Employers' responsibility to ensure right to work

Employers in Australia and New Zealand are legally required to ensure that any person they employ has the right to work in the country. This requirement is enforced by relevant government authorities in both jurisdictions, which mandate compliance and establish penalties for employers who fail to verify right to work eligibility.

Why employers must ensure right to work

• Legal compliance: Employers must not employ or contract individuals who do not have the right to work. Both jurisdictions have legal frameworks that prohibit employing individuals without a valid right to work, outlining offences for employing people with restrictive visa conditions or no visa at all.
• Avoidance of penalties: Employers found to be employing someone without the right to work may face civil penalties (e.g., significant fines for companies and individuals). Criminal penalties, including imprisonment, may apply if an employer knowingly or recklessly employs an individual without the legal right to work.
• Protection of vulnerable workers: Ensuring right to work helps protect vulnerable workers, such as those on temporary visas, from exploitation. It ensures fair treatment under workplace laws and protects workers' rights.
• Ethical obligations: Verifying right to work reflects good corporate governance and a commitment to ethical employment practices, which can enhance an employer's reputation and demonstrate corporate responsibility.

How to check right to work

Employers can confirm a person's legal right to work through government systems designed for this purpose. These systems allow businesses to check visa conditions, including work restrictions, ensuring compliance with the law.

Best practices for employers

• Pre-employment checks: Always verify a candidate's right to work before offering or starting employment.
• Record keeping: Maintain records of right to work checks and employment contracts to demonstrate compliance.
• Ongoing monitoring: Periodically recheck right to work, especially for employees on temporary visas with expiry dates.

Right to work compliance for citizens

While citizens in both Australia and New Zealand do not require a visa to work, employers are still responsible for verifying their right to work.

Verify citizenship

Employers must confirm an individual’s citizenship status. Accepted proof may include:

• A passport (current or expired within a specified period).
• A birth certificate (for those born under specific conditions).
• A citizenship certificate.

Maintain records

Employers should retain copies of the evidence provided—storing documents with biometric is not necessarily needed. Maintaining these records ensures compliance in case of audits or investigations by government agencies.

Avoid discrimination

Employers must treat citizens the same as other workers during the verification process. Asking for excessive documentation or targeting specific groups could breach anti-discrimination laws.

Optional use of verification systems

Employers may choose to use third-party systems to verify and document the right to work for all employees, including citizens. This can streamline processes and ensure consistent compliance and avoid issues around biometric data storage.

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See how PICMI works with CheckWorkRights

Best practice recommendation

Even though citizens generally only require a one-time check, integrating this into a consistent process for all employees (citizens and visa holders) simplifies compliance and ensures robust record-keeping.