Migrant worker exploitation is entrenched in workplaces across Australia. Tragically, a deep fear of immigration consequences means most unlawful employer conduct goes unreported.
Authors
Laurie Berg
Associate Professor, University of Technology Sydney
Bassina Farbenblum
Associate Professor, UNSW Sydney
On Wednesday, however, the government officially launched a two-year pilot of innovative visa reforms that could bring these workers out of the shadows.
A new short-term "workplace justice visa" will allow migrant workers to stay and work in Australia for six months while they pursue a labour claim.
There will also be new visa protections for migrants who want to take action against their employers, but might otherwise have stayed silent because they had breached their visa conditions.
These reforms may go much further than recovering entitlements for individual workers. This matters to us all - when claims aren't pursued, all information about exploitative employers is lost, creating a cycle of impunity.
The innovative structure of these visa protections may substantially expand labour enforcement in Australia.
Why is migrant exploitation so hard to detect?
In previous surveys of thousands of migrant workers, we found three-quarters were paid less than the casual minimum wage. Among underpaid workers, nine in ten told nobody.
Many migrant workers fear that speaking out will jeopardise their current or future visas. And when they reach the end of their stay - and could potentially pursue a labour claim without risking their job or visa - they must swiftly return home.
This problem has existed as long as large numbers of migrants have worked on temporary visas. But the government labour regulator, the Fair Work Ombudsman, has limited enforcement capacity. On top of this, most migrant workers are extremely reluctant to seek its assistance.
In 2017, the federal government attempted to encourage migrants to approach the Fair Work Ombudsman by implementing an "assurance protocol".
Under this scheme, the Department of Home Affairs committed to generally not cancel a worker's visa for breaching work conditions, if that worker was assisting the Fair Work Ombudsman with its inquiries. But it has not been effective, with only around 13 migrants gaining protection each year.
This regulatory failure has broader implications. Exploitative employers have come to expect they will not be held to account. Underpayment of migrant workers has become a successful business model, meaning that in some industries, employers who are doing the right thing become uncompetitive.
It also makes it difficult for businesses to detect wage theft or modern slavery in supply chains because migrant workers will not report it to auditors or the regulator.
Bringing workers out of the shadows
The government's pilot introduces a new temporary "workplace justice visa". This will allow a migrant to stay in Australia while they pursue a labour claim against their employer, which could include for underpayment, workplace injury, sexual harassment or discrimination.
Importantly, there is no application charge and visa holders will have the right to work in Australia while they pursue any claims.
We proposed these reforms in our 2023 Breaking the Silence report (with Sanmati Verma from the Human Rights Law Centre) and participated in a co-design process with the Department of Home Affairs.
Implementing our recommendation, to apply for the visa in the pilot, a migrant must obtain formal certification. This includes evidence they have experienced workplace exploitation and they are committed to seeking redress.
But significantly, it's not just the government who can provide this certification. Other third parties that migrants trust - including community-based legal services, trade unions or university legal services - can also play this role.
This is critical because many migrants would never report directly to government - either because they fear the government of their home country or are simply terrified of jeopardising their precious foothold in Australia. Using third-party certifiers means migrants can be highly confident of qualifying for the visa before an application is lodged.
For affected migrants, this transforms the accessibility of justice.
For example, 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.
Or an exploited backpacker who was about to leave Australia but didn't want to report sexual harassment during their fruit-picking job could stay for an additional six months to hold their employer to account.
A guarantee against visa cancellation
The Department of Home Affairs is now also prohibited from cancelling the visas of some migrants who have breached their work conditions, as long as they've obtained a similar labour claim certification.
For example, an underpaid international student who had worked more than 48 hours a fortnight in breach of their visa - possibly to make ends meet on unlawfully low wages - could now bring a claim against their employer, knowing their visa wouldn't be cancelled because they'd worked too many hours.
Expanding the enforcement of labour law
By permitting workers to obtain certification from trusted third parties, the pilot visa program provides choice and agency in how they assert their labour rights. This is without precedent anywhere else in the world.
Unlike a scheme which depends on government certification of claims alone, this pilot encourages migrants to join unions and equips unions with a new tool to organise and represent them.
Not only will this embolden exploited workers to come forward, it will also expand the universe of labour law enforcement beyond the Fair Work Ombudsman to union and community lawyers.
This sets the new global best practice for countries seeking to realise migrant workers' access to justice and business' accountability for labour exploitation.
Laurie Berg is Co-Executive Director of the Migrant Justice Institute.
Bassina Farbenblum is Co-Executive Director of the Migrant Justice Institute. The reforms discussed in this article were proposed in the Migrant Justice Institute and Human Rights Law Centre's 2023 Breaking the Silence report. The authors participated in a co-design process with the Department of Home Affairs.
