Inquiry terms of reference
On 24 March 2015, the Senate referred the following terms of reference
to the Education and Employment References Committee for inquiry and report by
22 June 2015:
The impact of Australia's temporary work visa programs on the
Australian labour market and on the temporary work visa holders, with
particular reference to:
wages, conditions, safety and entitlements of Australian workers and temporary
work visa holders, including:
whether the programs 'carve out' groups of employees from Australian
labour and safety laws and, if so, to what extent this threatens the integrity
of such laws,
- the employment opportunities for Australians, including:
effectiveness of the labour market testing provisions (the provisions) of the Migration
Act 1958 in protecting employment opportunities for Australian citizens and
permanent residents, and
the provisions need to be strengthened to improve the protection of employment
opportunities for Australian citizens and permanent residents and, if so, how
this could be achieved,
the adequacy of publicly available information about the operation of
the provisions, and
- the nature of current exemptions from the provisions and what effect
these exemptions have on the reach and coverage of labour market testing
obligations and laws regarding wages, conditions and entitlements of Australian
workers and temporary work visa holders;
impact of Australia's temporary work visa programs on training and skills
development in Australia, including:
the adequacy of current obligations on 457 visa sponsoring employers to
provide training opportunities for Australian citizens and permanent residents,
how these obligations could be strengthened and improved, and
the effect on the skills base of the permanent Australian workforce;
temporary work visa holders receive the same wages, conditions, safety and
other entitlements as their Australian counterparts or in accordance with the
the extent of any exploitation and mistreatment of temporary work visa
holders, such as sham contracting or debt bondage with exorbitant interest rate
the role of recruitment agents, and
the adequacy of information provided to temporary work visa holders on
their rights and obligations in their workplace and community, and how it can
temporary work visa holders have access to the same benefits and entitlements
available to Australian citizens and permanent residents, and whether any
differences are justified and consistent with international conventions
relating to migrant workers;
adequacy of the monitoring and enforcement of the temporary work visa programs
and their integrity, including:
- the wages, conditions and entitlements of temporary work visa holders,
cases of 457 visa fraud, such as workers performing duties outside or
below the job classification of the visa;
role and effect of English language requirements in limited and temporary work
the provisions and concessions made for designated area migration agreements,
enterprise migration agreements, and labour agreements affect the integrity of
the 457 visa program, or affect any other matter covered in these terms of
relationship between the temporary 457 visa and other temporary visa types with
work rights attached to them; and
- any related matter.
That in conducting the inquiry, the committee shall review
the findings and recommendations of previous inquiries into such matters,
including the Legal and Constitutional Affairs References Committee's report, Framework
and operation of subclass 457 visas, Enterprise Migration Agreements and
Regional Migration Agreements.
Conduct of the inquiry
Notice of the inquiry was posted on the committee's website. The
committee also advertised the inquiry in The Australian and wrote to key
stakeholder groups, organisations and individuals to invite submissions.
The committee received 64 submissions as detailed in Appendix 1.
The committee held ten public hearings:
18 May 2015 in Melbourne;
12 June 2015 in Brisbane;
19 June 2015 in Melbourne;
26 June 2015 in Sydney;
10 July 2015 in Perth;
14 July 2015 in Adelaide;
17 July 2015 in Canberra;
24 September 2015 in Melbourne;
20 November 2015 in Melbourne; and
5 February 2016 in Canberra.
A list of witnesses who gave evidence at the public hearings is detailed
in Appendix 2.
Extension to the inquiry
During the course of the committee's inquiry, media investigations
raised serious concerns about the exploitation of temporary work visa holders
in Australia (see the background section in chapter 2). Against a background of
continuing revelations relevant to the committee's terms of reference, the
committee sought approval to extend the timeframe for its own inquiries into
these and related matters.
The Senate agreed to five extensions to the inquiry reporting date. On
14 May 2015, the Senate agreed to extend the reporting date to 19 August 2015.
On 11 August 2015, the Senate agreed to extend the reporting date to
14 October 2015.
During this period, the committee focused largely on matters related to the 457
and 417 (Working Holiday Maker or 'backpacker') visa programs.
Following revelations of the exploitation of international students on
temporary visas working across the 7-Eleven network of stores, the committee
agreed to inquire into these matters as well. On 7 September 2015, the Senate
agreed to extend the inquiry with the final report due on 11 February 2016.
The committee held a hearing in Melbourne on 24 September 2015 related
to the employment conditions of temporary migrant workers employed at 7-Eleven.
Prior to the hearing, the committee invited specific submissions from those
witnesses attending the hearing. The committee held further hearings on these
matters on 20 November 2015 in Melbourne and 5 February 2016 in Canberra.
On 30 November 2015, the Senate agreed to extend the reporting date to
25 February 2016.
On 22 February 2016, the Senate agreed to a further extension of the reporting
date to 17 March 2016.
Scope and structure of the report
Although a range of varied and specific matters were raised during the
course of the inquiry, certain themes run across one or more of the temporary
visa programs. The report is therefore divided into five parts:
Part 1 provides an overview of the temporary visa programs;
Part II considers the impact of temporary visa programs on
employment opportunities for Australians and permanent residents;
Part III considers the impact of temporary visa programs on the
training and skills development of Australians and permanent residents;
Part IV considers issues of vulnerability and exploitation
including the wages, conditions, safety and entitlements of temporary visa
Part V considers issues of information, education, regulation and
The report chapters are structured as follows:
Part I: Overview
Chapter 2 Overview of the temporary visa programs. The
chapter provides an overview of the temporary work visa programs and labour
agreements. It then outlines various reviews and reforms, and finishes by
considering the interactions between the various temporary visa programs.
Part II: Employment opportunities
Chapter 3 Impact of the 457 visa program on employment
the responsiveness of the 457 visa program to changes in domestic
the displacement of Australian workers by 457 visa workers;
the role of 457 visa workers in rural industries;
the 'market salary rate';
the Temporary Skilled Migration Income Threshold;
the Skilled Occupation List and Consolidated Sponsored Occupation
the technical competency of foreign workers; and
labour market testing.
Chapter 4 Impact of the Working Holiday Maker (WHM) (417
and 462) visa program on employment opportunities. The chapter looks at both
the WHM visa program and the Seasonal Worker program. It considers the role of
WHM visa workers in horticulture; labour agreements and enterprise agreements
in the meat processing industry; and the impact of WHM visa workers on
enterprise agreements and on employment opportunities for local workers in the
meat processing industry.
Part III: Training opportunities
Chapter 5 Impact of temporary visas on training and skills
development. The chapter looks at the impact of temporary visas on
training and skills development, graduate employment, and future workforce
capacity. It then assesses the effectiveness of the current training
obligations and considers alternative training obligations.
Part IV: Vulnerability and exploitation
Chapter 6 Wages, conditions, safety and entitlements of 457
visa holders. The chapter considers the factors that contribute to the
vulnerability of 457 visa workers. The chapter also examines the extent to
which temporary visa workers are 'carved out' of Australian labour and safety
laws and the barriers that temporary visa workers face in seeking access to
justice. The chapter includes case studies of exploitation from the
construction and nursing sectors.
Chapter 7 Wages, conditions, safety and entitlements of WHM
visa holders. The chapter considers the additional factors that contribute to
the vulnerability of WHM visa holders in the workforce and the role played by
417 visa workers in horticulture and fruit picking. The role of certain labour
hire companies in the exploitation of temporary visa workers is examined with a
particular focus on the labour hire arrangements at Baiada's poultry processing
plants in New South Wales.
Chapter 8 Wages, conditions, safety and entitlements of
international students. The chapter begins by considering the additional
factors that contribute to the unique vulnerability of international students and
undocumented workers in the workforce. The bulk of the chapter examines the
exploitation of international students working at 7-Eleven.
Part V: Information, education, regulation and compliance
Chapter 9 Information, education, regulation and compliance.
The chapter examines the provision of information and education to temporary
visa workers and other stakeholders. The responsibilities of lead firms such as
major supermarkets are considered in helping ensure compliance with workplace
law down the supply chain. The role and powers of the Fair Work Ombudsman are
examined, along with a range of regulatory and compliance measures under the Fair
Work Act 2009 including the penalty regime and the sham contracting and accessory
liability provisions. The issue of the regulation of labour hire companies is
During the course of the inquiry, the committee has benefitted greatly
from the participation of many individuals and organisations located throughout
Australia. The committee thanks all those who assisted with the inquiry,
especially the witnesses who put in extra time and effort to answer written
questions on notice and provide further valuable feedback to the committee as
it gathered evidence.
But most of all, the committee acknowledges the many temporary visa
holders that appeared before the committee to recount their experiences. Many
of these individuals placed themselves in jeopardy in order to expose appalling
and often systemic exploitation. The committee has formed the view that these
individuals were motivated by a desire to see positive change in Australia's
system of temporary visa programs and to ensure that other temporary visa
holders would not endure the exploitation they had experienced. Without their
personal accounts, the committee would not have been able to fully appreciate
the need for a sufficiently robust regulatory and compliance framework to deliver
a temporary visa program that is mutually beneficial for both Australia and for
temporary visa holders.
Note on references
References to the committee Hansard are to the official Hansard with the
exception of 5 February 2016 which is the proof Hansard. Page numbers may vary
between the proof and official Hansard transcripts for 5 February 2016.
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