Today, a federal Senate Committee adopted Migrant Justice Institute’s recommendation to amend Australian labour law to confirm that it applies regardless of immigration status.
This was one of only 8 recommendations made by the Senate Education and Employment Legislative Committee inquiring into the Australian Government’s Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth).
Our written submission to the Committee and oral testimony had commended the Bill’s aims to boost bargaining and improve job security for workers. But we argued the Bill misses a key opportunity to tackle migrant worker exploitation, including by clarifying that undocumented workers are not excluded from protection of the Fair Work Act 2009 (Cth).
There is conflicting caselaw as to whether undocumented workers are entitled to those statutory labour protections, as well as protections in workers compensation legislation and anti-discrimination laws. This has created a loophole through which employers can freely exploit and underpay undocumented workers and evade paying compensation for their workplace injuries. We recommended amendment of the Fair Work Act to remove this gap in protection, as well as amendment to the Migration Act 1958 (Cth) to ensure undocumented workers are not excluded from a range of other workplace protections.
We also recommended five further amendments to the Bill to strengthen protections for migrants and other vulnerable workers as part of this Bill:
Objects of the Fair Work Act: the objects provisions must be broadened to not only promote job security and gender equity, but also to (1) promote decent work; (2) eliminate the exploitation of vulnerable workers; and (3) address the systemic drivers of exploitation.
Small claims reform: In addition to enabling successful claimants to recover filing fees as costs, successful claimants should be able to recover their legal costs.
Advertisements: To ensure that the proposed prohibition captures the ways that many employers ‘advertise’ jobs, a legislative note should confirm that prohibited advertising includes written communication by employers to potential employees via online apps and social media.
Information and transparency: To ensure that workers are aware of their specific entitlements and able to identify their employing entity if they wish to bring a claim, the FW Act should be amended to require employers to provide each worker with a statement of specific working conditions (Award, wage rates, hours etc.) and employer contact details (including address for service) upon commencement, and to itemise deductions on payslips.
Legal responsibilities for individuals & supply chains: The Migrant Worker Taskforce recommended that the government consider additional avenues to hold individuals and businesses to account for their involvement in breaches of workplace laws. For this Bill, we recommend a strengthening of current accessorial liability provisions to stop rewarding businesses who turn a blind eye to exploitation and to remove the inconsistency with the responsible franchisor provisions.
Beyond this Bill, we argued, the Government must introduce further reforms to the Fair Work Act and Migration Act to incentivise employer compliance and improve access to justice, and to give effect to the Migrant Worker Taskforce recommendations. This includes whistleblower protections for workers who come forward with a complaint; a simpler, fairer and faster dispute resolution process for unpaid wages and entitlements; a more accessible and better resourced enforcement agency with a dedicated unit and wage calculation service for migrant workers; and a proper safety net (including extended access to the Fair Entitlements Guarantee) when businesses liquidate or disappear.
We understand that further reforms are slated for 2023, and we look forward to working with the Government and other stakeholders to develop these reforms based on robust evidence of migrant workers’ experiences.