2.1  Migration Amendment (Strengthening Employer Compliance) Act 2024

The Act, passed in late February 2024 and due for implementation on July 1st of the same year, aims to bolster penalties for employers found exploiting temporary laborers and imposes restrictions on hiring non-citizens in cases of severe violations. Additionally, the Act endeavors to discourage employers from coercing temporary workers into agreements that could potentially lead to visa violations related to their employment.

The recently enacted law introduces new criminal charges and civil fines for transgressions associated with work arrangements, expanding the definition to explicitly cover non-work-related activities beyond those typically compensated. Examples of this include surrendering a passport or agreeing to unsafe housing arrangements.

Subsequently, the legislation establishes an offence for coercing or exerting undue influence on either lawful or unlawful non-citizens to consent to work arrangements that would:

• breach a work-related condition; 
• avoid an adverse effect on their immigration status; or
• satisfy requirements to provide information or documents about work the lawful non‑citizen has done in Australia.

A new definition of ‘migrant worker sanction’ was added, which are employers who:

• contravene certain civil remedy provisions of the Fair Work Act 2009 (Cth); 
• are convicted of a work-related offence in the Migration Act; 
• are subject to a court order against the employer in relation to the treatment of a migrant worker that contravenes certain offences; 
• are barred from sponsoring migrant workers for contravening sponsorship obligations; or
• have failed to comply with a compliance notice issued under the Fair Work Act or an enforceable undertaking agreed with the Fair Work Ombudsman.

Companies facing migrant worker penalties could be designated as prohibited employers, thereby committing an offense if they permit further non-citizens to commence employment or if they hold a significant position in a corporate entity facilitating non-citizens’ employment. Additionally, the Minister retains the authority to publicize prohibited employers on a designated website, akin to the sanctioned sponsor registry accessible on the Australian Border Force website. Former prohibited employers are obliged to furnish details to the Department of Home Affairs within 28 days of hiring a non-citizen, a responsibility that persists for 12 months subsequent to their cessation as prohibited employers.

What should foreign companies do?

It is critical for any organisations within Australia hiring, or seeking to hire foreign staff to be aware of their obligations to ensure full compliance with the Migration Act 1958 (Cth), particularly where visa sponsorship is required. The applicable penalties for contravention have been increased and non-compliant employers may be barred from hiring foreign workers. Negative effects on goodwill and poor publicity may also harm non-compliant businesses, therefore it is imperative for employers to remain updated and compliant with recent legislative changes. 

2.2  Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024

A range of major amendments were contained in the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2023, which was passed by the Parliament on 12 February 2024. 

Some of the key relevant changes include: 

• a ‘right to disconnect’ that allows employees to refuse to monitor work communications outside of their working hours if the refusal is reasonable;
• amendments to the definition of casual employment and conversion from casual to permanent employment;
• the establishment of a new unfair contracts jurisdiction in the Fair Work Commission (FWC) to be accessible to certain independent contractors;
• changes to the meaning of employee and employer under the FWC, that will impact who is an employee rather than a contractor under the FW Act;
• major changes empowering the FWC to regulate the engagement of ‘employee like workers’, which will include certain contractors engaged in the ‘gig economy’;
• changes to enable the FWC to regulate the engagement of certain contractors in the road transport industry and arrangements in the supply chain more broadly;
• the FWC having the power to vary ‘model terms’ for enterprise agreements concerning flexibility, consultation and dispute resolution in relation;
• intractable bargaining workplace determinations;
• a revised ‘reasonable belief’ defence for sham independent contractor arrangements;
• union right of entry without notice in connection with suspected underpayments; and
• significantly increasing maximum penalty amounts for underpayment contraventions.

What should foreign companies do?

Employers, including foreign companies operating in Australia, must stay informed about the amendments introduced in the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 to ensure compliance with updated regulations. Key changes include the implementation of a ‘right to disconnect’ for employees, revisions to casual employment definitions, and increased penalties for underpayment contraventions. Additionally, the Act empowers regulatory bodies to oversee gig economy workers and contractors, necessitating employers in these sectors to understand and adhere to their obligations. Failure to comply could result in significant legal consequences and penalties, highlighting the critical importance of awareness and adherence to the amended legislation for both local and foreign entities operating within Australia.