7.1
Temporary visa holders play an important role in Australia's economic growth and development as they meet local labour market needs, transfer knowledge, foster innovation, and support regional communities.
7.2
Australia's temporary migration programme is designed to allow people to come to Australia for a range of purposes, including work, international relations, study, training and to visit. The committee recognises there are many different temporary visas that provide different permissions and conditions to work in Australia.
7.3
It is evident, however, that Australia's temporary migration programme is complicated, expensive and that its users face long delays. Compounding this complexity is a lack of clear, timely and transparent communication with the Department of Home Affairs.
7.4
In addition, delays in processing applications for temporary visas have impacted the responsiveness and flexibility of the system. This is particularly the case for individuals transitioning from a temporary visa to a permanent visa.
7.5
The committee is of the view that the lack of clear pathways or timeframes inhibits temporary residents from developing a sense of belonging to Australia as they feel “permanently temporary”. The committee was concerned to note evidence of individuals being on multiple temporary visas and the transition to a permanent visa only occurring after several years.
7.6
The committee also notes that processing targets for visa applications are not publicly available, resulting in a lack of transparency for temporary visa holders. This lack of transparency in turn causes significant uncertainty and distress for applicants.
7.7
Moving forward, a stronger evidence base is required to inform Australia’s future immigration policy. At present, there is a lack of data about temporary migrants and their trajectories, including time spent on particular visas, socio-economic outcomes and outcomes for accompanying family members. Moreover, the data that is currently available does not appear to be widely or effectively disseminated between the various agencies with responsibility for immigration policy settings and programmes.
7.8
The issues highlighted throughout this inquiry are well established. In 2016, the Productivity Commission released its final report on its inquiry into Migrant Intake into Australia. The report made a number of recommendations and findings, including those aimed at improving settlement outcomes, recalibrating the permanent skilled intake, improving pathways from temporary to permanent migration and increasing transparency around Australia’s visa charging system. To date, the Australian Government has not provided a response to the report’s recommendations.
7.9
In March 2021, the National Agricultural Labour Advisory Committee’s report was released, the National Agricultural Workforce Strategy, which made a number of significant recommendations including recommendation 25 which called for the one-off regularisation of the status of undocumented AgriFood workers. To date, the Australian Government has not provided a comprehensive response to these recommendations.
7.10
The committee recommends that a comprehensive review be undertaken of Australia's visa system with the objective of achieving greater simplification and improving usability.
7.11
The committee recommends that the Australian Government provide a significant increase in resources to the Department of Home Affairs to assist in the timely assessment of visa applications and that targets be set and published regarding acceptable assessment times for all visa subclasses.
7.12
The committee recommends that the Department of Home Affairs conduct a review of its existing communication channels to identify and implement improvements to the timeliness, clarity and transparency of its communication.
7.13
To inform future policy development, the committee recommends that the Australian Government further invest in the development of data collection, integration and dissemination capacity for agencies with responsibility for immigration policy settings and programmes, including the Department of Home Affairs, the Department of Education, Skills and Employment, the National Skills Commission, the Australian Bureau of Agricultural and Resource Economics and Sciences, the Department of Agricultural, Water and the Environment and the Department of Foreign Affairs and Trade.
7.14
The committee notes that the Australian Government has failed to provide comprehensive responses to a number of significant reports that it has received regarding Australia’s migration programme, such as the Productivity Commission report of 2016 and the National Agricultural Labour Advisory Committee report released in March 2021. With the third wave of the COVID-19 pandemic in Australia prolonging labour shortages across a number of industries, and given that Australia’s international borders may remain closed for some time, the committee recommends that the Australian Government urgently respond to these reports.
7.15
Australia's temporary migration legislative framework is complex, with responsibilities lying within and across multiple Australian Government departments, with no single department having responsibility for managing policy, regulations and other laws that are relevant to temporary visa holders.
7.16
The committee notes that as a result of this lack of accountability, that at times the various different departments and agencies that have a role in this policy area fail to take responsibility for issues that may occur within it, passing such responsibility on to other areas of the public service.
7.17
The committee recommends that the Australian Government establish an inter-departmental committee to coordinate Australia's temporary migration programmes, laws, regulations and policies.
7.18
The committee recommends that this inter-department committee regularly consult with industry, unions and other stakeholders.
Australia's economy and labour market
7.19
While temporary visa holders are critical to Australia's economy, the COVID-19 pandemic has highlighted the overreliance of some industries on such workers. This is evidenced particularly in the agricultural industry, where there has been an over-reliance on working holiday makers (WHMs) as its core labour force.
7.20
The committee notes the capacity and robustness of the Seasonal Worker Programme (SWP) and the Pacific Labour Scheme (PLS) to provide a reliable, productive and adequately protected source of labour across key industries in Australia. The committee also notes the overwhelming number of submitters calling for an expansion of the SWP, particularly in the face of a changing workforce.
7.21
The committee recommends that the Australian Government position the Seasonal Worker Programme, in conjunction with the Pacific Labour Scheme, as the predominant source of low and semi-skilled labour in Australia's agricultural industry.
7.22
The committee considers that the requirement under the WHM program for temporary visa holders to complete 88 days of farm work in regional Australia undermines the SWP. Further, this requirement is a systemic factor that contributes to exploitation of WHM visa holders.
7.23
While the 88 day regional component of the WHM program has provided a seasonal workforce for the agricultural industry, the committee notes that it is not the preferred workforce for the industry and should not be relied upon as the industry's core labour force.
7.24
As such, the committee believes that the WHM program should return to its original purpose, which is cultural exchange.
7.25
The committee notes that under the recently announced UK free trade agreement, the requirement for backpackers from the UK to undertake 88 days of farm work has been removed.
7.26
In keeping with the Seasonal Worker Programme's role as the predominant source of low and semi-skilled labour in Australia's agricultural industry, the committee recommends that the 88 day work requirement of the Working Holiday Maker program be abolished in respect to farm work and the Working Holiday Maker program be refocused on its original purpose of facilitating cultural exchange—not labour.
7.27
While a number of stakeholders were supportive of the SWP and spoke highly of the programme, the committee also received a range of evidence regarding the ways in which the SWP could be improved, including through simplified administration, improved access for smaller farms through employee portability and rationalisation of accommodation requirements.
7.28
The committee notes that the significant costs of mandatory quarantine measures may deter participation in the SWP.
7.29
The committee is strongly of the view that whilst changes to the SWP to improve its usability and effectiveness should be explored, any changes that are made to the programme must not compromise on protections afforded to participants.
7.30
The committee is aware that the Australian Government has announced a Pacific Labour Mobility Consultation and released a discussion paper on the SWP and the PLS to maximise benefits for employers, workers and participating countries.
7.31
In order to facilitate an increased take up of the Seasonal Worker Programme by primary producers, the committee recommends that reforms be made to the programme that would lessen the administrative burden of participation without compromising on protections for workers.
7.32
The committee recommends that the Australian Government work constructively with State and Territory governments to explore options to increase Australia’s quarantine capacity for the inclusion of Seasonal Worker Programme and Pacific Labour Scheme participants.
7.33
The COVID-19 pandemic has also demonstrated the perils of the agricultural industry relying on temporary migration programmes which are not purpose-built to meet labour needs. As such, the committee received submissions from industry groups calling for an Agricultural or Harvest Work Visa.
7.34
The committee notes that a key component of a new visa is the ability to provide flexibility for workers and employers to meet labour needs. The committee is of the view that this could be achieved under the SWP and PLS.
7.35
The committee is aware that the Australian Government announced a seasonal agriculture worker visa in June 2021 that would mirror the existing SWP and awaits further details of this visa.
7.36
To improve the flexibility of the Seasonal Worker Programme, the committee recommends that the Australian Government trial a short-term stream of the Seasonal Worker Programme, allowing visa holders to engage in agriculture-specific work in Australia, with multi-entry capabilities, for periods of less than three to four months.
7.37
A key feature of the SWP is that employers are required to be approved by the Australian Government in order to employ SWP visa holders. This requires employers to demonstrate an understanding of workplace laws and immigration practices, and to demonstrate an understanding of an approved employer's obligations under the SWP. The committee believes this is an important mechanism to hold employers accountable.
7.38
The committee notes with concern that outside of the SWP and PLS, employers do not need to be approved in order to employ WHMs, and other temporary visa workers, and that the Australian Government does not keep track of who is employing those temporary visa holders. This presents a serious risk that employers may either deliberately, or as a result of having inadequate education regarding legislative obligations, exploit temporary visa holders. Further, incidents of exploitation may occur repeatedly as there is no register from which an exploitative employer can be removed.
7.39
The committee heard that in contrast to the SWP, work undertaken by WHMs, undocumented workers and international students is substantially under-regulated. There are no employer registration requirements for hiring these migrant workers, nor is there any publicly available data on the number of temporary visa holders currently working in Australia and the employers who engage these workers.
7.40
In addition, the committee heard that the Migration Act 1958 does not provide a power to prevent employers of persons in non-sponsored programmes, who are found to have engaged in workplace exploitation, from being able to hire people on those visa types again.
7.41
The committee recommends that in instances where an employer engages a temporary visa worker, that this employer be required to obtain accreditation from the Australian Government following the provision of training on their obligations to temporary visa workers and register with the Australian Government in cases where a temporary visa worker is engaged as an employee.
7.42
The committee recommends that the Department of Home Affairs regularly publish data on the number of temporary visa workers engaged in work in Australia and the number of employers who have engaged such labour.
7.43
The committee recommends that where an employer has been found to have breached workplace laws, that employer be banned for a period of time from engaging temporary visa workers as employees.
7.44
The committee is of the strong view that with chronic skill shortages across multiple industries, the recruitment and employment of Australian workers must always be prioritised before engaging temporary visa holders.
7.45
The committee acknowledges that a range of factors contribute to the difficulty in attracting Australians to relocate to regional areas to fill seasonal, low-skilled and semi-skilled roles. These factors include an unwillingness to move away from familial and social networks, and negative perceptions of certain industries.
7.46
The committee believes that more needs to be done through education and training to demonstrate to Australians that there are rewarding career pathways in industries with labour force shortages.
7.47
The committee heard that there are safeguards in place to ensure that the temporary skilled migration programme does not have a negative impact on the employment prospects of Australians, including the skilled occupation lists, the Skilling Australian Fund levy (SAF), and the Temporary Skilled Migration Income Threshold (TSMIT).
7.48
The committee believes that current process for determining the skilled occupation lists is flawed and is not reflective of genuine skills shortages. The committee is concerned that there is a perceived lack of transparency in the data and methods used to assess whether occupations should be included on skilled occupation lists.
7.49
The committee acknowledges the importance of the SAF and its purpose, namely to provide for the skilling of Australians to meet the labour demands of industry. The committee is concerned that is a lack of awareness regarding the benefits of the SAF.
7.50
The committee is particularly concerned that the TSMIT, currently set at $53,900, has been frozen since 1 July 2013, and not been indexed, as was previously the case. This allows employers to be able to employ temporary visa holders on a lower wage than Australian workers, undermining the attractiveness of employing Australians over temporary visa workers.
7.51
The committee recommends that the Australian Government undertake a comprehensive review of current education and training initiatives that are in place to encourage Australians taking up employment in industries experiencing labour force shortages and how they might be improved to offer credible career pathways.
7.52
The committee further recommends that the Australian Government provide greater investment into the research and development of agri-tech innovation.
7.53
The committee recommends that the Australian Government establish an independent and tripartite body, incorporating the voices of government, industry and unions, which would be responsible for defining what constitutes a “skills shortage” and determining where they exist.
7.54
The committee recommends that the Australian Government emphasises the importance of the Skilling Australians Fund in supporting Australians to meet labour demands and that efforts should be made to increase industry awareness of the benefits of the Skilling Australians Fund to the Australian economy and community.
7.55
The committee acknowledges the role the current artificially low Temporary Skilled Migration Income Threshold plays in undermining the attractiveness of employing Australians over temporary visa workers and recommends that the Temporary Skilled Migration Income Threshold be increased to the rate it would have been if it were not frozen in 2013 and that future increases be indexed, as was previous practice.
Exploitation of temporary visa holders
7.56
The committee heard that while all Australian workers can be subject to exploitation, temporary visa holders are particularly vulnerable to exploitation in the workplace.
7.57
The continued exploitation of temporary visa holders in Australia is of great concern to the committee, with multiple inquiries highlighting the systemic exploitation of international students, WHMs and other temporary visa holders in Australia.
7.58
In response to the COVID-19 pandemic, the Australian Government announced that international students could work more than 40 hours a fortnight across a number of industries. Despite the introduction of this temporary measure, the committee remains concerned that the 40 hour visa condition imposed on international students, contributes to the exploitation of international students.
7.59
The committee notes that temporary visa holders are particularly vulnerable to exploitation due to a lack of knowledge of Australian workplace rights and obligations. The committee acknowledges that a range of information is provided by the Australian Government to temporary visa holders, however, it is clear that there remains a knowledge gap.
7.60
To protect temporary visa holders from exploitation, the committee is of the view that more information should be made available to temporary visa holders regarding workplace entitlements and conditions.
7.61
In addition, the committee acknowledges the critical role that non-government organisations such as industry groups, unions, settlement services organisations, community legal centre, and other like bodies play in supporting temporary visa holders through the provision of information, including developing and delivering mandatory educational orientation sessions for all work-related visa holders and their family members.
7.62
The committee recommends that all temporary visa holders travelling to Australia with permissions to work be provided with an induction by the relevant industry groups and unions, an information pack by the Department of Home Affairs which explains their workplace rights and also be required to undertake training to ensure that they have a thorough understanding of these rights. Such visa holders should also be provided with details of where they can seek further information or assistance, including through non-government organisations such as industry groups, unions, settlement services organisations, and other like bodies.
7.63
The committee recommends that the Australian Government develop a comprehensive worker rights education plan to ensure that temporary visa holders are given information about their work rights in an appropriate language and format.
7.64
The committee recommends that the Australian Government monitor and review the impact of the 40 hour visa condition requirement for international students, in light of temporary measures to remove this requirement ensuring the primary purpose of a student visa must be study.
7.65
The establishment of a national labour hire scheme to prevent exploitation of temporary visa holders by unscrupulous labour hire companies should be a priority of the Australian Government. The committee notes with concern that this was a recommendation from the Migrant Worker' Taskforce (the Taskforce) final report released in March 2019, which to date has not been implemented.
7.66
The committee is also aware that the National Agricultural Workforce Strategy further recommended that all state and territory governments enact legislation to regulate labour hire providers, noting that legislation could mirror the Labour Hire Licensing Act 2017 (Qld) or the Labour Hire Licensing Act 2018 (Victoria).
7.67
The committee notes calls for the scheme to be a firm licensing arrangement with penalties, compliance and requirements, rather than simply a registration scheme.
7.68
It is the committee's view that such a national scheme should also encompass the best practices of state and territory schemes and not dilute any protections already offered by such schemes
7.69
Building on recommendation 14 of the Migrant Workers’ Taskforce final report, the committee recommends that the Australian Government, as a priority, implement a National Labour Hire Licensing Scheme. The National Labour Hire Licensing Scheme should build on existing frameworks, such as those schemes operating in Queensland and Victoria, to provide a nationally consistent framework.
Pathways to permanency and social cohesion
7.70
Australia has shifted from a permanent migration system towards one more focused on temporary migration, available pathways to permanency for temporary visa holders have decreased and become increasingly difficult to navigate.
7.71
The erosion of pathways to permanency, coupled with the increasing complexity and administrative delays of applications, is having negative implications for Australia's long-term social cohesion and increasing the vulnerability of temporary visa holders to exploitation.
7.72
Moreover, many of the issues associated with the decreased number of pathways for temporary visa holders have been exacerbated by the ongoing COVID-19 pandemic.
7.73
The committee believes that Australia's long terms interests are best served when temporary migration is considered a genuine pathway to permanent residence in Australia.
7.74
The committee recommends restoring the alignment that used to exist between the temporary skilled and permanent skilled programme to ensure that where appropriate, migrants have pathways to permanency and citizenship.
7.75
The committee is aware that women on temporary visas can be vulnerable to particular types of family violence due to the power imbalance that exists between a visa holder and their sponsor. Moreover, many women on temporary visas are ineligible for government support including housing and income support.
7.76
To address these issues, the committee is of the view that access to settlement services should be extended to temporary visa holders to ensure the social and economic benefits of settlement, for both the migrants themselves, and for Australian society as a whole. The committee believes there should be increased funding for the settlement sector to support migrants integrating into Australian communities, in particular in regional areas.
7.77
The committee recommends an expansion of in-language and in-culture support for migrant workers, particularly women on temporary visas across Australia, and readily available information on migration and family law in easy English and a range of languages.
7.78
The committee recommends that more resources be allocated by the Australian Government to support migrants integrating into Australian communities, including to settlement, education and employment services, community legal centres and other like organisations.
Regulatory framework
7.79
The committee is concerned that worker exploitation remains at high levels and believes that this requires further funding and analysis in order to achieve substantial improvements in outcomes for temporary visa holders and the Australian workforce more generally.
7.80
These improvements must ensure that temporary visa holders who are engaged by labour hire firms receive the same wages and are subject to the same conditions as those they work alongside.
7.81
The committee believes that the current Assurance Protocol between the Department of Home Affairs and the Fair Work Ombudsman does not provide sufficient protection for whistle-blowers and temporary workers who report wage theft or exploitation.
7.82
It is apparent that the small claims process that is provided for under the Fair Work Act 2009 (Fair Work Act) is not operating effectively for employees who are seeking unpaid wages and entitlements. It is of concern to the committee that the time taken to finalise cases through the small claims process continues to increase. As such, it is the committee’s view that temporary visa holders should have their visas extended until their small claims matters are concluded. The committee notes that the report of the Taskforce recommended that the Australian Government commission a review of the Fair Work Act's small claims process to examine how it can become a more effective avenue for wage redress for migrant workers.
7.83
The committee emphasises the utmost importance of this review being undertaken, with a view to the establishment of a small-claims tribunal, separate to Australia's current court hierarchy, to facilitate an efficient resolution to wage theft and other like claims.
7.84
Where franchisees are involved in the underpayment of workers, it is the committee’s view that franchisors should be held responsible for the underpayment of employees by franchises, if franchises do not rectify underpayments.
7.85
Underpayment and non-payment of superannuation by employers, remains a concern for the committee. Australia’s legal framework for rectifying and recovering underpayment and non-payment is complex and it is the committee’s view that this process should be simplified to support and assist those navigating this process.
7.86
Employers can currently choose to pay employees using cash, cheque, money or postal order, or through electronic funds transfer into a bank account. To increase transparency and accountability, the committee believes that employers should be required to pay the wages of temporary visa holders into Australian bank accounts.
7.87
The committee also believes that the introduction of criminal sanctions would provide a clear signal to unscrupulous employers that exploitation of workers is unacceptable and could result in severe consequences. To this end, the committee notes that the criminalisation of wage theft was removed from the Australian Government's Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2021 in March 2021.
7.88
The committee recommends that employees engaged by labour hire firms be subject to the same wages and conditions, as other employees on the sites where they are engaged.
7.89
The committee recommends that a formal and legally binding firewall be established between the Fair Work Ombudsman and the Department of Home Affairs to protect whistle-blowers and temporary visa holders that report exploitation to the Fair Work Ombudsman.
7.90
The committee recommends that the Government prioritise a review of the Fair Work Act 2009 small claims process to examine how it can reduce the time taken to finalise cases.
7.91
The committee further recommends that temporary visa holders have their visas extended until their small claims matters are concluded.
7.92
The committee recommends the establishment of a small-claims tribunal, separate to Australia's current court hierarchy, to facilitate an efficient resolution to wage theft and other like claims, including responsibility for setting safe standards, for all employees including for temporary visa holders.
7.93
The committee recommends that the Australian Government increase penalties for wage theft and prioritise the re-introduction of legislation to criminalise wage theft in Australia.
7.94
The committee recommends that franchisors be held responsible for the underpayment of employees by franchisees if franchisees do not rectify underpayments.
7.95
The committee recommends that the Australian Taxation Office simplify the process for rectifying non-payment and underpayment of superannuation by employers.
7.96
The committee recommends that employers be required to pay the wages of temporary visa holders into Australian bank accounts.
7.97
The committee notes that both the Senate Education and Employment References Committee and the Taskforce's final report recommended that the Australian Government review, or otherwise consider, whether the funding provided to the Fair Work Ombudsman (FWO) is sufficient for it to undertake functions under the Fair Work Act, as well as whether it has appropriate powers to enforce its responsibilities under the Act.
7.98
Given the FWO's expanding remit and the pervasive problem of worker exploitation in Australia, it is apparent that the FWO's role, funding and powers must increase as a matter of utmost priority. The FWO's role in Australia's industrial relations system continues to expand and, as this occurs, it must be appropriately empowered and resources in order to combat worker exploitation.
7.99
In addition, a change of focus of the FWO would better reflect its regulatory role, and would enhance awareness of the workplace regulator which in turn would boost its effectiveness in preventing wage exploitation.
7.100
Commensurate with the reorganisation of the Fair Work Ombudsman, the committee recommends that the Australian Government provide significantly greater resources to the organisation, allowing it to have a greater capacity to investigate breaches of Australia's industrial relations laws in partnership with registered organisations and prosecute offenders.
7.101
The committee recommends that the Fair Work Ombudsman be reorganised as the Fair Work Inspectorate, with a greater emphasis on its role as an enforcer of Australian industrial relations laws at the centre of its mission.
7.102
Registered organisations have much wider access to workers and provide an important alternative to a government regulator such as the FWO. As such, there is value in having such organisations whether they be unions, industry associations, community groups or faith-based groups, assist the FWO in protecting temporary visa holders from exploitation.
7.103
The committee believes that there is capacity to increase the role of unions to work alongside the FWO in complementary roles to increase the amount of scrutiny on industries in which exploitation is particularly rife. Commensurate with this role, such organisations should have the power to conduct audits to inspect the books of suspect businesses or payslips of potentially impacted workers.
7.104
Recognising the scale of temporary visa worker exploitation in Australia, the committee recommends that the Australian Government ensure that the reorganised Fair Work Ombudsman works in a formal partnership with registered organisations in the shared mission of combating temporary visa worker exploitations in Australian workplaces.
7.105
The committee recommends that unions be authorised to conduct audits and checks on businesses suspected of exploiting workers or the payslips of potentially impacted workers.
Senator Raff Ciccone
Committee Chair