; and
26
Amendments
Schedule 1
Prohibited employers
Part 2
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
9
(b) no more than 5 years have passed since the person became
1
subject to that sanction.
2
(2) Sections 245AYE to 245AYJ set out when a person is subject to a
3
migrant worker sanction.
4
(3) While a declaration is in effect, a prohibited employer must not:
5
(a) allow certain additional non-citizens to begin work; or
6
(b) have a material role in a decision made by a body corporate
7
or other body to allow certain additional non-citizens to
8
begin work.
9
(4) After a person stops being a prohibited employer, the person must
10
give the Department specified information about certain lawful
11
non-citizens who the person allows to begin to work in the 12
12
month period after so ceasing.
13
245AYB Definitions
14
In this Subdivision:
15
ABN
has the same meaning as in the
A New Tax System
16
(Australian Business Number) Act 1999
.
17
allows
a non-citizen to begin work
has the meaning given by
18
section 245AYC.
19
Fair Work Ombudsman
means the Fair Work Ombudsman
20
provided for by section 681 of the
Fair Work Act 2009
.
21
FW order
means an order under Division 2 of Part 4-1 of the
Fair
22
Work Act 2009
.
23
inspector
has the same meaning as in the
Fair Work Act 2009
.
24
involved in
has the same meaning as in the
Fair Work Act 2009
.
25
migrant worker sanction
has the meaning given by
26
sections 245AYE to 245AYJ.
27
prohibited employer
has the meaning given by section 245AYD.
28
relevant fair work provision
means any of the following
29
provisions of the
Fair Work Act 2009
:
30
Schedule 1
Amendments
Part 2
Prohibited employers
10
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
(a) section 293 (contravening a national minimum wage order);
1
(b) section 305 (contravening an equal remuneration order);
2
(c) subsection 323(1) or (3) (method and frequency of payment);
3
(d) subsection 325(1) or (1A) (unreasonable requirements to
4
spend or pay amount);
5
(e) subsection 328(1), (2) or (3) (employer obligations in relation
6
to guarantee of annual earnings);
7
(f) section 333D (prohibition on pay secrecy terms);
8
(g) section 344 (undue influence or pressure);
9
(h) subsection 351(1) (discrimination);
10
(i) section 352 (temporary absence because of illness or injury);
11
(j) subsection 357(1) (misrepresenting employment as
12
independent contracting arrangement);
13
(k) section 358 (dismissing to engage as independent contractor);
14
(l) section 359 (misrepresentation to engage as independent
15
contractor);
16
(m) section 745 (contravening the extended parental leave
17
provisions);
18
(n) section 760 (contravening the extended notice of termination
19
provisions);
20
(o) subsection 772(1) (employment not to be terminated on
21
certain grounds);
22
(p) subsection 785(4) (employer to notify Centrelink of certain
23
proposed terminations);
24
(q) a civil remedy provision (within the meaning of that Act)
25
prescribed by the regulations.
26
remuneration-related matter
in relation to an employee means any
27
of the following:
28
(a) the underpayment of wages, or other monetary entitlements,
29
of the employee;
30
(b) the unreasonable deduction of amounts from amounts owed
31
to the employee;
32
(c) the placing of unreasonable requirements on the employee to
33
spend or pay amounts paid, or payable, to the employee;
34
(d) the method or frequency of amounts payable to the employee
35
in relation to the performance of work.
36
Amendments
Schedule 1
Prohibited employers
Part 2
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
11
work
means any work, whether for reward or otherwise.
1
245AYC Meaning of
allows a non-citizen to begin work
2
(1) A person
allows
a non-citizen to begin work
at
a particular time if,
3
and only if:
4
(a) the person employs the non-citizen by entering into a
5
contract of service at that time; or
6
(b) the person engages the non-citizen by entering into a contract
7
for services at that time; or
8
(c) the person begins at that time to participate in an
9
arrangement, or any arrangement included in a series of
10
arrangements, for the performance of work by the non-citizen
11
for:
12
(i) the person; or
13
(ii) another participant in the arrangement or any such
14
arrangement; or
15
(d) the person enters into a contract at that time to bail or license
16
a chattel to the non-citizen or another person with the
17
intention that the non-citizen will use the chattel to perform a
18
transportation service; or
19
(e) the person enters into a contract at that time to lease or
20
license premises, or a space within premises, to the
21
non-citizen or another person with the intention that the
22
non-citizen will use the premises or space to perform sexual
23
services (within the meaning of the
Criminal Code
); or
24
(f) the prescribed circumstances exist at that time.
25
Note:
Other parts of speech and grammatical forms of "
allows a non-citizen
26
to begin work
" (for example, "
the non-citizen is allowed to begin
27
work
") have a corresponding meaning (see sectio
n 18A of the
Acts
28
Interpretation Act 1901
).
29
(2) In paragraph (1)(e):
30
premises
means:
31
(a) an area of land or any other place, whether or not it is
32
enclosed or built on; or
33
(b) a building or other structure; or
34
(c) a vehicle or vessel.
35
Schedule 1
Amendments
Part 2
Prohibited employers
12
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
245AYD Meaning of
prohibited employer
1
A person is a
prohibited employer
at a particular time if:
2
(a) a declaration in relation to the person has been made under
3
subsection 245AYK(1); and
4
(b) the declaration is in effect at that time.
5
245AYE When a person is subject to a migrant worker sanction
--
6
bar placed on approved work sponsor etc.
7
Bar placed on approved work sponsor
8
(1) A person is subject to a
migrant worker sanction
if:
9
(a) the person is an approved work sponsor; and
10
(b) a bar is placed on the person under paragraph 140M(1)(c) or
11
(d); and
12
(c) either:
13
(i) the person has not requested the Minister to waive the
14
bar in accordance with any regulations made for the
15
purposes of section 140P; or
16
(ii) if the person has made such a request
--
the Minister has
17
not waived the bar under subsection 140O(2).
18
Failure to comply with compliance notice
19
(2) A person is subject to a
migrant worker sanction
if:
20
(a) the person is or was an approved work sponsor; and
21
(b) a civil penalty order is made against the person in relation to
22
a contravention of subsection 140RB(5).
23
245AYF When a person is subject to a migrant worker sanction
--
24
conviction of work-related offence etc.
25
Conviction of work-related offence
26
(1) A person is subject to a
migrant worker sanction
if the person is
27
convicted of a work-related offence.
28
Amendments
Schedule 1
Prohibited employers
Part 2
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
13
Conviction of certain offences against humanity
1
(2) A person is subject to a
migrant worker sanction
if the Minister is
2
satisfied that:
3
(a) the person has been convicted of an offence against the
4
following provisions of the
Criminal Code
:
5
(i) Division 270 (other than section 270.7B or
6
section 270.8 to the extent an offence against that
7
section relates to an offence against section 270.7B);
8
(ii) Division 271 (other than Subdivision BA); and
9
(b) the person engaged in the relevant conduct in Australia; and
10
(c) the offence related, wholly or partly, to another person who,
11
at the time the relevant conduct was engaged in, was a
12
non-citizen (other than the holder of a permanent visa).
13
Conviction of certain offences against the Fair Work Act 2009 etc.
14
(3) A person is subject to a
migrant worker sanction
if the Minister is
15
satisfied that:
16
(a) the person has been convicted of an offence against the
Fair
17
Work Act 2009
, or a relevant workplace law, that is an
18
offence of a kind prescribed by the regulations; and
19
(b) the offence related, wholly or partly, to a prescribed person
20
who, at the time the relevant conduct was engaged in, was a
21
non-citizen (other than the holder of a permanent visa); and
22
(c) any circumstances prescribed by the regulations apply in
23
relation to the offence.
24
245AYG When a person is subject to a migrant worker sanction
--
25
contravention of certain civil penalty provisions etc.
26
Contravention of certain civil penalty provisions of this Act
27
(1) A person is subject to a
migrant worker sanction
if:
28
(a) a civil penalty order is made against the person in relation to
29
the contravention of a work-related provision; or
30
(b) all of the following apply:
31
(i) a civil penalty order is made against the person in
32
relation to a contravention of another civil penalty
33
provision prescribed by the regulations;
34
Schedule 1
Amendments
Part 2
Prohibited employers
14
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
(ii) the contravention relates, wholly or partly, to an
1
employee of the person;
2
(iii) at the time of the contravention, the employee was a
3
non-citizen (other than the holder of a permanent visa).
4
Contravention of certain provisions of relevant workplace law
5
(2) A person is subject to a
migrant worker sanction
if the Minister is
6
satisfied that:
7
(a) a court has made an order under a relevant workplace law
8
that the person pay a pecuniary penalty for a contravention of
9
a provision of that law; and
10
(b) the provision is prescribed by the regulations; and
11
(c) the order was not made in criminal proceedings; and
12
(d) the contravention related, wholly or partly, to a prescribed
13
person who, at the time of the contravention, was a
14
non-citizen (other than the holder of a permanent visa); and
15
(e) any circumstances prescribed by the regulations apply in
16
relation to the contravention of the provision.
17
245AYH When a person is subject to a migrant worker sanction
--
18
contravention of certain civil remedy provisions of the
19
Fair Work Act 2009
20
Contravention of relevant fair work provision
21
(1) A person is subject to a
migrant worker sanction
if the Minister is
22
satisfied that:
23
(a) a FW order has been made against the person in relation to a
24
contravention of a relevant fair work provision; and
25
(b) the FW order was not made on the basis that the person was a
26
person who was involved in the contravention; and
27
(c) both of the following apply:
28
(i) the contravention related, wholly or partly, to an
29
employee, prospective employee or former employee of
30
the person;
31
(ii) at the time of the contravention, the employee,
32
prospective employee or former employee was a
33
non-citizen (other than the holder of a permanent visa).
34
Amendments
Schedule 1
Prohibited employers
Part 2
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
15
Contravention relating to remuneration-related matter
1
(2) A person is subject to a
migrant worker sanction
if the Minister is
2
satisfied that:
3
(a) a FW order has been made against the person in relation to a
4
contravention of any of the following provisions of the
Fair
5
Work Act 2009
:
6
(i) section 44 (contravening the National Employment
7
Standards);
8
(ii) section 45 (contravening a modern award);
9
(iii) section 50 (contravening an enterprise agreement);
10
(iv) section 280 (contravening a workplace determination);
11
(v) subsection 535(1), (2) or (4) (employer obligations in
12
relation to employee records);
13
(vi) subsection 536(1), (2) or (3) (employer obligations in
14
relation to pay slips);
15
(vii) a civil remedy provision (within the meaning of that
16
Act) prescribed by the regulations; and
17
(b) the FW order was not made on the basis that the person was a
18
person who was involved in the contravention; and
19
(c) both of the following apply:
20
(i) the contravention related, wholly or partly, to an
21
employee of the person;
22
(ii) at the time of the contravention, the employee was a
23
non-citizen (other than the holder of a permanent visa);
24
and
25
(d) the contravention related, wholly or partly, to one or more
26
remuneration-related matters in relation to the employee.
27
Contravention relating to the advertisement of rates of pay
28
(3) A person is subject to a
migrant worker sanction
if the Minister is
29
satisfied that:
30
(a) both of the following apply:
31
(i) a FW order has been made against the person in relation
32
to a contravention of subsection 536AA(1) or (2) of the
33
Fair Work Act 2009
(employer obligations in relation to
34
advertising rates of pay);
35
Schedule 1
Amendments
Part 2
Prohibited employers
16
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
(ii) the FW order was not made on the basis that the person
1
was a person who was involved in the contravention; or
2
(b) all of the following apply:
3
(i) a FW order has been made against the person in relation
4
to a contravention of subsection 716(5) of that Act
5
(failure to comply with compliance notice);
6
(ii) the FW order was not made on the basis that the person
7
was a person who was involved in the contravention;
8
(iii) the relevant compliance notice given under section 716
9
of that Act related to a contravention of
10
subsection 536AA(1) or (2) of that Act (employer
11
obligations in relation to advertising rates of pay).
12
Contravention relating to compliance notices
13
(4) A person is subject to a
migrant worker sanction
if the Minister is
14
satisfied that:
15
(a) a FW order has been made against the person in relation to a
16
contravention of subsection 716(5) of the
Fair Work Act
17
2009
(failure to comply with compliance notice); and
18
(b) the FW order was not made on the basis that the person was a
19
person who was involved in the contravention; and
20
(c) the relevant compliance notice given under section 716 of
21
that Act related to a contravention of:
22
(i) a provision of the National Employment Standards
23
(within the meaning of that Act); or
24
(ii) a term of a modern award (within the meaning of that
25
Act); or
26
(iii) a term of an enterprise agreement (within the meaning
27
of that Act); or
28
(iv) a term of a workplace determination (within the
29
meaning of that Act); or
30
(v) a term of a national minimum wage order (within the
31
meaning of that Act); or
32
(vi) a term of an equal remuneration order (within the
33
meaning of that Act); and
34
(d) both of the following apply:
35
(i) the contravention related, wholly or partly, to an
36
employee of the person;
37
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Schedule 1
Prohibited employers
Part 2
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
17
(ii) at the time of the contravention, the employee was a
1
non-citizen (other than the holder of a permanent visa);
2
and
3
(e) in the case of a contravention of a provision or term
4
mentioned in subparagraphs (c)(i) to (iv) of this subsection
--
5
the contravention related, wholly or partly, to one or more
6
remuneration-related matters in relation to the employee.
7
Other contraventions
8
(5) A person is subject to a
migrant worker sanction
if the Minister is
9
satisfied that:
10
(a) a FW order has been made against the person in relation to a
11
contravention of a civil remedy provision (within the
12
meaning of the
Fair Work Act 2009
); and
13
(b) the FW order was not made on the basis that the person was a
14
person who was involved in the contravention; and
15
(c) the provision is prescribed by the regulations; and
16
(d) any circumstances prescribed by the regulations apply in
17
relation to the contravention of the provision.
18
(6) A person is subject to a
migrant worker sanction
if the Minister is
19
satisfied that:
20
(a) a FW order has been made against the person in relation to a
21
contravention of a civil remedy provision (within the
22
meaning of the
Fair Work Act 2009
); and
23
(b) the FW order was made on the basis that the person was a
24
person who was involved in the contravention; and
25
(c) the provision is prescribed by the regulations; and
26
(d) any circumstances prescribed by the regulations apply in
27
relation to the contravention of the provision.
28
245AYI When a person is subject to a migrant worker sanction
--
29
contravention of term of enforceable undertaking etc.
30
Undertaking in relation to contravention of relevant fair work
31
provision
32
(1) A person is subject to a
migrant worker sanction
if the Minister is
33
satisfied that:
34
Schedule 1
Amendments
Part 2
Prohibited employers
18
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
(a) the Fair Work Ombudsman has accepted an undertaking
1
given by the person under section 715 of the
Fair Work Act
2
2009
in relation to a contravention of a relevant fair work
3
provision; and
4
(b) a court has made one or more orders under subsection 715(7)
5
of that Act in relation to the undertaking; and
6
(c) both of the following apply:
7
(i) the contravention related, wholly or partly, to an
8
employee, prospective employee or former employee of
9
the person;
10
(ii) at the time of the contravention, the employee,
11
prospective employee or former employee was a
12
non-citizen (other than the holder of a permanent visa).
13
(2) A person is subject to a
migrant worker sanction
if the Minister is
14
satisfied that:
15
(a) the Fair Work Ombudsman has accepted an undertaking
16
given by the person under section 715 of the
Fair Work Act
17
2009
in relation to a contravention of a relevant fair work
18
provision; and
19
(b) all of the following apply:
20
(i) the undertaking has not been withdrawn;
21
(ii) an application for an order under subsection 715(7) of
22
that Act in relation to the undertaking has not been
23
made;
24
(iii) a court has not made one or more orders under that
25
subsection in relation to the undertaking; and
26
(c) both of the following apply:
27
(i) the contravention related, wholly or partly, to an
28
employee, prospective employee or former employee of
29
the person;
30
(ii) at the time of the contravention, the employee,
31
prospective employee or former employee was a
32
non-citizen (other than the holder of a permanent visa);
33
and
34
(d) the person has contravened a term of the undertaking.
35
Amendments
Schedule 1
Prohibited employers
Part 2
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
19
Undertaking in relation to contravention relating to
1
remuneration-related matter
2
(3) A person is subject to a
migrant worker sanction
if the Minister is
3
satisfied that:
4
(a) the Fair Work Ombudsman has accepted an undertaking
5
given by the person under section 715 of the
Fair Work Act
6
2009
in relation to a contravention of any of the following
7
provisions of that Act:
8
(i) section 44 (contravening the National Employment
9
Standards);
10
(ii) section 45 (contravening a modern award);
11
(iii) section 50 (contravening an enterprise agreement);
12
(iv) section 280 (contravening a workplace determination);
13
(v) subsection 535(1), (2) or (4) (employer obligations in
14
relation to employee records);
15
(vi) subsection 536(1), (2) or (3) (employer obligations in
16
relation to pay slips);
17
(vii) a civil remedy provision (within the meaning of that
18
Act) prescribed by the regulations; and
19
(b) a court has made one or more orders under subsection 715(7)
20
of that Act in relation to the undertaking; and
21
(c) both of the following apply:
22
(i) the contravention related, wholly or partly, to an
23
employee of the person;
24
(ii) at the time of the contravention, the employee was a
25
non-citizen (other than the holder of a permanent visa);
26
and
27
(d) in the case of a contravention of a provision mentioned in
28
subparagraphs (a)(i) to (iv) of this subsection
--
the
29
contravention related, wholly or partly, to one or more
30
remuneration-related matters in relation to the employee.
31
(4) A person is subject to a
migrant worker sanction
if the Minister is
32
satisfied that:
33
(a) the Fair Work Ombudsman has accepted an undertaking
34
given by the person under section 715 of the
Fair Work Act
35
2009
in relation to a contravention of any of the following
36
provisions of that Act:
37
Schedule 1
Amendments
Part 2
Prohibited employers
20
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
(i) section 44 (contravening the National Employment
1
Standards);
2
(ii) section 45 (contravening a modern award);
3
(iii) section 50 (contravening an enterprise agreement);
4
(iv) section 280 (contravening a workplace determination);
5
(v) subsection 535(1), (2) or (4) (employer obligations in
6
relation to employee records);
7
(vi) subsection 536(1), (2) or (3) (employer obligations in
8
relation to pay slips);
9
(vii) a civil remedy provision (within the meaning of that
10
Act) prescribed by the regulations; and
11
(b) all of the following apply:
12
(i) the undertaking has not been withdrawn;
13
(ii) an application for an order under subsection 715(7) of
14
that Act in relation to the undertaking has not been
15
made;
16
(iii) a court has not made one or more orders under that
17
subsection in relation to the undertaking; and
18
(c) both of the following apply:
19
(i) the contravention related, wholly or partly, to an
20
employee of the person;
21
(ii) at the time of the contravention, the employee was a
22
non-citizen (other than the holder of a permanent visa);
23
and
24
(d) in the case of a contravention of a provision mentioned in
25
subparagraphs (a)(i) to (iv) of this subsection
--
the
26
contravention related, wholly or partly, to one or more
27
remuneration-related matters in relation to the employee; and
28
(e) the person has contravened a term of the undertaking.
29
Undertaking in relation to contravention relating to advertisement
30
of rates of pay
31
(5) A person is subject to a
migrant worker sanction
if the Minister is
32
satisfied that:
33
(a) the Fair Work Ombudsman has accepted an undertaking
34
given by the person under section 715 of the
Fair Work Act
35
2009
in relation to a contravention of subsection 536AA(1)
36
Amendments
Schedule 1
Prohibited employers
Part 2
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
21
or (2) of that Act (employer obligations in relation to
1
advertising rates of pay); and
2
(b) a court has made one or more orders under subsection 715(7)
3
of that Act in relation to the undertaking.
4
(6) A person is subject to a
migrant worker sanction
if the Minister is
5
satisfied that:
6
(a) the Fair Work Ombudsman has accepted an undertaking
7
given by the person under section 715 of the
Fair Work Act
8
2009
in relation to a contravention of subsection 536AA(1)
9
or (2) of that Act (employer obligations in relation to
10
advertising rates of pay); and
11
(b) all of the following apply:
12
(i) the undertaking has not been withdrawn;
13
(ii) an application for an order under subsection 715(7) of
14
that Act in relation to the undertaking has not been
15
made;
16
(iii) a court has not made one or more orders under that
17
subsection in relation to the undertaking; and
18
(c) the person has contravened a term of the undertaking.
19
Other undertakings
20
(7) A person is subject to a
migrant worker sanction
if the Minister is
21
satisfied that:
22
(a) the Fair Work Ombudsman has accepted an undertaking
23
given by the person under section 715 of the
Fair Work Act
24
2009
in relation to a contravention of a civil remedy
25
provision (within the meaning of that Act); and
26
(b) the provision is prescribed by the regulations; and
27
(c) any circumstances prescribed by the regulations apply in
28
relation to the undertaking.
29
Schedule 1
Amendments
Part 2
Prohibited employers
22
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
245AYJ When a person is subject to a migrant worker sanction
--
1
failure to comply with certain compliance notices
2
Compliance notice in relation to contravention relating to
3
remuneration-related matter
4
(1) A person is subject to a
migrant worker sanction
if the Minister is
5
satisfied that:
6
(a) an inspector has given the person a compliance notice under
7
subsection 716(2) of the
Fair Work Act 2009
in relation to a
8
contravention of:
9
(i) a provision of the National Employment Standards
10
(within the meaning of that Act); or
11
(ii) a term of a modern award (within the meaning of that
12
Act); or
13
(iii) a term of an enterprise agreement (within the meaning
14
of that Act); or
15
(iv) a term of a workplace determination (within the
16
meaning of that Act); or
17
(v) a term of a national minimum wage order (within the
18
meaning of that Act); or
19
(vi) a term of an equal remuneration order (within the
20
meaning of that Act); and
21
(b) a court has confirmed the compliance notice after reviewing
22
it under subsection 717(1) of that Act; and
23
(c) both of the following apply:
24
(i) the contravention related, wholly or partly, to an
25
employee of the person;
26
(ii) at the time of the contravention, the employee was a
27
non-citizen (other than the holder of a permanent visa);
28
and
29
(d) in the case of a contravention of a provision or term
30
mentioned in subparagraphs (a)(i) to (iv) of this subsection
--
31
the contravention related, wholly or partly, to one or more
32
remuneration-related matters in relation to the employee; and
33
(e) the person has failed to comply with the compliance notice
34
and the person does not have a reasonable excuse for so
35
failing.
36
Amendments
Schedule 1
Prohibited employers
Part 2
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
23
(2) A person is subject to a
migrant worker sanction
if the Minister is
1
satisfied that:
2
(a) an inspector has given the person a compliance notice under
3
subsection 716(2) of the
Fair Work Act 2009
in relation to a
4
contravention of:
5
(i) a provision of the National Employment Standards
6
(within the meaning of that Act); or
7
(ii) a term of a modern award (within the meaning of that
8
Act); or
9
(iii) a term of an enterprise agreement (within the meaning
10
of that Act); or
11
(iv) a term of a workplace determination (within the
12
meaning of that Act); or
13
(v) a term of a national minimum wage order (within the
14
meaning of that Act); or
15
(vi) a term of an equal remuneration order (within the
16
meaning of that Act); and
17
(b) all of the following apply:
18
(i) the compliance notice has not been withdrawn;
19
(ii) the person has not made an application under
20
subsection 717(1) of that Act in relation to the
21
compliance notice;
22
(iii) a court has not cancelled the compliance notice after
23
reviewing it under that subsection; and
24
(c) both of the following apply:
25
(i) the contravention related, wholly or partly, to an
26
employee of the person;
27
(ii) at the time of the contravention, the employee was a
28
non-citizen (other than the holder of a permanent visa);
29
and
30
(d) in the case of a contravention of a provision or term
31
mentioned in subparagraphs (a)(i) to (iv) of this subsection
--
32
the contravention related, wholly or partly, to one or more
33
remuneration-related matters in relation to the employee; and
34
(e) the person has failed to comply with the compliance notice
35
and the person does not have a reasonable excuse for so
36
failing.
37
Schedule 1
Amendments
Part 2
Prohibited employers
24
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
Compliance notice in relation to contravention relating to
1
advertisement of rates of pay
2
(3) A person is subject to a
migrant worker sanction
if the Minister is
3
satisfied that:
4
(a) an inspector has given the person a compliance notice under
5
subsection 716(2) of the
Fair Work Act 2009
in relation to a
6
contravention of subsection 536AA(1) or (2) of that Act
7
(employer obligations in relation to advertising rates of pay);
8
and
9
(b) a court has confirmed the compliance notice after reviewing
10
it under subsection 717(1) of that Act; and
11
(c) the person has failed to comply with the compliance notice
12
and the person does not have a reasonable excuse for so
13
failing.
14
(4) A person is subject to a
migrant worker sanction
if the Minister is
15
satisfied that:
16
(a) an inspector has given the person a compliance notice under
17
subsection 716(2) of the
Fair Work Act 2009
in relation to a
18
contravention of subsection 536AA(1) or (2) of that Act
19
(employer obligations in relation to advertising rates of pay);
20
and
21
(b) all of the following apply:
22
(i) the compliance notice has not been withdrawn;
23
(ii) the person has not made an application under
24
subsection 717(1) of that Act in relation to the
25
compliance notice;
26
(iii) a court has not cancelled the compliance notice after
27
reviewing it under that subsection; and
28
(c) the person has failed to comply with the compliance notice
29
and the person does not have a reasonable excuse for so
30
failing.
31
245AYK Declaration of person as prohibited employer
32
(1) The Minister may, in writing, declare a person to be a prohibited
33
employer if:
34
(a) the person is subject to a migrant worker sanction under a
35
particular provision of this Subdivision; and
36
Amendments
Schedule 1
Prohibited employers
Part 2
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
25
(b) the period of 5 years starting on the day the person became
1
subject to a migrant worker sanction under that provision has
2
not ended.
3
Note:
A person may be subject to a migrant worker sanction under more
4
than one provision of this Subdivision or subject to a migrant worker
5
sanction multiple times under a single such provision. There is a
6
separate 5 year period each time the person becomes subject to a
7
migrant worker sanction.
8
(2) A declaration made under subsection (1) is not a legislative
9
instrument.
10
Note:
A declaration made under subsection (1) can be varied or revoked
11
under subsection 33(3) of the
Acts Interpretation Act 1901
.
12
Process before making declaration
13
(3) Before the Minister declares a person to be a prohibited employer,
14
the Minister must give the person a written notice:
15
(a) stating that the Minister proposes to make such a declaration
16
and the reasons for it; and
17
(b) inviting the person to make a written submission to the
18
Minister, within the period covered by subsection (4), setting
19
out reasons why the Minister should not make the
20
declaration.
21
(4) The period covered by this subsection is whichever of the
22
following periods ends later:
23
(a) the period ending 28 days after the day the person is given
24
notice by the Minister under subsection (3);
25
(b) if a period is stated in that notice for the making of a written
26
submission
--
the period stated.
27
(5) In making a decision about whether to declare a person to be a
28
prohibited employer, the Minister must consider:
29
(a) any written submission made by the person under
30
subsection (3) that is received by the Minister within the
31
period covered by subsection (4); and
32
(b) any prescribed matter.
33
Schedule 1
Amendments
Part 2
Prohibited employers
26
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
Notification and duration of declaration
1
(6) If the Minister declares a person to be a prohibited employer, the
2
Minister must, as soon as reasonably practicable, give the person a
3
copy of the declaration.
4
(7) The declaration comes into effect at the start of whichever of the
5
following days is later:
6
(a) the day after the day the declaration is given to the person;
7
(b) the day stated in the declaration as the day the declaration
8
comes into effect.
9
(8) The declaration has effect during the period specified in the
10
declaration (unless sooner revoked).
11
Review by the Administrative Appeals Tribunal
12
(9) Applications may be made to the Tribunal for review of a decision
13
under subsection (1) to declare a person to be a prohibited
14
employer.
15
Note:
Section 27A of the
Administrative Appeals Tribunal Act 1975
requires
16
that people whose interests are affected by the Minister's decision be
17
given notice of their rights to seek review of the decision.
18
245AYL Prohibition on allowing additional non-citizens to begin
19
work
20
(1) A person (the
first person
) contravenes this subsection if:
21
(a) the first person is a prohibited employer at a particular time;
22
and
23
(b) either:
24
(i) the first person allows a non-citizen to begin work at
25
that time; or
26
(ii) the first person has a material role in a decision made by
27
a body corporate or other body to allow a non-citizen to
28
begin work at that time; and
29
(c) at that time, the non-citizen is either:
30
(i) an unlawful non-citizen; or
31
(ii) a lawful non-citizen (other than a holder of a permanent
32
visa).
33
Amendments
Schedule 1
Prohibited employers
Part 2
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
27
Offence
1
(2) A person commits an offence if the person contravenes
2
subsection (1). The physical elements of the offence are set out in
3
that subsection.
4
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
5
(3) For the purposes of subsection (3), the fault element for
6
subparagraph (1)(b)(ii) is intention by the first person.
7
Civil penalty provision
8
(4) A person who contravenes subsection (1) is liable to a civil
9
penalty.
10
Note:
It is not necessary to prove a pers
on's state of mind in proceedings for
11
a civil penalty order (see section 486ZF).
12
Civil penalty:
240 penalty units.
13
245AYM Publishing information about prohibited employers
14
(1) If the Minister makes a declaration under subsection 245AYK(1)
15
in relation to a person, the Minister must cause to be published on
16
the Department's website the following information:
17
(a) the name of the person;
18
(b)
the person's ABN (if any);
19
(c) any other information that the Minister considers is
20
reasonably necessary to identify the person;
21
(d) the reasons for making the declaration;
22
(e) the period for which the declaration has effect.
23
(2) Subsection (1) does not apply in the prescribed circumstances.
24
(3) Information published under subsection (1) must not include
25
personal information about any individual other than the prohibited
26
employer.
27
(4) No civil liability arises from action taken by a person in good faith
28
in publishing information under subsection (1).
29
(5) To avoid doubt, the Minister is not required to arrange for the
30
removal, from the Department's website, of information published
31
Schedule 1
Amendments
Part 2
Prohibited employers
28
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
under subsection (1) when the person stops being a prohibited
1
employer.
2
245AYN Former prohibited employers to give certain information
3
(1) This section applies if:
4
(a) a person was a prohibited employer for a particular period
5
(the
prohibition period
); and
6
(b) the person allows a non-citizen to begin work on a particular
7
day (the
start day
) during the 12-month period starting on the
8
day after the prohibition period ends; and
9
(c) the non-citizen is a lawful non-citizen (other than the holder
10
of a permanent visa).
11
(2) The person must, before the end of the 28-day period starting on
12
the start day, give the Department a written notice that:
13
(a) sets out the name of the non-citizen; and
14
(b) specifies the kind of visa held by the non-citizen; and
15
(c) specifies the work to be done by the non-citizen; and
16
(d) if the non-citizen holds a visa that is subject to one or more
17
work-related conditions:
18
(i) sets out each of those conditions; and
19
(ii) states that the non-citizen will not be in breach of those
20
conditions solely because of doing that work; and
21
(e) sets out any other prescribed information.
22
(3) A person is liable to a civil penalty if the person contravenes
23
subsection (2).
24
Note:
It is not necessary to prove a person's state of mind in proceedings for
25
a civil penalty order (see section 486ZF).
26
Civil penalty:
48 penalty units.
27
(4) Before the Governor-General makes a regulation for the purposes
28
of paragraph (2)(e) prescribing information that is personal
29
information about an individual, the Minister must be satisfied that
30
the information is reasonably necessary for monitoring compliance
31
with Subdivisions C, E or F of this Division.
32
Amendments
Schedule 1
Prohibited employers
Part 2
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
29
245AYO Contravening civil penalty provisions
1
(1) This section applies if a civil penalty provision in this Subdivision
2
provides that a person contravening another provision of this
3
Subdivision (the
conduct rule provision
) is liable to a civil penalty.
4
(2) For the purposes of this Act, the person is taken to contravene the
5
civil penalty provision if the person contravenes the conduct rule
6
provision.
7
6 Section 487A
8
Repeal the following definitions:
9
(a) definition of
work-related offence
;
10
(b) definition of
work-related provision
.
11
Division 2
--
Application provisions
12
7 Application
--
bar placed on approved work sponsor etc.
13
(1)
Subsection 245AYE(1) of the
Migration Act 1958
, as inserted by this
14
Part, applies in relation to a bar placed on a person under
15
paragraph 140M(1)(c) or (d) of that Act on or after the commencement
16
of this item (whether the relevant conduct or omission was engaged in
17
before, on or after that commencement).
18
(2)
Subsection 245AYE(2) of the
Migration Act 1958
, as inserted by this
19
Part, applies in relation to a civil penalty order made on or after the
20
commencement of this item (whether the relevant conduct or omission
21
was engaged in before, on or after that commencement).
22
8 Application
--
conviction of work-related offence etc.
23
Section 245AYF of the
Migration Act 1958
, as inserted by this Part,
24
applies in relation to a conviction that occurs on or after the
25
commencement of this item (whether the relevant conduct or omission
26
was engaged in before, on or after that commencement).
27
9 Application
--
contravention of certain civil penalty
28
provisions etc.
29
(1)
Subsection 245AYG(1) of the
Migration Act 1958
, as inserted by this
30
Part, applies in relation to a civil penalty order made on or after the
31
Schedule 1
Amendments
Part 2
Prohibited employers
30
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
commencement of this item (whether the relevant conduct or omission
1
was engaged in before, on or after that commencement).
2
(2)
Subsection 245AYG(2) of the
Migration Act 1958
, as inserted by this
3
Part, applies in relation to an order made under a relevant workplace
4
law on or after the commencement of this item (whether the relevant
5
conduct or omission was engaged in before, on or after that
6
commencement).
7
10 Application
--
contravention of certain civil remedy
8
provisions of the
Fair Work Act 2009
9
Section 245AYH of the
Migration Act 1958
, as inserted by this Part,
10
applies in relation to a FW order made on or after the commencement of
11
this item (whether the relevant conduct or omission was engaged in
12
before, on or after that commencement).
13
11 Application
--
contravention of term of enforceable
14
undertaking etc.
15
Section 245AYI of the
Migration Act 1958
, as inserted by this Part,
16
applies in relation to an undertaking accepted under section 715 of the
17
Fair Work Act 2009
on or after the commencement of this item
18
(whether the relevant conduct or omission was engaged in before, on or
19
after that commencement).
20
12 Application
--
failure to comply with certain compliance
21
notices
22
Section 245AYJ of the
Migration Act 1958
, as inserted by this Part,
23
applies in relation to a compliance notice given under subsection 716(2)
24
of the
Fair Work Act 2009
on or after the commencement of this item
25
(whether the relevant conduct or omission was engaged in before, on or
26
after that commencement).
27
Amendments
Schedule 1
Aligning and increasing penalties for work-related breaches
Part 3
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
31
Part
3--Aligning and increasing penalties for
1
work
-
related breaches
2
Migration Act 1958
3
13 Subsection 140Q(1) (penalty)
4
Repeal the penalty, substitute:
5
Civil penalty:
6
(a) if the person is an approved work sponsor
--
240 penalty
7
units; or
8
(b) in any other case
--
60 penalty units.
9
14 Subsection 140Q(2) (penalty)
10
Repeal the penalty, substitute:
11
Civil penalty:
240 penalty units.
12
15 Subsection 245AB(3)
13
Repeal the subsection, substitute:
14
Offence
15
(3) A person commits an offence if the person contravenes
16
subsection (1). The physical elements of the offence are set out in
17
that subsection.
18
Note:
A defendant bears an evidential burden in relation to the matter in
19
subsection (2) (see subsection 13.3(3) of the
Criminal Code
).
20
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
21
16 Subsection 245AB(5)
22
Repeal the subsection, substitute:
23
Civil penalty provision
24
(5) A person is liable to a civil penalty if the person contravenes
25
subsection (1).
26
Schedule 1
Amendments
Part 3
Aligning and increasing penalties for work-related breaches
32
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
Note:
It is not necessary to prove a person's state of mind in proceedings for
1
a civil penalty order (see section 486ZF).
2
Civil penalty:
240 penalty units.
3
17 Subsection 245AC(3)
4
Repeal the subsection, substitute:
5
Offence
6
(3) A person commits an offence if the person contravenes
7
subsection (1). The physical elements of the offence are set out in
8
that subsection.
9
Note:
A defendant bears an evidential burden in relation to the matter in
10
subsection (2) (see subsection 13.3(3) of the
Criminal Code
).
11
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
12
18 Subsection 245AC(5)
13
Repeal the subsection, substitute:
14
Civil penalty provision
15
(5) A person is liable to a civil penalty if the person contravenes
16
subsection (1).
17
Note:
It is not necessary to prove a person's state of mind in proceedings for
18
a civil penalty order (see section 486ZF).
19
Civil penalty:
240 penalty units.
20
19 Subsections 245AD(1) and (2) (penalty and note)
21
Repeal the penalty and the note, substitute:
22
Note:
See section 245AH for when a person is being
exploited
.
23
Penalty: Imprisonment for 5 years or 900 penalty units, or both.
24
20 Subsection 245AE(3)
25
Repeal the subsection, substitute:
26
Amendments
Schedule 1
Aligning and increasing penalties for work-related breaches
Part 3
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
33
Offence
1
(3) A person commits an offence if the person contravenes
2
subsection (1). The physical elements of the offence are set out in
3
that subsection.
4
Note:
A defendant bears an evidential burden in relation to the matter in
5
subsection (2) (see subsection 13.3(3) of the
Criminal Code
).
6
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
7
21 Subsection 245AE(5)
8
Repeal the subsection, substitute:
9
Civil penalty provision
10
(5) A person is liable to a civil penalty if the person contravenes
11
subsection (1).
12
Note:
It is not necessary to prove a person's state of mind in proceedings for
13
a civil penalty order (see section 486ZF).
14
Civil penalty:
240 penalty units.
15
22 Subsection 245AEA(3)
16
Repeal the subsection, substitute:
17
Offence
18
(3) A person commits an offence if the person contravenes
19
subsection (1). The physical elements of the offence are set out in
20
that subsection.
21
Note:
A defendant bears an evidential burden in relation to the matter in
22
subsection (2) (see subsection 13.3(3) of the
Criminal Code
).
23
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
24
23 Subsection 245AEA(5)
25
Repeal the subsection, substitute:
26
Civil penalty provision
27
(5) A person is liable to a civil penalty if the person contravenes
28
subsection (1).
29
Schedule 1
Amendments
Part 3
Aligning and increasing penalties for work-related breaches
34
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
Note:
It is not necessary to prove a person's state of mind in proceedings for
1
a civil penalty order (see section 486ZF).
2
Civil penalty:
240 penalty units.
3
24 Subsections 245AEB(1) and (2) (penalty and note)
4
Repeal the penalty and the note, substitute:
5
Note:
See section 245AH for when a person will be
exploited
.
6
Penalty: Imprisonment for 5 years or 900 penalty units, or both.
7
25 Subsection 245AK(2)
8
Repeal the subsection, substitute:
9
Civil penalty provision
10
(2) An executive officer of a body corporate is liable to a civil penalty
11
if the officer contravenes subsection (1).
12
Note:
Section 4
86ZF (which provides that a person's state of mind does not
13
need to be proven in proceedings for a civil penalty order) does not
14
apply in relation to this subsection.
15
Civil penalty:
240 penalty units.
16
Amendments
Schedule 1
Enforceable undertakings for work-related breaches
Part 4
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
35
Part
4--Enforceable undertakings for work
-
related
1
breaches
2
Migration Act 1958
3
26 After section 245AL
4
Insert:
5
245ALA Enforceable undertakings
6
Enforceable provisions
7
(1) The following provisions are enforceable
under Part 6 of the
8
Regulatory Powers Act:
9
(a) a work-related offence;
10
(b) a work-related provision.
11
Note:
Part 6 of the Regulatory Powers Act creates a framework for
12
accepting and enforcing undertakings relating to compliance with
13
provisions.
14
Authorised person
15
(2) For the purposes of Part 6 of the Regulatory Powers Act, the
16
Minister is an authorised person in relation to the provisions
17
mentioned in subsection (1).
18
(3)
The Minister may, in writing, delegate the Minister's pow
ers and
19
functions under Part 6 of the Regulatory Powers Act to an
20
authorised officer in relation to the provisions mentioned in
21
subsection (1).
22
(4) The Minister may delegate a power or function under
23
subsection (3) only if the Minister is satisfied that the authorised
24
officer has appropriate qualifications, training or experience to
25
exercise the power or perform the function.
26
(5) An authorised officer exercising powers or performing functions
27
under a delegation under subsection (3) must comply with any
28
directions of the Minister.
29
Schedule 1
Amendments
Part 4
Enforceable undertakings for work-related breaches
36
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
Relevant court
1
(6) For the purposes of Part 6 of the Regulatory Powers Act, an
2
eligible court is a relevant court in relation to the provisions
3
mentioned in subsection (1).
4
Enforceable undertaking may be published on the internet
5
(7) An authorised person in relation to a provision mentioned in
6
subsection (1) may publish an undertaking given in relation to the
7
provision on the Department's website
.
8
Extension to external Territories
9
(8) Part 6 of the Regulatory Powers Act, as it applies in relation to the
10
provisions mentioned in subsection (1), extends to a Territory to
11
which this Act extends.
12
Note:
See section 7 of this Act.
13
Relationship with civil penalty orders
14
(9) The Minister must not apply for an order under subsection 486R(1)
15
(civil penalty orders) in relation to a contravention of a
16
work-related provision by a person if an undertaking given by the
17
person under Part 6 of the Regulatory Powers Act in relation to the
18
contravention has not been withdrawn.
19
27 Application provision
20
An undertaking under Part 6 of the
Regulatory Powers (Standard
21
Provisions) Act 2014
, as that Part applies under section 245ALA of the
22
Migration Act 1958
, may be given in relation to conduct (including an
23
omission) engaged in before, on or after the commencement of this
24
item.
25
Amendments
Schedule 1
Compliance notices for work-related breaches etc.
Part 5
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
37
Part
5--Compliance notices for work
-
related
1
breaches etc.
2
Division 1
--
Amendments
3
Migration Act 1958
4
28 At the end of subsection 140K(1)
5
Add:
6
; (d) an authorised officer may give the person a compliance
7
notice under section 140RB.
8
29 At the end of subsection 140K(2)
9
Add:
10
; (d) an authorised officer may give the person a compliance
11
notice under section 140RB.
12
30 After subsection 140RA(3)
13
Insert:
14
Relationship with compliance notices
15
(3A) The authorised person in relation to the provision mentioned in
16
subsection (1) must not accept an undertaking from a person in
17
relation to a sponsorship obligation if that person has been given a
18
notice under section 140RB in relation to a contravention relating
19
to the sponsorship obligation.
20
31 At the end of Subdivision D of Division 3A of Part 2
21
Add:
22
140RB Compliance notices
23
Scope
24
(1) This section applies if an authorised officer reasonably believes
25
that a person who is or was an approved work sponsor has
26
Schedule 1
Amendments
Part 5
Compliance notices for work-related breaches etc.
38
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
contravened subsection 140Q(1) or (2) (failing to satisfy
1
sponsorship obligations).
2
Giving a compliance notice
3
(2) The authorised officer may give the person a notice (a
compliance
4
notice
) specifying action that the person must, within such
5
reasonable time as is specified in the notice, take or refrain from
6
taking to address the contravention.
7
Note:
The compliance notice may be varied or revoked under
8
subsection 33(3) of the
Acts Interpretation Act 1901
.
9
(3) The compliance notice may require the person to produce
10
reasonable evidence of compliance with the notice.
11
(4) The compliance notice must also:
12
(a) set out the name of the person; and
13
(b) set out the name of the authorised officer; and
14
(c) set out a summary of the contravention; and
15
(d) explain that a failure to comply with the notice may
16
contravene a civil penalty provision; and
17
(e) set out any other prescribed matters.
18
Person must comply with compliance notice
19
(5) A person who is given a compliance notice must comply with the
20
notice.
21
Note:
It is not necessary to prove a person's state of mind in proceedings for
22
a civil penalty order (see section 486ZF).
23
Civil penalty:
48 penalty units.
24
Effect of compliance with compliance notice
25
(6) A person who complies with a compliance notice is not taken by
26
that compliance to have admitted to the contravention in relation to
27
which the notice is given.
28
Relationship with enforceable undertakings
29
(7) An authorised officer must not give a person a compliance notice
30
in relation to a contravention relating to a sponsorship obligation if:
31
Amendments
Schedule 1
Compliance notices for work-related breaches etc.
Part 5
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
39
(a) the person has given an undertaking under section 140RA in
1
relation to that sponsorship obligation; and
2
(b) the undertaking has not been withdrawn.
3
Relationship with civil penalty provisions
4
(8) The Minister must not apply for an order under subsection 486R(1)
5
(civil penalty orders) in relation to a contravention of
6
subsection 140Q(1) or (2) by a person if:
7
(a) an authorised officer has given the person a compliance
8
notice in relation to the contravention; and
9
(b) either of the following subparagraphs applies:
10
(i) the notice has not been withdrawn, and the person has
11
complied with the notice;
12
(ii) the person has made an application to a court for
13
judicial review of the decision to give the notice and the
14
application has not been completely dealt with.
15
32 After paragraph 140X(a)
16
Insert:
17
(aaa) for the purpose of investigating whether a person who is
18
or was an approved work sponsor has contravened
19
subsection 140RB(5); or
20
33 In the appropriate position in Division 12 of Part 2
21
Insert:
22
Subdivision F
--
Compliance notices for work-related breaches
23
245AYP Compliance notices
24
Scope
25
(1) This section applies if an authorised officer reasonably believes
26
that a person has contravened a conduct rule provision (within the
27
meaning of subsection 245AL(1) or 245AYO(1)).
28
Schedule 1
Amendments
Part 5
Compliance notices for work-related breaches etc.
40
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
Giving a compliance notice
1
(2) The authorised officer may give the person a notice (a
compliance
2
notice
) specifying action that the person must, within such
3
reasonable time as is specified in the notice, take or refrain from
4
taking to address the contravention.
5
Note:
The compliance notice may be varied or revoked under
6
subsection 33(3) of the
Acts Interpretation Act 1901
.
7
(3) The compliance notice may require the person to produce
8
reasonable evidence of compliance with the notice.
9
(4) The compliance notice must also:
10
(a) set out the name of the person; and
11
(b) set out the name of the authorised officer; and
12
(c) set out a summary of the contravention; and
13
(d) explain that a failure to comply with the notice may
14
contravene a civil penalty provision; and
15
(e) set out any other prescribed matters.
16
Person must comply with compliance notice
17
(5) A person who is given a compliance notice must comply with the
18
notice.
19
Note:
It is not necessary to prove a person's state of mind in proceedings for
20
a civil penalty order (see section 486ZF).
21
Civil penalty:
48 penalty units.
22
Effect of compliance with compliance notice
23
(6) A person who complies with a compliance notice is not taken by
24
that compliance to have admitted to the contravention in relation to
25
which the notice is given.
26
Relationship with enforceable undertakings
27
(7) An authorised officer must not give a person a compliance notice
28
in relation to a contravention if:
29
(a) the person has given an undertaking under section 245ALA
30
in relation to the contravention; and
31
(b) the undertaking has not been withdrawn.
32
Amendments
Schedule 1
Compliance notices for work-related breaches etc.
Part 5
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
41
Relationship with civil penalty provisions
1
(8) The Minister must not apply for an order under subsection 486R(1)
2
(civil penalty orders) in relation to a contravention of a provision
3
mentioned in subsection (1) of this section by a person if:
4
(a) an authorised officer has given the person a compliance
5
notice in relation to the contravention; and
6
(b) either of the following subparagraphs applies:
7
(i) the notice has not been withdrawn, and the person has
8
complied with the notice;
9
(ii) the person has made an application to a court for
10
judicial review of the decision to give the notice and the
11
application has not been completely dealt with.
12
34 Subsection 474(4) (before table item 1)
13
Insert:
14
15
1A
section 140RB
Compliance notices for failing to satisfy
sponsorship obligations
35 Subsection 474(4) (after table item 6)
16
Insert:
17
18
6A
section 245AYP
Compliance notices for work-related
breaches
Division 2
--
Application provision
19
36 Application of amendments
20
The amendments of the
Migration Act 1958
made by this Part apply in
21
relation to conduct (including an omission) engaged in before, on or
22
after the commencement of this item.
23
Schedule 1
Amendments
Part 6
Other amendments
42
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
Part
6--Other amendments
1
Division 1
--
Main amendments
2
Migration Act 1958
3
37 Subsection 116(1A)
4
Repeal the subsection, substitute:
5
(1A) The regulations may do any one or more of the following:
6
(a) prescribe matters to which the Minister must, or must not,
7
have regard in determining whether the Minister is satisfied
8
as mentioned in:
9
(i) a paragraph of subsection (1) or (1AC); or
10
(ii) subsection (1AA) or (1AB); or
11
(b) prescribe matters to which the Minister may have regard in
12
determining whether the Minister is satisfied as mentioned
13
in:
14
(i) a paragraph of subsection (1) or (1AC); or
15
(ii) subsection (1AA) or (1AB); or
16
(c) specify the weight to be given to a matter prescribed under
17
paragraph (a) or (b) of this subsection.
18
(1B) Subsection (1A) does not limit the matters to which the Minister
19
may have regard in determining whether the Minister is satisfied as
20
mentioned in:
21
(a) a paragraph of subsection (1) or (1AC); or
22
(b) subsection (1AA) or (1AB).
23
38 After subsection 140RA(2)
24
Insert:
25
(2A)
The Minister may, in writing, delegate the Minister's powers and
26
functions under Part 6 of the Regulatory Powers Act to an
27
authorised officer in relation to the provision mentioned in
28
subsection (1).
29
Amendments
Schedule 1
Other amendments
Part 6
No. , 2023
Migration Amendment (Strengthening Employer Compliance) Bill 2023
43
(2B) The Minister may delegate a power or function under
1
subsection (2A) only if the Minister is satisfied that the authorised
2
officer has appropriate qualifications, training or experience to
3
exercise the power or perform the function.
4
(2C) An authorised officer exercising powers or performing functions
5
under a delegation under subsection (2A) must comply with any
6
directions of the Minister.
7
39 Section 235
8
Repeal the section.
9
40 Subsection 245AA(4)
10
Repeal the subsection.
11
41 At the end Subdivision C of Division 12 of Part 2
12
Add:
13
245APA Effect of this Subdivision on the validity of certain
14
contracts is to be disregarded
15
(1) For the purposes of a relevant workplace law, any effect of this
16
Subdivision on the validity of a contract of service, or the validity
17
of a contract for services, is to be disregarded.
18
(2) In this section:
19
relevant workplace law
means:
20
(a) another law of the Commonwealth (other than the
Fair Work
21
Act 2009
) that regulates the relationships between the parties
22
to a contract of service, or a contract for services, in relation
23
to the performance of work; or
24
(b) a law of a State or Territory that regulates the relationships
25
between the parties to a contract of service, or a contract for
26
services, in relation to the performance of work;
27
and includes a law dealing with occupational health and safety
28
matters and a law dealing with workers' compensation
.
29
Schedule 1
Amendments
Part 6
Other amendments
44
Migration Amendment (Strengthening Employer Compliance) Bill 2023
No. , 2023
Division 2
--
Contingent amendment
1
Migration Act 1958
2
42 At the end of subsection 245APA(2)
3
Add:
4
Note:
Section 40B of the
Fair Work Act 2009
also provides that for the
5
purposes of that Act, any effect of this Act, or an instrument made
6
under this Act, on the validity of a contract of employment, or a
7
contract for services, is to be disregarded.
8