Can I get in trouble for sending workers to a local cafe if they don't have work rights?

The situation

I run a small labour hire agency based in Melbourne, Victoria, and I am feeling quite anxious about a situation that occurred last week. Since January, I have been providing casual staff to various hospitality venues across the city. On Tuesday, the 14th of May, a regular client—a local cafe owner—asked me if I could send someone over immediately to cover a shift. I sent a person who I believed was a lawful non-citizen with a valid visa. I didn't check their specific work conditions because I thought they were fine, but it turns out their visa actually had a strict limit on how many hours they could work, and this shift would have put them over that limit. I have already tried calling the worker to clarify their status, but they haven't answered my calls. I am worried because I didn't use the official online checking systems to verify their exact visa restrictions before I made the referral. Am I personally liable for a massive fine or even jail time just because I referred someone to a third party without double-checking if the specific job would cause them to break their visa rules?

Detailed Analysis

Under the Migration Act 1958, your actions as a labour hire agency owner are specifically addressed. Because you operate a service that refers people to third parties for work, you fall under the rules regarding referrals^[1].

Specifically, a person contravenes the law if they "operate a service, whether for reward or otherwise, referring other persons to third persons for work" and the worker "will be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred"^[1]. In your case, the worker's shift on 14 May would have caused them to exceed their visa hour limits.

Whether you are personally liable for a crime depends on your state of mind. For a criminal offence, the law requires "knowledge or recklessness by the first person"^[1]. Recklessness means you were aware of a substantial risk that the worker would breach their visa conditions but went ahead anyway. If you are found to have acted with knowledge or recklessness, you could face up to 2 years of imprisonment or 360 penalty units^[1]. Even if you are not charged with a crime, you may still be liable for a civil penalty (a fine paid to the government) of 240 penalty units^[1].

You might avoid these penalties if you can prove you "takes reasonable steps at reasonable times before the referral to verify that the prospective worker will not be in breach"^[1]. Using a prescribed computer system to check visa details is one way to meet this requirement. Because you admitted you did not use these official systems, your ability to claim you took "reasonable steps" may be weakened.

It is uncertain if your failure to check the specific hour limits constitutes 'recklessness' in a legal sense, as this depends on what a court decides a reasonable agency owner should have known in your specific circumstances.

Statutory Citations

Related Questions

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