BREAKING THE SILENCE – AUSTRALIA ADOPTS MJI’S MODEL FOR VISA PROTECTIONS THAT ENABLE MIGRANT WORKERS TO ADDRESS EXPLOITATION
In Australia, as elsewhere in the world, many migrant workers do not take action to address exploitation because they fear immigration consequences. Migrant Justice Institute and Human Rights Law Centre led a national coalition proposing two key immigration reform measures to help to bring migrant workers out of the shadows and hold exploitative employers to account.
In February 2023, we released Breaking the Silence - a detailed blueprint to enable migrant workers to safely enforce their labour rights against unscrupulous employers without risking their visa. The proposal was endorsed by over 40 organisations including legal centres, ethnic community state and national peak bodies, unions, churches, leading businesses, national service providers and the NSW Anti-Slavery Commissioner.
In July 2024, the Australian government introduced both sets of world-leading visa reforms:
A new short-term ‘Workplace Justice visa’ with work rights to enable a migrant worker to stay in Australia to enforce their labour rights; and
Protections from visa cancellation for exploited migrant workers who have breached their visa but take action against their employer.
The problem
Migrant worker exploitation is entrenched in workplaces across Australia. The vast majority of unlawful employer conduct goes unchecked. In our surveys of thousands of migrant workers, three quarters were paid less than the casual minimum wage and, among the underpaid workers, nine in ten told nobody.
Many migrant workers stay silent for fear that if they come forward they will put their visa and stay in Australia at risk or jeopardise a future visa. When migrant workers reach the end of their stay and could potentially safely pursue a labour claim without risk to their job or visa, they are required to swiftly return home. All intelligence about exploitative employers is lost and the worker never recovers the wages they are owed.
The Australian government labour regulator, the Fair Work Ombudsman (FWO), has limited enforcement capacity and takes a small number of cases each year. Most migrant workers are extremely reluctant seek the regulator’s assistance. In 2017, the Federal Government attempted to address this issue by implementing an Assurance Protocol. Under this scheme, the Department of Home Affairs (DHA) committed to generally not cancel a worker’s visa for breach of work rights if the worker is assisting the FWO with its inquiries. The Protocol has not been effective, with only around 15 migrant workers using it each year.
Because of this regulatory failure, employers have known they will not be held to account and underpayment of migrant workers has become a widely successful business model. In some industries, this makes employers that do the right thing uncompetitive. Businesses cannot detect wage theft (or modern slavery) in their supply chains because migrant workers will not report it to auditors or the regulator.
The new visa protections
The two sets of reforms will assist workers to take action to enforce their labour rights in different circumstances. This includes addressing underpayment, workplace injury, bullying, sexual harassment and discrimination.
Workplace Justice Visa
Allows migrants to stay in Australia on a temporary visa to pursue a workplace justice matter
To apply for the visa, a migrant must obtain a certification that there is evidence that the applicant has experienced workplace exploitation, the applicant is committed to seeking justice or redress, and the applicant’s presence in Australia is either beneficial or necessary to effectively and efficiently address the exploitation
The certification is provided by a government agency or ‘accredited third party’
The applicant must hold a temporary substantive visa (not a Bridging visa) with work rights with no more than 28 days remaining
The visa will carry full work rights and there is no application charge
Protection against visa cancellation
For migrants who have breached a visa with work rights, the Department of Home Affairs cannot cancel their visa if:
They have breached the work condition on their visa (e.g. worked more hours than permitted); and
They obtain a certification from a government agency or ‘accredited third party’ certifying that there is evidence that the migrant has experienced workplace exploitation, there is a connection between the exploitation and the visa breach and the migrant is committed to complying with visa conditions in the future. The exploitation must have either occurred in the preceeding 12 months or have been ‘serious or systemic’ in nature (see Migration Act 1958 (Cth) s 116(2); Migration Regulations 1994 (Cth), reg 2.43B).
This will give these migrants a guarantee that their current visa (and future visas) will not be affected before they make contact with a government agency. (The guarantee relates to cancellation on the basis of the breach of the work condition; the visa could still be cancelled on character, health or other grounds.)
For migrants on visas without work rights, or who have breached non-work-related visa conditions, when the Department makes a decision about whether to cancel their visa, the Department must have regard to the migrant’s experience of workplace exploitation as set out in a certification by a government agency or accredited third party (see Migration Act 1958 (Cth) s 116(1A); Migration Regulations 1994 (Cth), reg 2.43A).
Who will benefit from the protections?
These protections will benefit migrants on a range of temporary visas. For example:
An exploited international student who has worked more than 48 hours a fortnight in breach of their visa (often to make ends meet on unlawfully low wages) could bring a claim against their employer and recover the wages they are owed, with certainty that their visa would not be cancelled based on the number of hours they worked.
A sponsored worker who was injured at work but too afraid to take action could access a short-term visa to pursue workers compensation before returning home.
An exploited backpacker who is about to leave Australia but didn’t want to report sexual harassment during their fruit-picking job could access a short-term visa to stay for 6 months to hold their employer to account before returning home.
The proposal will also benefit:
Employers that pay their workers correctly and want a level playing field;
Businesses that want to detect and address exploitation and modern slavery in their supply chains;
Federal and state governments that want to strengthen enforcement of labour laws;
Unions that seek to engage and recruit migrant workers;
Consumers that want greater assurance that goods and services are not produced through exploitation of migrant workers; and
All workers in Australia, when employment standards are more likely to be enforced and a race to the bottom is disrupted.
How will these protections contribute to fixing the problem?
These reforms will begin to break the entrenched cycle of exploitation and expand government’s enforcement of labour law by:
Changing employer behaviour by increasing the likelihood that exploitation will come to light and they will be held to account;
Substantially expanding enforcement beyond the limited capacity of government agencies by enabling more employment lawyers and unions to pursue claims on behalf of migrant workers who would not otherwise come forward;
Increasing detection of exploitation among federal and state government agencies by bringing claims to the attention of those regulators;
Increasing business’ ability to detect and address wage theft and modern slavery in supply chains by enabling migrant workers to more safely report it, while not creating any new red tape for businesses that do the right thing and comply with employment laws;
Encouraging migrants to join unions and assisting unions to organise and represent migrant workers; and
Creating new incentives for migrant workers to report forms of exploitation not currently covered by the Assurance Protocol, including workplace health and safety, sexual harassment, bullying and discrimination.
The proposal was endorsed by
