This chapter considers proposed improvements to the current regulatory settings that impact temporary migrants working within Australia, as well as whether an appropriate balance is currently being struck between enforcement and educative activities. The settings in Australia's temporary migration framework are complex, with responsibilities lying within multiple Australian Government departments. While the Fair Work Ombudsman (FWO) takes a leading role in ensuring that temporary visa holders are protected under Australia's workplace relations system, no one department has responsibility for managing regulations and other laws that are relevant to temporary visa holders.
Proposed changes and improvements
Many submitters noted that the current regulatory framework is overly complex and onerous, creating confusion and unintended consequences for temporary visa holders working in Australia. This section of the report considers particular concerns about the FWO, the small claims process, and the powers of the Fair Work Commission (FWC).
The Fair Work Ombudsman
This section considers whether the powers and resourcing of the FWO are at appropriate levels. Additionally, it also examines the effectiveness of the Assurance Protocol that is current in place between the FWO and the Department of Home Affairs (Home Affairs).
Appropriateness of powers
Despite recent increases to the FWO's evidence-gathering powers, the Report of the Migrant Workers' Taskforce ultimately recommended that the government consider strengthening of the FWO's remit. In exploring the rationale behind these recommendations, the Report of the Migrant Workers' Taskforce stated that 'strong enforcement response should be continued' and that the FWO 'must be adequately resourced and have the right mix of tools and powers to undertake its functions under the Fair Work Act'.
A number of witnesses were concerned that the FWO was not appropriately empowered to act in the best interests of exploited temporary visa holders. Appearing before the committee, Professor Allan Fels AO detailed a vision for a stronger FWO, which would be renamed to reflect this role:
There should be enforceable undertakings, an ability to get injunctions, much better compliance arrangements, improved accessorial liability and better small-claims processes. A lot of the claims are small, and we think more should be done to facilitate small claims going through quickly. We recommended a stronger Fair Work Ombudsman, some more resources, some firmer approaches. We recommended that we should think about renaming it. The name 'Fair Work Ombudsman' doesn't convey the sense of a serious, tough law enforcement body; it's more a friendly, almost cuddly thing.
The Report of the Migrant Workers' Taskforce also recommended that the name of the FWO be changed to better reflect its regulatory role, as this would 'enhance awareness of the workplace regulator which would boost its effectiveness in preventing wage exploitation'.
Associate Professor Bassina Farbenblum and Associate Professor Laurie Berg (Farbenblum and Berg) further noted that the FWO, as it currently operated, was not fulfilling the role expected of it by temporary visa holders who were contacting it for assistance. Farbenblum and Berg subsequently recommended that the FWO ought to be granted increased resources to identify, investigate, and carry out enforcement activities against employers that are underpaying temporary visa holders.
Farbenblum and Berg also highlighted the FWO's lack of power to compel employers to attend mediations, proposing that an increase in this power could improve the FWO's enforcement abilities:
At a legislative level, power should be granted to enable the FWO to compel an employer to participate in mediation and/or rectify underpayment. If the FWO were to make determinations or issue Compliance Notices against employers that do not participate in mediation or rectify underpayment, this could be presented in court as evidence in favour of a worker's claim or create a presumption in favour of a worker.
Farbenblum and Berg further recommended that 'substantial reforms should be implemented to strengthen the FWO's independent investigation and enforcement functions to ensure that detection of wage theft is not unduly reliant on worker reporting', which was viewed as necessary due to the diminishing powers of unions.
Kingsford Legal Centre, Redfern Legal Centre International Student Service NSW and Migrant Employment Legal Service proposed that the FWO ought to be empowered to issue Assessment Notices that set out an employee's entitlements, which would include 'a reverse onus of proof so that an applicant is taken to be entitled to the amount specified in an Assessment Notice unless an employer proves otherwise'. The organisations also noted the importance of employers being compelled to attend FWO mediations, as employers being unwilling to appear in such proceedings was a significant cause of stymied FWO investigations. The organisations also recommended that the FWO have powers to make binding determinations where mediation is unsuccessful in order to further facilitate cost-effective and efficient resolution of entitlements disputes.
Mr Daniel Walton, National Secretary of the Australian Workers Union, told the committee that there is a lack of enforcement in the workplace relations area and that the FWO is not currently effective in its role. Mr Walton stated:
… when the Fair Work Ombudsman went back to investigate the same employers who they already found breaching a number of these conditions outlined, 60 per cent of them were still doing it. There's a lack of enforcement or accountability. When they do get identified, the fear of any repercussions isn't sufficient to deter or change behaviour.
The 2019 Report of the Migrant Workers' Taskforce specifically recommended that the FWO be given further resourcing, tools and powers to undertake its functions under the Fair Work Act 2009. The recommendations resulted in a degree of increased funding for the FWO to undertake some of its functions. Appearing before the Committee, Ms Kristen Hannah, Deputy Ombudsman, Policy and Communication, FWO, outlined the additional funding that the FWO had received from the Australia Government in the 2019-20 and 2020-21 financial periods:
For 2020-21, our appropriation is $144.424 million. Over the previous years we had some new measures announced in the 2019-20 MYEFO budget, and this is relevant to migrant workers. That was $6.416 million for the extension of the Seasonal Worker Program. And not necessarily related, $1.267 million to develop a streamlined Employ Your First Person tool. In the 2019-20 budget we were given $1.577 million to further enhance the Seasonal Worker Program, $9.245 million to establish a dedicated sham contracting unit, and $25.8 million related to the Migrant Workers' Taskforce recommendations, which is what I think you're referring to; $8.465 million to enhance our compliance capability; $2.331 million to provide further education and resources. Ms Peters has talked to some of that already. And also $15.004 million to establish a national labour hire registration scheme.
A number of submitters were also concerned that the FWO is not adequately resourced to carry out its duties. Be Slavery Free noted that an increase in funding was needed for FWO to be able to investigate and enforce laws that are already in place, as did the Migration and Refugee Research Network. The University of Melbourne Graduate Student Association submitted that continued funding should to be provided specifically for education initiatives on international students' workplace rights.
The Australian Catholic Religious Against Trafficking in Humans (ACRATH) outlined how, while the current increases in funding to the FWO were encouraging, more funding was required in order for the FWO to proactively pursue unscrupulous businesses. The Kingsford Legal Centre, Redfern Legal Centre International Student Service NSW and Migrant Employment Legal Service likewise submitted that the FWO ought to be adequately funded so that it can be more proactive in its role:
It is essential that agencies take proactive measures in key industries and locations where there is suspected widespread exploitation. Such measures should include inspection of records and actions to recover any discovered underpayments. FWO has undertaken such initiatives in the past, and more extensive and regular initiatives would be beneficial.
Kingsford Legal Centre, Redfern Legal Centre International Student Service NSW and Migrant Employment Legal Service also noted that further funding the FWO would allow the Ombudsman to increase its role to include the inspection of records and further actions to recover any discovered underpayments, which the Ombudsman has undertaken in the past but is not currently a routine part of its activities.
WEstjustice Community Legal Centre, Springvale Monash Legal Service and JobWatch likewise submitted that increased funding to the FWO would 'enhance outcomes for the most vulnerable' and that such funding would allow for the Ombudsman to be more proactive in its role. The submitters subsequently recommended that the FWO ought to be given additional resources to 'identify, investigate, and carry out enforcement activities against employers that are underpaying workers, particularly migrant workers'.
Mr Walton, Australia Workers Union, described to the committee how a lack of funding for the FWO could lead to unlawful workplace conduct continuing:
There's a distinct lack of resourcing. The common analogy idea is: if you get the Fair Work Ombudsman to disclose that there's an investigation into your industry, the chances of them swinging back around in the next decade are slim to none. As a consequence, there's no great desire to change and break those behaviours. If there were more resources for the Fair Work Ombudsman, I think that would be a good step in the right direction.
Dr Mark Zirnsak, Senior Social Justice Advocate, Uniting Church in Australia, Synod of Victoria and Tasmania, similarly expressed the view that, while the FWO were 'trying to use their resources to maximum effect', 'the scale of the problem outweighs their resources'.
Appearing before the Committee, Dr Stephen Clibborn stated that the FWO 'are not, and never have been, adequately resourced to perform the function that is demanded of them'. Dr Clibborn elaborated on this point:
Their current appropriation is just over $144 million, which returns them almost to their revenue from government in 2009-10. In that 10-year period they have had a dip to a low in 2015 and then a slow increase to the current appropriation. Unfortunately, over that time, there has been about a 19 per cent increase in the Australian workforce, so their funding per worker, if you will, has dropped considerably; and, over this period, noncompliance with employment laws has, it seems, been increasing. The Fair Work Ombudsman themselves have noted their newish role as a corporate regulator, which increases the demands on their resources. … The short answer to that question is no, they are not adequately resourced.
Some submitters noted the 2016 recommendation of the Senate Education and Employment References Committee, which, recommended a review be conducted by an independent panel, of the settings around the FWO and 'the adequacy of the resources of the Fair Work Ombudsman'. The Australian Government has not provided a response to this report and the recommended review.
The Assurance Protocol
Some witnesses were not satisfied that the Assurance Protocol that is currently in place between the FWO and Home Affairs was operating as a sufficient protection for temporary visa holders. In their submission to the inquiry, Farbenblum and Berg noted that the protocol was ineffective due to a number of shortcomings:
First, it does not provide a guarantee that the DHA will not cancel the international student's visa. Rather, it indicates only that DHA 'will generally not' cancel a visa, detain or remove from Australia a visa-holder who has met the eligibility requirements of the protocol. Second, it affirmatively requires the FWO to pass on the worker's information to the DHA to obtain this potential protection from visa cancellation. For many international students, fear of visa loss extends beyond a fear of losing their current visa to a fear of jeopardising their prospect of obtaining a future visa including permanent residency for which the protocol provides no assurance. Third, the protocol only applies to a visa holder who seeks the assistance of the FWO and then assists the FWO with its inquiries, which a worker may not have the time or inclination to do. Finally, the protocol only applies to a worker whose visa permits work in Australia. It does not apply to workers on a Visitor visa or those who have overstayed their visa, who are often most vulnerable to exploitation and most likely to remain silent in the face of exploitation.
Kingsford Legal Centre, Redfern Legal Centre International Student Service NSW and Migrant Employment Legal Service were of the view that the Assurance Protocol needed to be strengthened to protect exploited temporary visa holders. The organisations were concerned by the lack of publicly available detail regarding the operation of the Assurance Protocol. The organisations further submitted that clients hold fears of visa cancellation occurring in the event of making a report of workplace exploitation.
WEstjustice Community Legal Centre, Springvale Monash Legal Service and JobWatch likewise recommended that the Assurance Protocol ought to be strengthened, and submitted that 'our clients have expressed reluctance to report to the FWO without a guarantee or "something in writing" that they will not have their visa cancelled'.
At a public hearing of the committee, Home Affairs acknowledged that the Assurance Protocol could not be characterised as 'complete immunity':
Of course the department would encourage anyone who feels that they are being unfairly treated at work to come forward to the appropriate authorities, including the Fair Work Ombudsman, and there is a mechanism under which, if that happens and if the individual involved agrees to both cooperate with the investigation and to give undertakings not to engage in further illegal work, it is possible for them to not have their visa cancelled. But, as you identified, if as part of that there are other grounds identified, be they security, fraud or others, then there are other decisions that need to be made. So it's not a complete immunity, but it's certainly there as part of recognising that we want people who are feeling that they're being unfairly treated to be able to come forward and avail themselves of the services and support offered by the Fair Work Ombudsman.
The 2019 Report of the Migrant Workers' Taskforce questioned whether the current Assurance Protocol was the most effective mechanism, ultimately recommending that Home Affairs 'undertake a review of the Assurance Protocol within 12 months to assess its effectiveness and whether further changes are needed to encourage migrant workers to come forward with workplace complaints'.
In giving evidence to the committee, Dr David Cousins AM described the rationale behind this recommendation:
I think everyone agreed that the protocol was useful. The question was whether it could be more effective. The task force did agree that the protocol should be reviewed. That was done by the Fair Work Ombudsman and the Department of Home Affairs—in other words, the parties to the protocol—and they concluded that the protocol had been useful. It had encouraged a small number of people to come forward. But, in a way, at the end of the day, that was encouraging but not entirely convincing. The review didn't, for example, find out the views of those that hadn't used the protocol and whether they thought it was encouraging or not. The Migrant Workers Taskforce recommended that there be another review of the protocol within 12 months.
Dr Cousins further noted that, while the Australian Government had accepted the recommendation, he was not aware of any review that had taken place in the 18 months since the Report of the Migrant Workers' Taskforce was completed.
Farbenblum and Berg submitted that a firewall would be a more effective mechanism than the current Assurance Protocol:
If the government is genuinely committed to creating an incentive for workers to report wage theft and exploitation to FWO, it must establish a robust firewall between the FWO and the DHA. The firewall must prevent the FWO from sharing with the DHA any identifying information of a temporary migrant who seeks the agency's assistance unless the FWO obtains the migrant's informed consent. It should extend not only to workers whose visa permits work (such as international students) but also to workers whose visas prohibit work or who have overstayed their visa in Australia.
The Migrant Workers Centre likewise recommended that a 'clear and strong firewall' should be 'created by making comprehensive improvements to the existing Assurance Protocol to protect wage theft victims and whistle-blowers'. It was the Migrant Workers Centre's view that only such a firewall would provide sufficient protections to migrant workers who are victims of wage theft and who are whistle-blowers. Unions NSW also recommended that a firewall be instituted, as did Jesuit Refugee Service Australia and Dr Stephen Clibborn.
In the absence of such a firewall, Farbenblum and Berg recommended that the existing Assurance Protocol be strengthened to include an 'absolute assurance' against visa cancellation for those who meet the criteria, as well as other protections for temporary workers who report wrongdoing in order to ensure that they will not be disadvantaged if and when they apply for future visas'.
Additionally, Farbenblum and Berg suggested that a new protocol should be implemented under which Home Affairs officers are required to provide automatic referrals to FWO for individuals engaged in unauthorised work upon detection by Home Affairs and prior to removal. They submitted that this change would ensure that the FWO receives critical intelligence of some of the most egregious instances of underpayment and other breaches of the Fair Work Act 2009, as providing workers with an opportunity to secure fair pay for work undertaken in accordance with the Fair Work Act 2009.
As an alternate model, the United Workers Union proposed the creation of a new visa for temporary or undocumented migrant workers pursuing remedies through the Fair Work Act 2009 or other causes of action for unpaid wages and other breaches of law, which it argued already has a precedent in the current visa system:
The Criminal Justice visa provides a ready template for the creation of an Employment Justice visa, and either the Fair Work Ombudsman or the Federal Circuit Court may be empowered to issue a 'temporary stay certificate' certifying that a worker's ongoing presence in Australia is required for the conduct of their proceedings.
The small claims process
A number of submitters raised concerns about the ineffectiveness of the small claims process and the inability of exploited temporary visa holders to seek legal recourse to recover unpaid wages and entitlements. Regarding immediate changes, Unions NSW recommended that filing fees for applications involving wage theft in any court with small claims jurisdiction ought to be immediately be reduced to be equal to the FWC application fees, as well as recommending that the small claims process be reformed by creating a new mechanism within the FWC.
The Kingsford Legal Centre, Redfern Legal Centre International Student Service NSW and Migrant Employment Legal Service noted that 'the small claims procedure in the Fair Work Division of the Federal Circuit Court has the benefit of a court process that is quicker, cheaper and more informal than regular court proceedings'. However, the organisations also submitted that the small claims system had substantial difficulties for potential litigants:
… the process of completing the relevant forms, performing complex underpayment calculations and self-representing in court for persons of [culturally and linguistically diverse] backgrounds can still be prohibitively complicated. Claims in this division are also capped at $20,000 and employers cannot be ordered to pay penalties.
… We have found that people who hold temporary visas sometimes do not initiate legal proceedings because they know they will not be in the country long enough to see the end of their court process. Legal proceedings are too long to allow them to recover their underpaid entitlements.
The Kingsford Legal Centre, Redfern Legal Centre International Student Service NSW and Migrant Employment Legal Service subsequently recommended that the Australian Government establish a new wage theft tribunal that 'facilitat[es] individual wage recovery via mediation and enforceable orders, based on the applicant-led model for bringing unfair dismissal claims at the Fair Work Commission'. The organisations also recommended that the jurisdictional limit of the small claims jurisdiction of the Fair Work Division of the Federal Circuit Court of Australia be increased from $20,000 to $30,000.
WEstjustice Community Legal Centre, Springvale Monash Legal Service and JobWatch likewise recommended that the Australian Government ought to establish a new wage theft tribunal or, alternatively, make current court processes quicker and simpler. The organisations described their concerns with the current small claims system:
The legal pathways to wage recovery are costly, require significant effort and are risky for the migrant worker's visa status. There is no current, effective pathway providing access to justice for individual migrant workers to recover their wages that is timely, affordable and easy to understand.
Farbenblum and Berg also raised the issue of temporary visa holders having access to an effective wage recovery forum. Farbenblum and Berg noted that, at present, there is no such mechanism, as the FWO does not provide an individual wage recovery mechanism. Farbenblum and Berg submitted that temporary migrants seeking to recover lost payments and entitlements are faced with limited information and resources.
Further to this, Farbenblum and Berg submitted that, despite the small claims process existing, few temporary migrants utilise this mechanism to recover lost wages. Farbenblum and Berg subsequently recommended that a new specialised forum ought to be instituted, through which employees including temporary visa holders can seek to recover unpaid wages and entitlements. This forum would sit within a new independent jurisdiction or within the FWC.
In the absence of a new forum, Farbenblum and Berg proposed a series of reforms that could make the small claims jurisdiction more effective and accessible. These reforms included:
increased jurisdictional limit of the small claims jurisdiction of the Fair Work Division of the FCCA from $20,000 to $30,000;
establishment of a dedicated list for underpayment-related matters, ideally with a specialist set of federal judges;
ability to group complaints, join applications or file representative proceedings where the aggrieved workers are employed by the same employer entity or corporate group, which would substantially reduce the resources required by service providers to represent each individual worker;
prescribed time-frames to ensure claims are dealt with expediently, which is important for migrant workers whose visa will soon end;
changing current costs rules so that legal costs can be awarded to a worker whose claim is successful or where the employer does not participate in mediation;
provision for penalties against employers;
reducing evidentiary burdens on workers, for example by drawing an adverse inference against an employer who does not cooperate with the FWO or fails to comply with FWO sanctions; and
expanded remedies available to include compensation for financial loss, hurt, humiliation and distress as well as orders designed to achieve systematic reform, such as training for employers and penalties for egregious employer behaviour.
Appearing before a public hearing of the committee, Associate Professor Farbenblum outlined how such reforms to the small claim process ought to sit within a series of reforms to the industrial relations context in Australia:
Second, establish an accessible and effective wage recovery forum. The courts are rarely utilised by migrant workers, primarily because they're inaccessible in practice. Third, improve legal services for migrant workers to bring claims, including services provided by education institutions for international students. Fourth, empower unions to assist and represent migrant workers. This will enable uncovering of wage theft, pressuring employers to comply with the Fair Work Act and supporting workers to claim unpaid wages. And, fifth, introduce legislative amendments to extend accountability for exploitation throughout supply chains, along with other measures outlined in our submission.
Proposed extension of Fair Work Commission's powers
A number of submitters proposed that the FWC's powers ought to be extended in order to combat pervasive issues of worker exploitation. Unions NSW proposed that the FWC should be invested with the power to decide on wage underpayment disputes, as this 'would provide a more simplified path and relieve temporary migrants of the onus to enforce their rights through the lengthy, expensive and complex court system'.
WEstjustice Community Legal Centre, Springvale Monash Legal Service and JobWatch submitted that the FWC ought to be given the power to make Minimum Entitlements Orders and Independent Contractor Status Orders. The organisations explained their reasoning:
This power would enable the FWC to make determinations that certain classes of workers are to be treated as employees, and that protections in the FW Act, or an award or enterprise agreement apply; or alternatively, that certain workers are to be treated as genuine contractors.
Farbenblum and Berg proposed that a new wage recovery forum could be associated with the FWC or, alternatively, be a new, independent body. Farbenblum and Berg outlined what key features would characterise this new forum:
accessible to migrant workers including well-resourced individualised assistance to calculate wage claims, along with legal advice and representation;
the ability to deliver remedies swiftly (e.g. resolution of claims within 90 days);
evidentiary presumptions in the worker's favour in the absence of payslips or in the context of widespread patterns of fraudulent recording of wages or hours worked;
the ability to group complaints or file representative proceedings on behalf of multiple workers; and
standing for unions to file proceedings on behalf of members.
Balance between education and enforcement
This section considers how the Australian Government balances enforcement and education activities with regard to temporary visa holders and their employers. The use of both education and enforcement is critical to ensuring that temporary visa holders are protected and that employers do not take advantage of a workforce unfamiliar with Australian workplace laws. Indeed, the Australian Chamber of Commerce and Industry specifically noted the importance of confidence in the temporary visa programme being increased through an 'active compliance program of education and enforcement'.
Activities undertaken by the Fair Work Ombudsman
The FWO undertakes many activities that are designed to assist temporary visa holders, other workers, and employers to understand their rights and responsibilities under Australian employment law. In its submission to the committee, the FWO outlined how it is seeking to actively work with migrant communities. The activities undertaken at the time of the submission include:
community engagement strategies (such as the International Students, Korean-Australians and Chinese-Australians, and the Tasmanian Multicultural Engagement Strategy);
providing relevant intermediaries (migrant resource centres, job active providers, university coordinators and ambassadors) with information about our resources and services;
using intermediary networks to access opportunities to present or meet with migrant workers and employers directly (for example international students and embassies) to provide education about Australian workplace laws;
working with Adult Migrant English Program and international education providers, and contributing to new resources for international students, education providers and education agents, through engaging with the Department of Education;
engaging with Community Legal Centre Employment Law Services to explore opportunities for better information sharing and opportunities to support migrant workers; and
administering the Community Engagement Grants Program to support not-for-profit community organisations and assist them with providing advice and help to vulnerable people, including migrant workers, about workplace issues.
The FWO's website also hosts a dedicated webpage for temporary visa holders with information about pay, conditions and how to get help with workplace issues. This also includes information about visa protections. Additionally, the FWO has also developed a suite of in-language resources to help temporary visa holders understand their workplace rights and obligations in over 30 languages, including:
the In-Language Anonymous Report Tool in 16 priority languages (in addition to English), which has greatly increased the proportion of tip-offs from migrant workers;
translated metadata for in-language online resources in 30 languages (November 2019), to enhance search engine optimisation and allow them to be more easily found through search engines;
the Horticulture Showcase, which contains information for growers and workers in the horticulture and viticulture industries and includes both an automatic translator functionality and a visual piece work agreement for low literacy workers;
new resources translated into languages for migrant workers, including the translation of the FWO's suite of low literacy storyboards and animatics into languages for Pacific Islanders working in Australia through Australia's Pacific Labour Mobility initiatives; and
an automated website translator which offers machine translation with customised dictionaries (for specific industrial relations terms), currently available in 36 languages.
Appearing before the committee, Ms Kristen Hannah, Deputy Ombudsman, Policy and Communication, FWO, explained how the FWO's education and compliance tools are utilised:
In addition to our communications campaigns, we work with intermediaries like community organisations to deliver information sessions and workshops so that our information can be shared better with communities. Our online anonymous report tool is available in 16 languages and is promoted through these sessions for those who are not willing to contact us directly. Our education is backed up by a strong enforcement capability and an increased use of our enforcement tools. Matters from visa holders are prioritised due to the vulnerability of this cohort and are more likely to have compliance action taken through enforcement tools and other matters.
Ms Louise Peters, Executive Director, Engagement Branch, FWO, also outlined to the committee how the FWO engages with community organisations, including unions and community legal centres:
We do a lot of work with embassies, consulates, community organisations, community legal centres and the like to try to, through those channels and networks, increase awareness of the Fair Work Ombudsman, increase awareness of their basic rights and reinforce the message that they do have the same rights and entitlements as Australian workers. We encourage them to come to the Fair Work Ombudsman. We also provide a bit of information about what might happen if they come to us. … It's all aimed at breaking down the barriers, increasing awareness of rights and how to get help if they need it.
While the FWO has been undertaking this educative role, submitters to the inquiry raised concerns that the FWO was not striking an appropriate balance between educational activities and the enforcement of Australia laws. The Report of the Migrant Workers' Taskforce noted the FWO needs a 'much stronger enforcement response than has been evident to date' due to 'the scale and entrenched nature' of worker exploitation.
Dr David Cousins AM raised the issue of the FWO's need to emphasise enforcement rather than education, and the confusion surrounding the Ombudsman's future direction:
Certainly in terms of the culture of the organisation that is an area where we felt there did need to be change. That is, emphasis on the enforcement as opposed to the education side of things really needed to be raised. There have been some changes made, but it's not clear that that is happening. … Should the FWO be directed, for example, in trying to achieve a balance between parties? Should it really be more focused on worker protection? Should it really be called a 'fair work regulator' rather than the 'Fair Work Ombudsman'? There are those sort of questions.
Ms Hannah, FWO, told the committee that the Ombudsman viewed education and enforcement as 'complementary tools'. Mr Steven Ronson, Executive Director, Compliance, FWO, described how the FWO assessed what kind of response a complaint ought to result in:
I think in response to your question about the balance, it's probably important to frame it within our compliance and enforcement policy, which is a publicly available document. When we receive requests for assistance, the first step is to assess the matter and to assess the severity of the non-compliance. These are allegations. We form an opinion as to what has happened or what may have happened. Also, in conversations with in this particular case the visa holders it's determining what sort of assistance they want. … There's a range of considerations at that entry point where we determine what the best response is.
In addition, Mr Ronson explained that unless workplace participants are prepared to go on the record, ‘it is very difficult to investigate to a point where we can evidence contraventions’. Mr Ronson highlighted that as a regulator:
We have to move beyond assertion, beyond allegation. Our role as a regulator is to, if you like, conduct an investigation effectively to search for the probative of truth. We need to be able to source evidence that we can take and assess and then determine the appropriate enforcement outcome.
Mr Ronson also further noted that, since the publication of the Report of the Migrant Workers' Taskforce in March 2019, the FWO had heeded the recommendations in the report and increased the issuance of compliance notices and 'tried to respond to the critique that perhaps we were erring too much on the side of education'.
Mr Mark Scully, Deputy Fair Work Ombudsman, Compliance and Enforcement, FWO, advised that there had been an increase in the number of enforcement tools that the FWO are issuing which have been significantly higher than in previous years. Mr Scully explained that:
For example, the main tool we issue is a compliance notice: in 2018-19 we issued around 270 compliance notices, in 2019-20 we issued 902 and this year we will issue more than 2,000. So there's been a significant increase and tightening of our enforcement posture.
Activities undertaken by other agencies
A number of other agencies also undertake activities in this area, that attempt to strike a balance between education and enforcement within the programmes administered. This section outlines a selection of activities undertaken by other government agencies, as well as evidence received that considers further improvements that could be made in this space.
Department of Education, Skills and Employment
The United Workers Union praised the best-practice employer registration and worker education requirements in the Seasonal Worker Programme, which is administered by the Department of Education, Skills and Employment. The United Workers Union recommended making these practices mandatory requirements in all temporary visa programmes. The union noted that the Seasonal Worker Programme protections for the temporary visa holders from Pacific countries who work on farms across Australia, which include:
mandatory worker rights education for all workers pre-departure and on-arrival in Australia, including a requirement that the employer invite trade unions to meet workers before they commence work; and
a registration process that requires Federal Government approval to employ temporary migrant workers.
Additionally, there is a strong focus on enforcement: employers who have breached workplaces laws are suspended from the programme pending the satisfactory remediation of any breaches, and employers who fail to comply lose their ability to employ workers under the scheme.
Department of Foreign Affairs and Trade
Regarding the Pacific Labour Scheme (PLS), which is administered by the Department of Foreign Affairs and Trade(DFAT), DFAT has a graduated set of responses to address non-compliance by approved employers, which range from further education and monitoring, to suspension or expulsion from the scheme.
DFAT, through the PLS, also receives funding as part of Australia's Official Development Assistance to undertake education and compliance activities with approved employers that take part in the scheme. DFAT submitted that it has measures in place to increase PLS worker knowledge and familiarity with Australian workplace conditions, which includes a briefing prior to departing for Australia and an induction commencement of employment in Australia.
DFAT, through the Pacific Labour Facility, also as a 24-hour emergency phone line for temporary visa holders to access, which provides 'practical support such as financial literacy, banking services and remittance transfers'. DFAT is further encouraging partner governments in the Pacific and Timor-Leste to appoint liaison officers in Australia to provide a range of support including 'pastoral care, incident management, employer engagement and assistance to returning workers'.
Department of Home Affairs
Home Affairs and the FWO work on a number of communication campaigns that aim to increase awareness of Australia's workplace laws among temporary visa holders, as well as educating employers about their obligations.
During the COVID-19 pandemic, Home Affairs has had an increased focus on prevention and education activities. Ms Justine Saunders, Deputy Commissioner, Operations, Australian Border Force, described to the committee how education and prevention was currently being undertaken by the department:
… in terms of the targeted operational activity that we do, there is a very strong focus on education. As I touched on, that is education both for the employer and for those that are travelling on the visas. In 2019-2020 we have undertaken a number of employee sanction awareness visits. We have issued illegal worker warning notices on 19 occasions. We've undertaken a number of joint agency enforcement activities and referrals to partner agencies. Key to all that has been the prevention and education piece. When we are engaging in these activities, we're directly engaging with the visa holders in regard to their rights whilst working here in Australia. We certainly do provide advice where appropriate in regard to what services are available and how they may reach out and utilise those services. As I mentioned, we have had 17 referrals to the AFP in that time as a result of that education work that we have undertaken.