Complize by Hammond Taylor provides a range of innovative online ‘RegTech’ compliance tools to help organisations manage their Australian immigration obligations.
RegTech is the emerging field of Regulatory Technology that helps organisations use technology to meet legal compliance and regulatory issues.
Our suite of RegTech tools support organisations, from start-ups to ASX companies, NGOs, and government departments to ensure:
- staff have appropriate training in immigration law to meet the strict liability regulations
- key stakeholders have access to up to date and relevant immigration information to support the organisation’s immigration programs;
- systems and processes to manage organisational compliance; and
- appropriate risk mitigation through access to real time data and reporting
Why Immigration Compliance?
Immigration compliance has long been at the bottom of a long list of activities for HR professionals and in-house counsel in Australia. While finance, workplace health and safety and other areas of corporate compliance have become foreground issues in the last few decades, immigration has been seen as a background issue with little potential impact on the business.
This view is, however, incorrect. Immigration compliance laws pose the same level of risk to organisations operating in Australia as more well known areas. Reputational risk, financial loss or business litigation, and even criminal penalties for directors and key stakeholders are now prescribed for breaches of immigration laws.
The last decade has seen massive growth in temporary visa holders in the Australian workforce. Almost 1 million temporary visa holders now participate in the labour market and any time an employer seeks to engage an employee or contractor they must conduct immigration checks or be in breach of immigration laws.
How does Complize work?
All Australian organisations have an obligation to only employ staff with the right to work in Australia. In addition, organisations which are registered to sponsor overseas staff for employment under the 482 visa program, or as Temporary Activity sponsors, have additional obligations under immigration laws.
Businesses must ensure they comply with immigration laws or risk facing serious penalties including fines or even imprisonment. In some cases, immigration laws can affect company officers, including directors, CEOs, CFOs, and company secretaries. Some elements of the immigration regime operate on a strict liability basis, meaning that unless organisations take pro-active steps to prevent breach, there may be liability.
Hammond Taylor is a boutique immigration law firm and specialises in corporate immigration solutions. As part of our work we frequently see the gaps in business policy and process when it comes to immigration. We’ve developed a solution, to help businesses resolve these gaps and meet immigration obligations in a cost effective manner, with a minimum of fuss, and maximum efficiency.
Ensuring that your organisation is fully compliant with all immigration laws will:
- Minimise risk of financial harm
- Minimise risk of reputational damage
- Ensure company office bearers and directors are protected
The Complize Suite provides access to training for stakeholders and employees, access to relevant immigration content for employees of the business who manage internal immigration, and workforce management tools to track data, make notifications and verify compliance.
The last decade has seen a large number of scandals involving employers failing to comply with immigration compliance obligations. The results have been serious reputational damage and penalties for misconduct.
Compliance with immigration laws is critical for organisations operating in Australia, as past scandals have shown. While penalties for non-compliance are significant, the risk of serious reputational damage is potentially even greater. Much like recent scandals about employee underpayments, there is a real risk that today’s business conduct could be tomorrow’s newspaper headlines.
Civil & Criminal Penalties
The immigration penalty regime includes substantial fines, as well as criminal offences, for breaches of the law. These fines can be up to $50,400 per breach and criminal penalties include up to 2 years’ imprisonment.In addition, the regime operates on a strict liability basis, meaning that organisations must take pro-active steps to prevent breach in order to have a defence. Executive officers may also be liable for organisational breaches.
While these penalties are serious, the ability of immigration non-compliance to garner media attention is perhaps most significant. Some organisations’ have become by-words for immigration abuse and scandal. It is hard to quantify the reputational damage that has occurred to these organisations as a result of a failure to ensure compliance among employees, contractors, stakeholders, and franchisees. Our immigration toolkit is designed to provide organisations with critical staff training, certification and data management to manage risk.
Immigration law includes 3 distinct legal compliance frameworks
I. Charging for a Migration Outcome
Charging for a Migration Outcome (‘CFMO’) laws were introduced in 2017 to ensure that the visa sponsorship system was not abused to enable individuals to profit by buying or selling visa sponsorship.
The laws are embedded in Part 2 Division 12 Subdivision D (sections 245AQ-245AY) of the Migration Act 1958. These laws prohibit asking for, receiving, offering, or giving a benefit in exchange for sponsorship. ‘Benefit’ is defined very broadly to include any form of good, service, money, property, favour, or advantage. ‘Sponsorship’ refers to actions related to the immigration sponsorship system such as becoming a business sponsor, nominating an individual or otherwise supporting their visa application.
Breaches of CFMO laws can result in civil penalties and criminal sanctions for people asking for or receiving a benefit. For individuals who offer or give a benefit in breach of the laws, they may be subject to civil penalties and/or visa cancellation.
CFMO laws are particularly significant for organisations as executive officers (CEOs, Directors, Secretaries, etc.) may be liable for breaches by individuals in the business, including employees and contractors. In order to limit liability, organisations must take all reasonable steps to ensure that staff have sufficient training and information to understand their legal responsibilities.
Complize is designed to support organisations to provide appropriate compliance training through our certification training and workforce management systems to mitigate risk and manage compliance across the business.
II. Work Rights Verification obligations
All Australian employer have obligations under the Migration Act 1958. Specifically, organisations must not employ staff or contractors who do not have the right to work in Australia and severe penalties can apply to any who breach these laws. These offences are found in Part 2 Division 12 Subdivision D of the Migration Act 1958, in sections 245AA – 245AP.
In 2013 the Federal Parliament passed the Migration Amendment (Reform of Employer Sanctions) Act which made it a strict liability offence to employ a person, allow a person to be employed, or refer a person for work, without work rights in Australia. This includes both employees, sub-contractors and contractors.
The consequences of these laws are far reaching, in particular the additional responsibility for contractors or others engaged through a contract for service. As a strict liability offence it does not matter if an employer is not aware of these laws or that an individual is not allowed to work in Australia. Unless employers have taken reasonable steps to verify that the person is allowed to work they are in breach of these laws.
To comply with the legislation employers must take certain steps to verify that they only employ people with Australian work rights. Some of the necessary steps include:
- Maintaining records for all new and existing employees which show Australian citizenship, permanent residency, or NZ citizenship;
- Maintaining records of all temporary visa holders’ work rights;
- Checking work rights of temporary visa holders using the Department of Immigration’s Visa Entitlement Verification Online system every 3 months for the duration of their employment.
The legislation introduced three tiers of penalties up to and including fines and imprisonment. Periods of imprisonment can apply to persons, including officers of the company, who breach the legislation knowingly or recklessly. Where deliberate exploitation exists the period of imprisonment can be up to 5 years.
Managing these obligations in a large business can be challenging. It is critical that responsible staff ensure stakeholders and line managers are appropriately educated about the obligations and the consequences of failure to comply.
The Complize system has been designed to ensure that employers can easily manage this obligation through Work Rights Verficiation prior to engagement, through the Onboarding process, and automated checks during the course of employment.
III. Sponsorship Obligations
The Australian immigration sponsorship system enables organisations to sponsor visa holders to work, train, conduct research, or participate in other activities in Australia. Authorisation to access these programs is through a Sponsorship Agreement (Business or Activity Sponsorship, Labour Agreement, Global Talent Employer Sponsorship, etc.) All organisations which hold a Sponsorship are subject to a number of ongoing obligations, defined in the Migration Act 1958 and Regulations 1994.
These obligations include notifications to the Department of Immigration and Border Protection, obligations to undertake certain activities (such as ensuring that visa holders receive market salary rates, return travel costs are met, and training of Australian employees), as well as record keeping obligations.
Managing these obligations in large businesses can be a challenge, particularly where payroll, training, hiring and other activities occur across separate business silos. Implementing effective systems and processes is critical to managing these obligations.
Access to Sponsorship programs is often critical to operational effectiveness. As such it is essential to ensure that the business meets its obligations, understands the compliance framework that applies to sponsors, and takes active steps to manage the activities of agents of the organisation to prevent breaches.
One important step is to ensure that responsibility for managing the Sponsorship Obligations is centralised within a single business function. It is also advisable that quarterly or bi-annual reviews are conducted to ensure the business is fully compliant with the obligations.
The Complize system provides a number of tools to assist businesses to manage their obligations through data capture and storage, compliance notifications, and a guided audit processes using automation workflows.