Labor senators extend their thanks to those who have participated in the committee's inquiry into this bill.
In doing so, we also acknowledge that a legislative response to the exploitation of temporary visa workers in Australia is well overdue, with the Migrant Workers’ Taskforce delivering its report to the Morrison-Joyce Government now over three years ago.
Labor has consistently stated that it supports the implementation of measures that would meaningfully address the scourge of temporary visa worker exploitation in Australia.
It has also been highlighted to us time and time again that the Morrison-Joyce Government should look beyond incremental reforms to how the broader temporary visa worker system can be improved to facilitate swift detection and effective deterrence of exploitation.
Accordingly, these additional comments look at both responses to proposed amendments to the Migration Act 1958 (Migration Act) as well as recommendations for more systemic and structural reform.
As the testimony given to this Committee throughout its inquiry has demonstrated, it is widely accepted that temporary visa workers are, by virtue of their precarious visa status, highly susceptible to exploitation. This testimony is well supported by previous inquiries by the Senate as well as the work of the Fair Work Ombudsman (FWO) and other relevant agencies.
In recognition of this, and after consideration the contents of the bill and submissions made by relevant stakeholders, Labor senators agree that in its current form the bill fails to provide adequate measures to meaningfully prevent the exploitation of temporary visa workers in Australia.
Thus, whilst we support the intent of the bill, we recommend that amendments be made by the Senate to ensure that it is as robust as it needs to be to achieve its own stated objectives.
Overview of the bill
If passed into law, the Migration Amendment (Protecting Migrant Workers) Bill 2021 would make amendments to the Migration Act, to, among other things, establish new criminal offences and civil penalties relating to the exploitation of temporary visa workers.
In particular the bill would establish that coercing a temporary visa worker to engage in work arrangements contrary to their visa conditions is an offence and provide the Minister of Immigration with the power to prohibit certain employers from employing temporary visa workers in cases where breaches have occurred to either the Migration Act or the Fair Work Act 2009.
The bill would also introduce obligations for employers of temporary visa workers to verify the visa status of potential employees and invest new regulatory functions in the Australian Border Force (ABF) to enforce compliance.
The government claims that the bill is responding to recommendations 19 and 20 of the Migrant Workers’ Taskforce Report. These recommendations are, respectively:
(i)
that the government consider developing legislation so that a person who knowingly unduly influences, pressures, or coerces a temporary migrant worker to breach a condition of their visa is guilty of an offence; and
(ii)
that the government explore mechanisms to exclude employers who have been convicted by a court of underpaying temporary migrant workers from employing new temporary visa holders for a specific period.
Whilst legislative action that would give effect to the recommendations of the Migrant Workers’ Taskforce is to be welcomed, Labor senators note that this bill comes three years after these recommendations were first made and that it constitutes a response to only two of the twenty-two recommendations that were made and presented to the Morrison-Joyce Government.
Temporary visa worker exploitation in Australia
Over the course of the past nine years since the Liberal-National Government came to office, Australians have been repeatedly shocked by the cases of exploitation of temporary visa workers that have come to public attention.
It seems all too often that these workers, who come to Australia seeking economic opportunity for themselves and their families, depart abused and underpaid with some employers viewing them as nothing more than cheap and disposable labour.
Whilst it is true that no industry has been free of these cases, it is apparent from successive investigations that agriculture, among all others, is particularly afflicted.
Indeed, Australian parents have been rightly appalled to discover that the fruit in child’s lunchbox may very well have been picked by exploited temporary visa workers, on Australian farms, in what have been described by some as slavery-like conditions.
These investigations, conducted not just by government bodies such as the FWO and Department of Employment, but also by the University of New South Wales, the University of Technology Sydney, the University of South Australia, Unions New South Wales, the Victorian Trades Hall Council, the Migrant Workers Centre and media outlets such as the ABC, the SBS and Nine Newspapers, support the claim made by Professor Allan Fels, Chair the Migrant Workers’ Taskforce, that temporary visa worker exploitation in Australia is both ‘systemic’ and ‘deeply embedded’.
Tabling its report in September 2021, the Senate Select Committee on Temporary Migration (the Select Committee) further illustrated the extent of the exploitation faced by temporary visa workers in Australia.
The Select Committee found that ‘while all Australian workers can be subject to exploitation, temporary visa holders are particularly vulnerable to exploitation in the workplace’.
In explaining the factors contributing to this vulnerability, the Select Committee noted that the lack of information, training and support provided to temporary visa workers regarding Australia’s workplace standards was particularly significant. It heard from witnesses about the fear that exploited temporary visa workers have in reporting the wrongs that they suffer and the belief among many that doing so may come to impact upon their visa status.
Accordingly, the Select Committee made forty recommendations to the Morrison-Joyce Government, each aimed at protecting vulnerable temporary visa workers from exploitation and improving the protections accorded to them under the law, including:
(i)
abolition of the 88-day farm work requirement of the Working Holiday Maker programme;
(ii)
banning employers who exploit workers from employing temporary visa holders;
(iii)
providing whistle-blower protections to those temporary visa workers who report exploitation;
(iv)
establishing a small-claims tribunal to quickly and easily resolve wage theft disputes;
(v)
creating a legal ‘firewall’ between the FWO and the Department of Home Affairs;
(vi)
holding franchisors financially responsible for the underpayment of employees by franchisees; and
(vii)
establishing a National Labour Hire Licensing Scheme to tackle Australia’s system of dodgy labour hire operators.
To date, the Morrison-Joyce Government is yet to respond the recommendations of the Select Committee.
Equally, the Morrison-Joyce Government is also yet to respond to the report of the Senate Standing Committee on Education and Employment following its inquiry on the impact of Australia's temporary work visa programmes on the Australian labour market and on the temporary work visa holders.
This report, tabled in March 2016, found that exploitation was a serious problem for temporary migrants and made several recommendations aimed at improving the protection of temporary migrants in the workplace.
Among these recommendations were that:
(i)
the immigration programme be reviewed and, if necessary, amended to provide adequate bridging arrangements for all temporary visa holders to pursue meritorious claims under workplace and occupational health and safety legislation; and
(ii)
the Department of Immigration and Border Protection review the procedures used in cases involving severe worker exploitation to ensure that a victim-centred approach exists in practice such that the potential victims of people trafficking and slavery-like conditions are afforded an adequate opportunity in a safe and secure environment to report any offences committed against them.
Labor senators express their condemnation of the Morrison-Joyce Government’s lack of response to the recommendations made by these committees and the many others that have investigated this issue over recent years.
We recognize that the members of and contributors to these committees have worked hard to develop recommendations to be put to the Morrison-Joyce Government that would meaningfully improve the circumstances of temporary visa workers in Australia.
We also recognize with regret that whilst the Morrison-Joyce Government has chosen not to implement the recommendations of successive inquiries, the FWO has produced further evidence documenting the exploitative practices of some Australian employers, including:
(i)
the underpayment or non-payment of wages;
(ii)
temporary visa workers being induced to offer payment to employers and third parties for assistance in gaining visa extensions;
(iii)
temporary visa workers being made to work for free in exchange for non-certified accommodation programs; and
Instead, many have observed that decision-making of the Morrison-Joyce Government has in many cases served to compound the problem, as it has built on its record of granting more temporary work visas than any government in Australian history.
Such is the number of temporary work visas being granted that the Intergenerational Report 2021 projected that under the Morrison-Joyce Government’s policies the number of temporary visa holders in Australia will almost double over the next forty years.
Labor senators firmly believe that Australia is a nation built great by migration–namely, permanent migration–and that this is a legacy we should seek to continue.
Nonetheless we lament the increasing ’temporisation’ of Australia’s migration programme, which has led to more and more individuals arriving in Australia who lack certainty and adequate protections under law from those who would seek to exploit their inherent vulnerabilities.
Labor senators also lament that the Morrison-Joyce Government, in full knowledge of this problem, has failed to respond to it in a meaningful or systemic way, instead offering but piecemeal change such as that contained in this bill.
Migrant Workers’ Taskforce
Of recent inquiries into the exploitation of temporary visa workers few are as significant as that of the Migrant Workers’ Taskforce.
The establishment of the Migrant Workers’ Taskforce followed several years of media attention and a range of inquiries on the issue of migrant worker exploitation but was immediately proceeded by the FWO inquiry into the workplace practices of the 7-Eleven franchise network, which identified a culture of non-compliance in a company with a high proportion of employees on temporary (largely student) visas, who were particularly at risk of exploitative work practices.
The Taskforce, chaired by Professor Fels, included a wide variety of government bodies, such as the FWO, the Department of Home Affairs, the ABF, the Australian Tax Office and the Department of Agriculture.
It was charged with identifying proposals for improvements in law, law enforcement and investigation, and other practical measures to identify and rectify cases of migrant worker exploitation.
Following extensive consultation, the Migrant Workers’ Taskforce report was presented to the Morrison-Joyce Government in February 2019 and publicly released on 7 March 2019, along with the Morrison-Joyce Government’s response—accepting in principle all of its recommendations.
The Migrant Workers’ Taskforce Report concluded there to be a number of factors which contribute to the vulnerability of temporary visa workers to exploitation, including:
(i)
limited English language skills and a lack of knowledge of workplace laws and standards;
(v)
fear of visa cancellation and a willingness to accept below-award wages;
(vi)
remoteness of working location;
(vii)
business models that rely heavily on labour hire companies; and
(viii)
franchise models that make it difficult for franchisees to run a profit without underpaying wages.
Despite the Morrison-Joyce Government’s response announcing its acceptance of the Taskforce’s recommendations three years ago, little has been achieved by way of their implementation.
Labor senators recognize the disappointment this has generated for many stakeholders who had desperately hoped the report would finally lead to timely legislative action on this important issue.
Concerns with the current bill
As successive inquires and testimony to this inquiry have highlighted, the systemic nature of the exploitation of temporary visa workers in Australia requires the implementation of a systemic response.
While Labor senators are supportive of any attempts to address the exploitation of temporary visa workers, we are concerned that the bill does not address the key factors contributing to the broader problem of worker exploitation.
Labor senators support the concerns of a significant number of stakeholders who highlighted these issues with the bill, including:
(i)
the prevalence of exploitation far exceeds the level of law enforcement resources available to effectively disrupt and deter entrenched, systemic non-compliance;
(ii)
barriers for people who have been exploited to come forward, report exploitation and assist in the subsequent investigation and prosecution of the employer;
(iii)
whistleblower protections for people who have reported exploitation;
(iv)
application of sanctions on employers engaged in exploitation in a timely manner to disrupt and deter entrenched, systemic non-compliance;
(v)
assurance that workers who report exploitation will not face immigration related consequences and that migrant workers who have been unknowingly engaged by a prohibited employer being protected from any adverse immigration outcome owing to the engagement;
(vi)
greater collaboration between the Department of Home Affairs, FWO and unions to regularly monitor prohibited employers; and
(vii)
reform to a number of linked areas that would prevent and address temporary visa worker exploitation, through the introduction of a simple, quick and accessible way to resolve wage theft, a national labour hire licensing scheme, strengthening of the Modern Slavery Act, including through the introduction of penalties and independent oversight in the form of a commissioner with inspection powers.
Necessary improvements
In order to improve the effectiveness of the bill we consider the below amendments as suggested by participants to the inquiry to be necessary.
Taken together, we believe these amendments would serve to provide a more adequate response to the scourge of temporary visa worker exploitation, rather that the piecemeal response provided by the bill in its current form.
Who should hold the power to issue employer prohibition notices
The bill should be amended to extend the power to issue employer prohibition notices to the FWO.
Several submitters raised concerns regarding who should hold the power to issue employer prohibition notices—with the bill currently reserving this power to the Minister alone.
Speaking on this concern, the Migrant Justice Initiative said given the FWO ‘holds significant intelligence regarding employer compliance (and non-compliance) activity’ it is reasonable to presume that ‘these provisions will operate more efficiently if FWO also has the power to make declarations’.
Whilst Labor senators accept that the Migration Act does generally err towards empowering the Minister in matters concerning migration generally, given the nature of this particular matter being more concerned with workplace conduct, we regard it as appropriate that the power also be extended to the relevant regulatory body.
The importance of a ‘firewall’
The bill should be amended to establish the creation of a firewall between the Department of Home Affairs and the FWO that would prevent the provision of information from the Ombudsman to the Department, except where it was used to facilitate the prosecution of employers for exploitation of their workers.
As the Salvation Army Australia and Uniting Church of Australia Synod of Victoria and Tasmania submission highlights:
…the Assurance Protocol would be extended to create a firewall, a policy mechanism that effectively separates immigration enforcement activities from public service provision so that people can access basic services and protections without fear of immigration-related repercussions, such as arrest, detention and removal.
The Australian Council of Trade Unions also highlight the requirement for better protections stating:
…there must be a firewall between the Department of Home Affairs and the Fair Work Ombudsman that prevents the provision of information between the Ombudsman and the Department (except to facilitate the prosecution of employers for worker exploitation) to guarantee that migrant workers who report exploitation will not face immigration-related consequences.
Visa protection for whistle-blowers
The bill should be amended to include measures supporting temporary visa workers with a credible claim of workplace exploitation or unscrupulous conduct by their employer will not breach work-related conditions and suffer immigration consequences.
Whistle-blower protections should protect workers from making complaints and providing evidence to an investigation while their case is heard by the FWO or the relevant court, they assist the Fair Work Ombudsman with an ongoing investigation.
The bill should be amended to provide visa certainty to temporary visa workers with a credible claim of workplace exploitation or unscrupulous conduct by their employer.
Successive inquiries have articulated the need to provide exploited temporary visa workers certainty in their visa status should they come forward and report this exploitation and that the lack of such certainty serves to prevent such workers from making these report.
Whistle-blower protections should be included in the bill that would protect such workers while their matter is progressed by the FWO or other relevant body.
Definition of ‘domestic work’
The bill should be amended to ensure that the definition of ‘domestic work’ does not unintentionally exclude au pairs and other like workers from its protections.
Labor senators accept that provisions must be included in the bill to provide employers for whom prohibition notices have been issued the ability to continue to engage contracted workers, such as tradesperson, on an ad hoc basis.
Nonetheless the bill must ensure that au pairs and other like workers whose work could also be described as ‘domestic’ not be included in these provisions.
Definition of ‘persons’ and its applicability to non-employers
The bill should be amended with respect to clauses 245AAA and 245AAB to clarify that these provisions should only apply to employers.
Whilst Labor senators note that the Explanatory Memorandum for the bill states that clauses 245AAA and 245AAB are applicable only to ‘employers, labour hire intermediaries and other persons in the employment chain’—concerns have been raised with regard to the broad definition of ‘persons’ used in the bill and the unanticipated applicability of this definition to others.
The Law Council of Australia, for example, stated in its submission to the Committee:
there is nothing in the drafting of the Bill to confine the person who exerts coercion to be involved in the employment chain in the way suggested by the Bill; these clauses could feasibly apply to a family member, friend or acquaintance.
For the avoidance of doubt and the provision of certainty this concern should be addressed in changes to the bill.
Prohibited employer monitoring regime
As the Migrant Workers Centre outlined in their submission ‘[a]n effective way to stop prohibited employers from exploiting additional migrant workers is to actively monitor them’.
The bill should be amended to support the monitoring of prohibited employers through arrangements with unions, FWO and the Department of Home Affairs.
Recommendation
That amendments be made to the bill in accordance with those outlined in these additional comments.
Senator the Hon Kim CarrSenator Raff Ciccone
Deputy ChairSenator for Victoria
Senator for Victoria