The Australian Greens thank everyone who gave evidence at the public hearing, and/or made a public written submission to this inquiry into the Migration Amendment (Protecting Migrant Workers) Bill 2021 (the bill).
The bill is a response to recommendations 19 and 20 of the Report of the Migrant Workers’ Taskforce (the Taskforce), which reported to the Minister for Small and Family Business, the Workplace, and Deregulation in 2019. The report contained another 20 recommendations that are not addressed by the bill.
The Australian Greens welcome the important dialogue that the bill has given impetus to, but note that many significant problems that were identified through this dialogue are not addressed by the bill.
Sanctions are only as good as their enforcement, and what is unknown cannot be enforced. This is particularly problematic if migrant workers being exploited in Australian workplaces do not have the legal protection or are not provided with the correct information to report non-compliance.
Whistleblower Protections
The first and foremost concern of migrant workers is often their visa status – especially if they are on a pathway to permanent residence. Without adequate visa protection and job security, migrant workers who have been coerced into acting in noncompliance with their visa conditions are unlikely to report breaches of visa conditions to the Department of Home Affairs. As submitted by the Migrant Justice Institute:
…in a 2019 survey Berg and Farbenblum conducted of over 5,000 international students, three quarters of those who had worked in Australia had received less than the minimum casual hourly wage ... [and] that 38% did not seek information or help for a problem at work because they did not want ‘problems that might affect my visa’.
Such protections would need to cover not only the migrant worker’s current visa status, but also any future visa applications.
The Australian Greens agree with the numerous stakeholders who argued the bill provides inadequate safeguards to enable migrant workers to safely report non-compliance to authorities. We also support recommendations that the protections within the bill would not only sit more appropriately with the Fair Work Ombudsman under the Fair Work Act 2009 (as comparable powers in New Zealand sit with its Labour Inspectorate), but would also provide migrant workers wanting protection under those powers with greater confidence to report non-compliance.
As put in evidence by Ms Catherine Hemingway of the Migrant Justice Institute:
…this bill will not protect vulnerable workers and it will not stop exploitation. The bill fails to address the structural drivers of exploitation or the barriers to migrant workers reporting exploitative conduct…the bill focuses only on employers; it doesn't provide any additional rights, protections or assistance to exploited migrant workers.
In his evidence to the committee, Mr Trevor Gauld of the Electrical Trades Union of Australia went as far as to warn the committee that:
…if you ratchet up the penalties against employers without equally ratcheting up the protections for the workers, you're actually going to have the inadvertent unintended consequence of making it worse for the exploited workers.
This was a concern shared by Mr Matt Kunkel of the Migrant Worker’s Centre, who further warned ‘this bill could push migrant worker exploitation further into the shadows.’
There is currently an Assurance Protocol (the Protocol) between the Fair Work Ombudsman and the Department of Home Affairs that provides some protections against visa cancellations to encourage temporary visa holders to report exploitation in the workplace. However, the Protocol has been found to be not fit for purpose. Recommendation 21 of the 2019 Report of the Migrant Workers’ Taskforce recommended:
…that the Fair Work Ombudsman and the Department of 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.
A review was conducted, as per the recommendation, but resulting changes to the Protocol did not address the core concerns raised by the Taskforce. As such, the Select Committee on Temporary Migration made exactly the same recommendation in its 2021 report, also as Recommendation 21 (of 40 recommendations).
Recommendation
The Australian Greens recommend that the Senate amends the bill to ensure that future visa applications of migrant workers who report employers who have coerced them into non-compliance with their visa conditions are not prejudiced.
Visa conditions
Many migrant workers do not report noncompliance because of a power imbalance between employer and employee. Migrant workers on, or aspiring to, a pathway to permanent residence, may perceive that their employer holds power over their future. Migrant workers may be justifiably fearful of raising concerns regarding non-compliance with employers, let alone authorities, if they feel threatened that they will be reported to the Department of Home Affairs and potentially deported. This is particularly the case for migrant workers whose visas are tied to their employment with a particular employer.
In its submission to the bill’s exposure draft, the Migrant Justice Institute also raised concerns that mandating the use of Visa Entitlement Verification Online (VEVO) checks could lead to racial profiling and discrimination, arguing it would likely:
…result in targeting of job applicants from minority backgrounds for greater suspicion and scrutiny based on their appearance or accent … [and] may lead to preferencing of other applicants for a job due to perceived lower risk and administrative burden in relation to VEVO checks.
Another condition that can lead to exploitation of migrant workers is the limit on the hours someone on a student visa can work in Australia. As submitted in evidence by Mr Kunkel:
The reality on the ground is that people are already breaching this visa because wages are so low. It's almost impossible to survive on 20 hours a week of work.
The counterpoint put forward by a member of the committee was that people in Australia on a student visa are here to study, not work. But that is the situation for all people studying, and with international students paying more in fees than domestic students, they will be particularly mindful of this objective. Moreover, ensuring international students maintain an adequate focus and commitment to their studies is ensured through student visa condition 8202, which requires the visa holder to adhere to certain course enrolment, attendance and academic progress requirements.
Like any other student in Australia, international students need to cover their cost of living, and most will do so by balancing work with study. Limiting the capacity for students to earn a living wage–particularly those with no local families or support network–will only force people into shadow economy work, poverty, or worse.
Recommendation
The Australian Greens recommend that the Senate amends the bill to remove employment requirements that encourage migrant workers to accept substandard working conditions.
Departmental Firewalling
A recommendation proposed by the Migrant Justice Institute and Australian Workers Union was to establish a firewall between the Fair Work Ombudsman and the Department of Home Affairs to prevent the Ombudsman’s office from sharing identifying information with the Department of a migrant-worker raising concerns over non-compliance.
Although no such firewall mechanisms in Australian legislation were presented to the committee, evidence was provided of firewalls limiting the sharing of identifying information between labour and immigration authorities in a number of jurisdictions including the United States, Brazil, and Israel.
In the absence of explicit protections, a firewall, which would render the existing flawed Assurance Protocol obsolete, would encourage migrant workers to report non-compliance by providing them with confidence that the Ombudsman’s office would not be providing identifying data to the Department that could result in their visas being cancelled. This, as submitted by the Migrant Justice Institute, would:
…ultimately yield far greater quality and quantity of data on labour exploitation, forced labour, modern slavery and trafficking.
Thresholds and Penalties
Numerous concerns were also raised by expert witnesses regarding the threshold for non-compliance provided for in the bill. As submitted in writing by the Salvation Army Australia Territory and Uniting Church in Australia Synod of Victoria and Tasmania:
…the threshold for non-compliance is too high and will mean that a comparatively few number of noncompliant employers will be added to the list…[which, together with the] timing for enforcing proposed penalties in Part 2 is unlikely to serve as a strong deterrent.
This conclusion was based on criminological evidence and historical data on litigations initiated by the Fair Work Ombudsman, along with concerns raised in evidence by Ms Heather Moore from the Salvation Army, and shared by other expert witnesses, that:
There are available employer sanctions provisions within the Migration Act that…are not being used…there remains a question about why we're not using the penalties available to us now.
This underutilisation of existing sanctions, Ms Moore suggested, may be a result of the Fair Work Ombudsman being under-resourced. This concern was shared by Ms Hemingway of the Migrant Justice Institute who noted in her evidence that:
The Fair Work Ombudsman is under-resourced and runs fewer than 100 court cases a year…It's apparent that there is much greater need for dedicated support and assistance for workers to be able to bring claims effectively.
Given the sheer scale of migrant worker exploitation in Australia, as detailed in the Report of the Migrant Workers' Taskforce to which the bill is a response to, current resourcing of the Fair Work Ombudsman, and expertise within the Department of Home Affairs, would patently be inadequate to effectively exercise these new powers.
Domestic Workers
Another significant concern regarding thresholds was the treatment of domestic workers. Under the bill, employment in a domestic context is excluded from the provided protections. This means that an employer sanctioned under its powers could still employ domestic migrant workers as nannies, au pairs, NDIS workers etc.
This the Australian Greens believe is a particularly troubling oversight. As submitted by the Salvation Army Australia and Uniting Church in Australia Synod of Victoria and Tasmania, which has significant expertise on modern slavery in Australia:
…domestic workers are particularly vulnerable to exploitation and forced labour…[and] have experienced some of the worst forms of exploitation…seen in Australia.
Conclusion
To conclude with the Migrant Workers’ Centre’s assertion that owing to its limited scope, the bill would have limited effect on protecting migrant workers, the Centre’s Mr Matt Kunkel surmised in his evidence that:
…there are a number of things inside the Report of the Migrant workers' taskforce that we would be welcoming of in a bill that dealt with certain recommendations in exclusion or in separation to others. This is probably not one of them.
Although there is broad support for the bill as a small and overdue step forward in the right direction, the Australian Greens share the concerns of the many migrant worker advocates that gave expert advice and evidence to the committee that the bill is too limited in both its scope, and its likely effect on stamping out exploitation of migrant workers in Australia.
Recommendation
The Australian Greens recommend that the Senate pass the bill.
Senator Nick McKim
Senator for Tasmania