Examples of contractual clauses and exchange of letters

Contractual clauses

Businesses may face infringement notices or civil penalties for engaging or referring an illegal worker even if the person was sourced from a referral agent, labour supply company, contractor or subcontractor providing services. However, there will be no penalty if the business can provide evidence that they have taken reasonable steps at reasonable times to determine if the worker was allowed to work.

Businesses can rely on contractors and labour hire companies to check that all workers are allowed to work. They can do this by adding a clause to their contract specifying that if the supply of labour includes non-citizens, the non-citizens must have the required permission to work.

Examples of suitable wording for a business to add to their contracts are provided below.

Referral of workers without permission to work

x. Referral of illegal workers prohibited

x.1. For the purposes of this Clause x, an 'illegal worker' is a person who is an Unlawful Non-Citizen who is working without a visa, or a Non-Citizen who is performing work in breach of a Visa Work Condition, and the following definitions also apply:

  1. 'Non-Citizen' has the same meaning as under the Migration Act 1958; and
  2. 'Unlawful Non-Citizen' has the same meaning as under the Migration Act 1958; and
  3. 'Visa Work Condition' means a condition (as set out in Schedule 8 of the Migration Regulations 1994) attached to a visa restricting the work that the Non-Citizen may do in Australia; and

a reference to the Migration Act 1958 or to the Migration Regulations 1994 is a reference to the Act or Regulations, as the case may be, as amended or replaced from time to time.

x.2. The [labour supplier, however described] must ensure that each person referred under this Contract would not, in doing the work for which they are referred, be an illegal worker.

x.3. When requested in writing, the (labour supplier, however described) will provide evidence within 14 days that it has taken all reasonable steps to ensure that it has complied and is complying with its obligations under this Clause x.

Engagement of workers without permission to work

y. Engagement of illegal workers prohibited

y.1. For the purposes of this Clause y, an 'illegal worker' is a person who is an Unlawful Non-Citizen who is working without a visa, or a Non-Citizen who is performing work in breach of a Visa Work Condition, and the following definitions also apply:

  1. 'Contractor' will, include the officers, employees, volunteers, bailees, agents and authorised subcontractors of the Contractor; and
  2. 'Non-Citizen' has the same meaning as under the Migration Act 1958; and
  3. 'Unlawful Non-Citizen' has the same meaning as under the Migration Act 1958; and
  4. 'Visa Work Condition' means a condition (as set out in Schedule 8 of the Migration Regulations 1994) attached to a visa restricting the work that the Non-Citizen may do in Australia; and

a reference to the Migration Act 1958 or to the Migration Regulations 1994 is a reference to that Act or Regulations, as the case may be, as amended or replaced from time to time.

y.2. The Contractor must ensure that each person engaged by the Contractor would not, in doing the work for which they are engaged, be an illegal worker.

y.3. The Contractor must make compliance by any subcontractors with the provisions of this Clause y a condition of any subcontract.

y.4. The Contractor must remove, or cause to be removed, any illegal worker from any involvement in the provision of the services.

y.5. For the avoidance of doubt, compliance with the Contractor's obligations under this Clause 1.1 will not constitute a force majeure event, or give rise to an entitlement to claim any delay or otherwise excuse the Contractor from compliance with its obligations under this Contract.

y.6. When requested in writing, the Contractor will provide evidence within 14 days that it has taken all reasonable steps to ensure that it has complied, and is complying with, its obligations under this Clause y.

Exchange of letters

Businesses may face infringement notices or civil penalties for engaging or referring an illegal worker even if the person was sourced from a referral agent, labour supplier, contractor or subcontractor providing services.  However, there will be no penalty if the business can provide evidence they have taken reasonable steps at reasonable times to check that the worker was allowed to work.

Where a business has a workforce which comprises seasonal labour or has a high turnover of staff, a more practical solution may be to ask their referral agent, labour supplier, contractor or subcontractor providing services to enter into an exchange of letters arrangement which stipulates that all workers supplied are allowed to work.

It is recommended that a copy of the letters be kept by the business as evidence that reasonable steps have been taken to ensure the validity of all workers supplied.

Examples of suitable wording for an exchange of letters between the business and their referral agent, labour supplier, contractor or subcontractor providing services are provided below.

Referral agent or labour supplier

To (name of referral agent or labour supplier)

It is prohibited under the Migration Act 1958 to allow or refer an illegal worker to work.

You must ensure that each person you refer or supply to (name of business) for work is allowed to work in Australia

A person who is allowed to work in Australia is one of the following:

  1. an Australian citizen; or
  2. a non-citizen with a valid Australian visa that allows the person to work in Australia.

Certain visas, for example visitor visas do not allow non-citizens to work while they are in Australia. People who no longer hold a valid visa are also not allowed to work in Australia.

The Department has published a set of practical examples of ways in which you can check if a non-citizen is allowed to work in Australia.

See: Employing legal workers

Please sign below as an agreement that each person you refer or supply to me for work is allowed to work in Australia.

Agreement of referral agent or labour supplier

Signature

Date

Contractor or sub-contractor providing services

To (name of contractor or sub-contractor)

It is prohibited under the Migration Act 1958 to allow or refer an illegal worker to work.

You, as the contractor providing the services to (name of business) must ensure that each person you employ or sub-contract to provide the services is allowed to work in Australia.

A person who is allowed to work in Australia is one of the following:

  1. an Australian citizen; or
  2. a non-citizen with a valid Australian visa that allows the person to work in Australia.

Certain visas, for example visitor visas do not allow non-citizens to work while they are in Australia.  People who no longer hold a valid visa are also not allowed to work in Australia.

The Department has published a set of practical examples of ways in which you can check if a non-citizen is allowed to work in Australia.

See: Employing legal workers

Please sign below as an agreement that each person you employ or sub-contract to provide the services is allowed to work in Australia.

Agreement of contractor or sub-contractor providing the services

Signature

Date