Temporary skilled worker compliance and enforcement arrangements
Introduction
6.1
This chapter outlines the evidence received by the committee in relation
to the extent and prevalence of the exploitation of workers on temporary
skilled visas, as well as information on the awareness of workers on their
workplace rights. Importantly, the committee was also provided with a number of
case studies of worker exploitation.
6.2
The committee considered the current initiatives for awareness raising
for both workers and employers, and the skilled visa compliance and enforcement
frameworks, as well as evidence on the inadequacies of the current enforcement
arrangements.
6.3
During the latter part of the committee's inquiry, the release of the
Report of the Migrant Workers' Taskforce provided a comprehensive assessment on
the current enforcement arrangements and considered recommendations on areas to
be addressed in future.
The extent of skilled visa worker exploitation and awareness of workplace
rights
6.4
The committee heard evidence on the prevalence of the exploitation of
workers on temporary skilled visas, including the difficulties on obtaining
accurate information on the extent of this issue.
6.5
The Construction, Forestry, Maritime, Mining and Energy Union described
the exploitation and underpayment of temporary working visa holders as 'not a
series of isolated incidents', but 'endemic'.[1]
Mr Mathew Kunkel, Director, Migrant Workers Centre, indicated that barriers to temporary
migrant workers reporting issues means that there will always likely be
underreporting of incidence of exploitation in these areas.[2]
The Victorian Trades Hall Council provided context for the reasons that workers
rarely come forward to the Fair Work Ombudsman or other government authorities:
[Results from the National Temporary Migrant Worker Survey
show that less] than one quarter of migrant workers on temporary work visas
said they would speak out for fear of losing their visa. This is due to the
complete dependence of migrant workers on their employer.
The structure of visas is such that, if a migrant work on a
temporary work visa loses their employer's good grace, they only have 60 days
to find another job, or they must leave the country or be in breach of their
visa. This creates a huge power imbalance where migrant workers are tied to
their employers, no matter their wages or conditions. These workers have no
capacity to exercise power.[3]
6.6
The Victorian Trades Hall Council also noted:
Even more concerning, 5% of migrant temporary workers indicated
they paid some form of 'deposit' for their job in Australia, and 4% were
required pay cash back out of their wages to their employer.[4]
6.7
Mr Kunkel explained the implications of this in terms of workers seeking
redress:
The temporary nature is one aspect of why workers are having
problems in the workplace. We would say it's not only the temporary nature of
the visas that causes the problem but the way in which workers are, in effect,
bonded to employers such that, when there are problems in the workplace, workers
are faced with a difficult choice of going up against the person that is
effectively the only thing keeping them in the country. So, it's an additional
barrier to seeking redress on these issues.[5]
6.8
Mr Kunkel, while agreeing that the number of temporary skilled visas may
be declining, contended that this did not necessarily mean that worker
exploitation was less likely:
I think the issue is that it's not necessarily the number of
people on these temporary skill visas that's creating the exploitation opportunities;
it's the insecure nature of the workers' position in the country that creates
it. In the transition from 457 visas to the new temporary skills system, the
numbers for the visa class might have changed, but the scams remain the same.
The other thing that we've seen is, in some cases, student visas becoming a
de facto work visa because of the holes in our wider migration system.[6]
6.9
In terms of the extent of underpayment of migrant workers, Unions NSW
cited the results of an audit it had performed on job advertisements which
estimated that migrant workers in the hospitality industry were underpaid on
average $4,825 a year. Unions NSW noted that researchers have predicted migrant
workers have been underpaid in excess of $1 billion.[7]
6.10
Commenting on exploitation experienced by international students working
in Australia, the National Tertiary Education Union (NTEU) stated:
In addition to underpayment, International student workers
have also reported bullying and intimidation by their employer to the Fair Work
Ombudsman, with cases of employers threatening to deport or
"blacklist" the student workers for future work if they complained.[8]
6.11
The ACTU reported that sham contracting practices extend to temporary
visa holders, particularly in the construction and cleaning sectors. The ACTU
described sham contracting as 'the practice of disguising an employment
relationship as one of principal and independent contractor'.[9]
The motivation behind sham contracting is to enable the employer to avoid paying
leave entitlements and superannuation, and is often achieved by requiring the
worker to have an Australian Business Number (ABN). The ACTU explained that:
...manipulation of ABNs facilitates and legitimises sham
contracting, wage theft, and phoenixing by attempting to put the ABN holder
outside of the reach of the PAYG system and the ambit of industrial
legislation.[10]
6.12
The Report of the Migrant Workers' Taskforce acknowledged the 'ongoing
issues around sham contracting' but did not further investigate the issues
because of work currently being done by government agencies. The Taskforce
noted that:
The ATO and the Department of Home Affairs are implementing
strong integrity measures for visa holders obtaining ABNs to address cases of
misuse of ABNs and sham contracting. This includes providing more information
to prospective ABN holders and employers, better identifying visa holders when
they are applying for an ABN, and taking action with employers who incorrectly
treat their employees as contractors by making them wrongly apply for an ABN.[11]
6.13
The ACTU argued, however, that workers on temporary skilled visas have
no need for ABNs at all, because their reason for being in Australia is
employment and not conducting a business (which would require a different
visa). The ACTU concluded that:
...ABNs are not and should not be available to temporary visa
workers. There should be a screening process put in place by the ATO to ensure
that these categories of workers are not issued with ABNs and so are not
subject to the exploitative practice of sham contracting.[12]
Awareness of Australian workplace
laws and protections
6.14
There was evidence provided to the committee on the extent to which
migrant workers were aware of Australian workplace laws and protections. The
Law Council of Australia referred to some of the findings of its Justice
Project, a national, comprehensive review into the state of access to justice
in Australia for people experiencing significant disadvantage, which reported
in August 2018 that:
...temporary work visa holders are less likely to know of their
legal rights and,...where holders of this visa type are aware of their legal
rights, they are less likely to enforce them. The Justice Project noted that
temporary work visa holders may have a limited understanding of Australian laws
and society, and therefore are unable to identify that they have a legal need. The
Justice Project further cited findings that some employers have exploited the lack
of knowledge of the Australian legal system by discouraging employees from
taking their grievances further.
Additionally, [Temporary Skill Shortage (TSS)] visa holders
often do not speak English as a first language, which maybe a barrier to
accessing assistance to enforce their rights. It was reported in the Justice Project
that low levels of English language proficiency impede access to legal information
and support services.[13]
6.15
The NTEU indicated that students on visas with work rights are aware of
their work rights, but other factors, including work insecurity, financial
pressures and the need to keep the employer happy lead to visa breaches. The NTEU
also noted that only a small number of the workers had reported the
exploitation they experienced.[14]
Case studies
6.16
Submitters and witnesses provided a number of case studies that demonstrated
non-compliance with visa conditions and exploitation of workers. In many
instances, both visa non-compliance and worker exploitation were occurring
concurrently.
6.17
The Australian Council of Trade Unions (ACTU) noted that despite the
requirement for the subclass 400 visa that the work be 'highly specialised',
the visa is being used to fill semi-skilled positions for which qualified Australian
applicants are available. The ACTU provided the following examples:
Chinese labourers flown in to dismantle the former Mitsubishi
car plant in the Adelaide Hills paid $1.90 an hour, Filipino metal fabricators
paid $4.90 an hour to install animal feed mills in NSW, and nine Indonesian
timber workers flown into Tasmania and promised bonuses when they returned
home.[15]
6.18
The ACTU's submission claimed that in cases such as these, subclass '400
visas are sometimes approved within 24 hours with seemingly little oversight'.[16]
6.19
The Electrical Trades Union's (ETU) submission referred to the case of
four people, two from the Philippines and two from Thailand, brought into
Australia to work on a solar farm construction project outside of Townsville on
subclass 400 visa arrangements. Those four workers were being paid $40 per day plus
and additional $42 for food and accommodation.[17]
The ETU stated that the workers were brought in on skilled specialist visas,
however, their qualifications and licences were never assessed:
Schneider Electric had brought over [the four workers]
workers on subclass 400 "Specialist" visas on the basis of the
unavailability of locally skilled workers despite Townsville having an
unemployment rate of 8.77% as at the 2018 June quarter and the ETU being aware
of numerous unemployed members in the region who had been refused employment on
the project despite applying.
The work which these 4 individuals were to perform, as stated
to Immigration, includes licensed electrical work but their skills and
qualifications were never assessed, the workers were not licenced to perform it...
In fact Schneider's lawyers were adamant that, as these 4 are employed by a
foreign entity, Schneider Electric Australia:
-
had done nothing illegal; and
-
was under no obligation to pay.[18]
6.20
The ETU noted that Schneider Electric had settled the matter, increasing
the workers' wages and paying backpay. However, as these payments went to an
offshore bank account there was no way to confirm: if the payments were
received by the workers; who owned the bank account the payments were directed
to; and whether the workers were, ultimately, able to keep the money.[19]
6.21
A further case was referred to by the Victorian Trades Hall Council, in
which a worker who was working in hospitality in Melbourne had been charged
$50,000 for a permanent visa:
In a flagrant disregard for this worker's wages and the visa
process, he was asked [to] transfer half of the deposit to his employer's
friend's account: a friend who had no relationship to the restaurant or work.
This worker is too afraid to report his employer because he does not want to
interfere with any change of gaining permanent residency.[20]
Compliance measures and protections for workers, enforcement arrangements and
sanctions frameworks
6.22
The joint submission by the Department of Home Affairs (Home Affairs),
Department of Jobs and Small Business, and Department of Education and Training
(Joint Departmental Submission) sets out the measures for compliance checking
and protection for workers, enforcement arrangements and sanctions frameworks.
The release of the Migrant Workers' Taskforce's final report in March 2019,
although focussed on the experience of temporary migrants who derived work
rights from international student and working holiday visas, provided the
committee with some additional information on the adequacy of compliance,
enforcement and sanction aspects of the temporary skilled visa system. Submissions
and evidence to the committee also addressed these issues.
6.23
The Joint Departmental Submission advised:
All temporary visa holders with a work right, including those
sponsored by Australian businesses on TSS and subclass 400 visas, are entitled
to the same basic rights and protections as Australian and permanent residents
under applicable workplace laws including work, health and safety , and workers
compensation.[21]
6.24
The Joint Departmental Submission noted the Commonwealth agencies
responsible for arrangements for the skilled visa system include the Fair Work
Ombudsman, Home Affairs and the Australian Border Force. The Australian Border
Force also works with other agencies, such as the Australian Federal Police,
the Australian Criminal Intelligence Commission and the Australian Taxation
Office to target individuals involved in the exploitation of vulnerable
persons.[22]
6.25
The aforementioned Migrant Workers Taskforce was established in 2016 'as
part of the Australian Government's commitment to protect vulnerable workers'.
It was asked to identify further proposals for improvements in law, law
enforcement and investigation, and other practical measures to more quickly
identify and rectify any cases of migrant worker exploitation.[23]
Compliance initiatives and
protections for workers
6.26
In terms of raising the awareness of overseas workers of workplace laws
and informing employers of their obligations, Home Affairs has been working
with the Fair Work Ombudsman on a range of communication approaches:
This includes high level messaging at key points in an
overseas worker's journey, SMS nudge notifications providing messages about
workplace rights and protections, reviewing communications across government
for simplicity and consistency, messaging across government websites and
products, and promoting messages in locations visited by overseas workers. A
trial of 'push messaging' began with Working Holiday Maker visa holders
(subclass 417 and 462) on 18 November 2018. Home Affairs communication
activities and initiatives are due to be completed within the 2018–19 program
year.[24]
6.27
In addition, Home Affairs operates a Visa Entitlement Verification
Online system (VEVO) which allows visa holders, employers, education providers
and other registered organisations to check visa conditions, including work
rights.[25]
6.28
The Law Council of Australia referred to the information provided to
visa holders upon being granted a TSS visa, and expressed the view the
information pack provided to visa holders could be improved:
An information pack should be developed that outlines in
plain English all necessary information under both immigration law and
employment law about the visa that they hold, its conditions, as well as their
rights and protections under the Migration Act and Fair Work Act, and how to
access support.[26]
6.29
One of the initial tasks at the commencement of the Migrant Workers'
Taskforce was a stocktake of existing communications strategies being used by
government departments and agencies to inform workers, including visa holders,
of their work rights and obligations. In discussing these strategies, the
Migrant Workers' Taskforce observed:
[I]t became clear that government agencies are investing a
great deal in disseminating information about workplace laws and conditions...
However, the stocktake also demonstrated that agencies often take a siloed
approach to their communications work, and that there is an overall lack of a
cohesive messaging and delivery strategies being used across government
agencies. The stocktake further highlighted that Taskforce agencies could
benefit from greater insight into how useful migrant workers found the formats
and messages and whether they could be improved.[27]
6.30
The Migrant Workers' Taskforce had commissioned the Department of Jobs
and Small Business and the Fair Work Ombudsman to conduct research into the
information needs of migrant workers in order to inform future
whole-of-government communications strategies. The Report of the Migrant
Workers' Taskforce summarised the key findings from that research:
- many migrants do not have a good knowledge of workplace rights in
Australia;
- after arriving in Australia migrant workers are somewhat more
receptive to workplace rights information;
- the timing of communications about workplace rights in important;
- employers, family and friends, and educational institutions are
important sources of information on workplace rights;
- migrant workers' misconceptions influence whether, and how, they
engage with workplace rights information and government agencies;
- employers' knowledge of workplace rights also affect employees'
access and knowledge;
- government communications materials, and efforts to disseminate
them, can be improved.[28]
6.31
The research also found that awareness of the VEVO app was low, and that
feedback from those using the app was mixed, with 'some participants suggesting
the app could be expanded to include more detailed information on workplace
laws and conditions'.[29]
'Anonymous Report' function
6.32
The Joint Departmental Submission also referred to the 'Anonymous
Report' function, launched in 2016 and operated by the Fair Work Ombudsman,
which enables members of the community—including workers, consumers, concerned
citizens and businesses—to anonymously notify the ombudsman of potential
non-compliance with workplace laws. The service has been promoted to migrant
workers through a digital and traditional media campaign. Reporting can also be
done 'in-language', as a means to encourage and support people from culturally
and linguistically diverse backgrounds to report workplace issues.[30]
6.33
As at 30 June 2018, the Fair Work Ombudsman had received 15 138
anonymous reports, 1 294 of which were in languages other than English. In 2017–18,
hospitality was by far the most reported industry (37 per cent of all reports),
followed by retail (13 per cent), and building and construction (five per
cent).[31]
6.34
The Migrant Workers' Taskforce provided the following assessment of the
'Anonymous Report' Function:
Used in combination with other operational data and research,
anonymous reports have helped the [Fair Work Ombudsman] to improve its
targeting for compliance activities, allowing the agency to focus on a
particular precinct, location, sector or type of conduct where there may be
systemic problem. For example the [Fair Work Ombudsman] relied on intelligence
from anonymous reports as part of a hospitality campaign that targeted specific
food precincts in Melbourne, Sydney and Brisbane.[32]
Fair Work (Protecting Vulnerable
Workers) Act 2017
6.35
The Joint Departmental Submission referred to the Fair Work
(Protecting Vulnerable Workers) Act 2017 (Protecting Vulnerable Workers
Act) which commenced in October 2017. The submission stated that the Protecting
Vulnerable Workers Act strengthens protections for vulnerable workers by:
- Increasing penalties for breaches of record-keeping and pay slip
obligations and introduced a new category of 'serious contraventions' (with
penalties 10 times higher) for deliberate and systematic breaches. A 'serious
contravention' happens when the:
- Person or business knew they were contravening an obligation
under workplace law.
- Contravention was part of a systematic pattern of conduct
affecting one or more people.
- Providing stronger provisions to make franchisors and holding
companies responsible for breaches of the Fair Work Act 2009 (Fair Work
Act) in certain circumstances.
- Expressly prohibiting employers from unreasonably requiring
employees to make payments (i.e. 'cash-back' arrangements).
- Strengthening the evidence gathering powers of the [Fair Work
Ombudsman].[33]
6.36
The Report of the Migrant Workers' Taskforce provided an overview on the
implementation of the Protecting Vulnerable Workers Act, including activities
undertaken by the Fair Work Ombudsman to support employer compliance, such as:
-
publishing information and resources on [the Fair Work
Ombudsman's] website aimed at assisting workplace participants to understand
and comply with their obligations
- launching a new Record Keeping and Pay Slip Online Learning
Course to educate employers and make record-keeping practical and easy
- hosting a roundtable with key franchise sector stakeholders to
discuss how the new laws affect franchisors, and publishing new information on
the [the Fair Work Ombudsman's] website
- considering how, and to whom, [the Fair Work Ombudsman] will
apply the new franchising and serious contravention provisions.[34]
6.37
The Fair Work Ombudsman has also commenced its first legal action
involving new provisions that prohibit a person from providing false or
misleading information or documents to a Fair Work Inspector. Further, the Fair
Work Ombudsman has also commenced the first legal action using new reverse onus
of proof provisions, which require employers to disprove underpayment
allegations where there is inadequate time and wages records or a failure to
issue payslips.[35]
6.38
The Report of the Migrant Workers' Taskforce noted, given that the
Protection of Vulnerable Persons Act only came into operation in late 2017,
that it would take some time to see the full impact of the amendments.[36]
Enforcement arrangements and sanctions
frameworks
6.39
The Joint Departmental Submission outlined that Home Affairs and the
Australian Border Force have sanction frameworks for employers/sponsors who do
not comply with legislative requirements. The sanctions framework has graduated
tiers, and current sanctions include warnings, infringement notices, barring or
cancelling a sponsor from engaging in a program, civil penalties and referrals
to the Commonwealth Director of Public Prosecution for criminal prosecution.[37]
6.40
Monitoring efforts to ensure that sponsors comply with their obligations
include: writing to sponsors to request information; site visits, with or
without notice; and information exchanges between Commonwealth, state and
territory government agencies.[38]
6.41
The Report of the Migrant Workers' Taskforce also noted the range of
enforcement tools available to the Fair Work Ombudsman in cases of deliberate
or repeated exploitation of highly vulnerable workers by operators, including:
compliance notices; enforceable undertakings; infringement notices; and court
action.
Joint agency initiatives and data
sharing
6.42
Home Affairs and the Fair Work Ombudsman have also engaged in a joint
agency initiative, through the Australian Border Force Taskforce Cadena, since
2015, to cooperate on issues related to illegal work, visa fraud and
exploitation of overseas workers. The Joint Departmental Submission stated that
the Taskforce 'has identified a higher level of criminality than was originally
understood' when the Taskforce was first established, including criminal
syndicates involved in 'using complex financial structures to... avoid payment
of taxes, creditors and employee entitlements'. The focus for the 2018–19
program 'is to detect and disrupt criminal syndicates that profit from the
serious exploitation of foreign workers and Australia's migration system',
especially where these have links to serious criminal offending.[39]
6.43
The Joint Departmental Submission outlined that it has undertaken recent
reforms to allow Home Affairs to identify, by sharing tax file numbers with the
Australian Taxation Office, employers who are underpaying overseas skilled
workers, and to publish on the Home Affairs website the details of sponsors who
have breached their obligations.[40]
6.44
The Migrant Workers' Taskforce noted:
The ability for government agencies to share information
provides an important avenue to help identify potential non-compliance. It
could also support successful prosecutions where patterns of non-compliance can
be shown. Information sharing also supports agencies' education and compliance
strategies to focus their priorities and direct their resources to those areas
where they will have the greatest impact.
...
Information and intelligence is also shared by certain
government agencies to support compliance and enforcement actions for
particular purposes, such as Taskforce Cadena...[41]
6.45
The Migrant Workers' Taskforce also referred to limitations in data
sharing between agencies:
Taskforce agencies noted that data sharing efforts have been
constrained by agency specific legislative restrictions, inhibiting the sharing
of data across government and between agencies. Within these constraints,
agencies have continued to work to find ways to share and use data more effectively
to the extent the law allows.[42]
Limited Assurance Protocol
6.46
Since January 2017, Home Affairs and the Fair Work Ombudsman have
engaged in a Limited Assurance Protocol, under which Home Affairs generally
will not cancel an individual's visa where they have breached their work visa
conditions but have also reported exploitation to the Fair Work Ombudsman.[43]
6.47
The Migrant Workers' Taskforce referred to a review of the Limited
Assurance Protocol[44]
carried out by Home Affairs and the Fair Work Ombudsman in June and July 2018.
The review focussed on 35 visa holders, almost 60 per cent of whom were on some
form of international student visa and almost 23 per cent were 457 visa
holders. No migrant worker referred under the Assurance Protocol had their visa
cancelled for breaching work-related visa conditions.[45]
Although the review found the Assurance Protocol is 'largely a positive
initiative', Home Affairs and the Fair Work Ombudsman 'found a number of
opportunities for improvements in the design, practical operation and promotion
of the Assurance Protocol'.[46]
In particular, it was found that there needed to be improved clarity on the
operation of, and broadened access to, the Assurance Protocol.[47]
Submitter and witness views on
enforcement arrangements and sanctions framework
6.48
The Law Council of Australia noted the development of enforcement
arrangements available to Home Affairs over the past decade, and expressed the
view that Home Affairs 'has adequate enforcement powers under the Migration Act
and Migration Regulations 1994 (Cth) to refuse applications, cancel
visas or take action against employers'.[48]
6.49
The Migration Institute of Australia stated that Fair Work Australia
must be commended for the 'significant amount of work they have put into
identifying breaches of the rights and protections of overseas workers and the
public resources they have developed in this space'. It commented further that
recent legislative changes and media reporting should serve to discourage employers
breaching their obligations.[49]
6.50
The Migration Council of Australia argued that guidance needs to be
developed and disseminated in relation to how specific breaches of employer
obligations will be sanctioned:
Current enforcement options include [a]dministrative actions,
enforceable undertaking and civil actions. Clear guidelines on the types of
sanctions applicable to each breach of obligation including warnings, setting a
range of fixed cumulative pecuniary penalties and barring egregious employers
from the Program for a number of years or indefinitely depending on the
severity of the breach, would reinforce program integrity.[50]
6.51
The Migration Council also expressed support for legislative changes
which would provide Home Affairs with the ability to publish information
identifying sponsors who have not complied with their obligations:
This name and shame approach is both an incentive to ensure
employers abide by their obligations and a warning to prospective workers who
may consider working for a listed employer. Further details on the parameters
of the naming policy (whether the breach and penalty will be publicised and the
duration of the publication) and its effects remain to be seen. At the very
least, this initiative increases transparency and accountability of the
Program.[51]
6.52
Other submitters and witnesses argued that despite recent developments,
current compliance and enforcement arrangements are insufficient. For example, RDA Far
South Coast described current enforcement arrangements in regional areas as
'woefully inadequate'.[52]
Mr Craig Thomas of the ETU told the committee that where law enabling
compliance action to be taken exists, it 'is not enforced in any meaningful way
whatsoever'.[53]
Mr Thomas outlined some of the practical difficulties encountered when an
attempt is made to raise concerns about migrant worker exploitation:
As far as reporting things goes, if you report to the
department of immigration, the bureaucratic process of making a complaint is so
difficult that, even for someone trained in it, it is almost impossible to do,
let alone if you were a migrant worker concerned about exploitation. It is
extraordinarily difficult, and normally the first thing that occurs—and we've
made these reports—is that the department of immigration rings the employer.
The employer gets really angry and gets rid of the complaining workers. That's
been our experience... If we ring up the Fair Work Ombudsman to make complaints
around these kinds of breaches, they tell us at times that they can't accept
our complaints. They tell us that we don't have any authority because the
migrant worker is not a member of the union. Where we do manage to contact a
friendlier person within the department who takes the call—some are openly
hostile—they'll thank us for the information and tell us that we have no right
to know what they do with it, and we never hear anything again. I have never
yet seen a situation where we've made a complaint and an actual official from
either the department of immigration or the Fair Work Ombudsman actually
attends the site.[54]
Recommendations of the Migrant Workers' Taskforce
6.53
The Report of the Migrant Workers' Taskforce made a significant number
of recommendations for further actions, which are relevant to the committee's inquiry.
The full list of the Migrant Workers' Taskforce's recommendations are set out
in Appendix 3 to this report.
6.54
In particular, the Migrant Workers' Taskforce recommended improving
migrant workers awareness of rights and entitlements. This includes:
- developing of a whole-of-government approach to information and
education needs of migrant workers (Recommendation 2).
- education providers providing information to international
students about workplace rights, and provide support services for international
students with workplace issues (Recommendations 15, 16 and 17).
6.55
The Taskforce made recommendations to better protect migrant workers by
amending the Fair Work Act 2009 (Fair Work Act) to:
- clarify that temporary migrant workers working in Australia are
entitled at all times to workplace protections under the Fair Work Act
(Recommendation 3); and
- prohibit persons from advertising jobs with pay rates that would
breach the Fair Work Act (Recommendation 4).
6.56
The Migrant Workers' Taskforce also made recommendations to strengthen
the enforcement regime by:
- increasing the general level of penalties for breaches of wage
exploitation provisions in the Fair Work Act (Recommendation 5);
- introducing crimination sanctions for the most serious forms of
exploitative conduct, such as where the conduct is clear, deliberate and
systemic (Recommendation 6);
- providing courts with specific powers to make additional
enforcement orders against employers who underpay migrant workers
(Recommendation 7);
- amending the Fair Work Act 2009 to adopt the model
provisions relating to enforceable undertakings and injunctions contained in
the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Recommendation
8);
- providing the Fair Work Ombudsman with the same information
gathering powers as regulators such as the Australian Competition and Consumer
Commission (Recommendation 11);
- ensuring that the resourcing for the Fair Work Ombudsman is
adequate, noting that an increase may be appropriate (Recommendation 10);
-
developing legislation to declare that it is an offence to
knowingly unduly influence, pressure or coerce a temporary migrant worker to
breach a condition of their visa (Recommendation 19); and
- excluding employers who have been convicted by a court of
underpaying temporary migrant workers from employing new temporary visa holders
for a specified period (Recommendation 20).
6.57
To ensure that temporary workers are confident in bringing forward
complaints, the Taskforce also recommended a review of the Assurance Protocol
between the Department of Home Affairs and the Fair Work Ombudsman within
12 months. The review should consider whether further changes are needed
(Recommendation 21).
6.58
The Taskforce also recommended that the government give 'greater
priority to build an evidence base and focus its existing research capacity
within the Department of Jobs and Small Business on areas affecting migrant
workers' (Recommendation 22). This recommendation also included additional
specific courses of action, as follows:
- the Department of Education and Training should work with the
Council for International Education and peak organisations to help identify
mechanisms for providers to collect data about student visa holders'
experiences of working in Australia;
- the Department of Education and Training should conduct regular
surveys of overseas students that include workplace experience; and
- the Government should support work being undertaken by ABARES,
the science and economics research division of the Department of Agriculture
and Water Resources to increase data collection in relation to agricultural
labour.
Committee view
6.59
By preventing the exploitation of workers on temporary visas, two
benefits are achieved: overseas workers are afforded their full rights under
Australian law and, secondly, these workers cannot be used to undermine the
wages and conditions of Australian workers.
6.60
The evidence to the committee demonstrates that enforcement of visa
arrangements and protection from exploitation of workers on temporary skilled
visas remains a significant area of concern. The committee recognises that
government agencies, particularly through the Fair Work Ombudsman and Home
Affairs, have undertaken significant work in the last few years to address
these issues. The committee notes the work of the Migrant Workers' Taskforce
and the comprehensive assessment in the taskforce's final report on the
progress of implementation of initiatives.
6.61
The committee is of the view that the recommendations in the Report of
the Migrant Workers' Taskforce provide a considered course of action that, if
followed, will address many of the concerns raised with the committee. The
committee notes that in responding to the Report of the Migrant Workers'
Taskforce, the Australian Government has accepted in-principle all recommendations
of the taskforce. The committee commends the work of the Migrant Workers'
Taskforce and supports the adoption and implementation of all the Taskforce's
recommendations as soon as practicable.
6.62
In addition to the recommendations contained in the Report of the
Migrant Workers' Taskforce, there are still several areas where the committee
considers a more effective approach is required.
6.63
Unfortunately, there is currently insufficient data available about the
location and number of workers on temporary visas. This makes it difficult for
government agencies and support services (including unions) to provide targeted
support to workers. Increased transparency in this area is important. Simple
changes include requiring wages for temporary work visa holders to be paid
directly into Australian bank accounts (and therefore within the oversight and
jurisdiction of Australian agencies), and publication of data about the
location of employers utilising temporary visa workers. The Fair Work Act
2009 should also be amended to grant unions standing to commence civil
actions for breaches of that Act, and breaches to the Migration Act
1958 in relation to visa work conditions.
6.64
The committee notes the findings of the Migrant Workers Taskforce and
research by the Law Society on the challenges currently facing temporary
workers who want to know their rights and access support. It is important that
temporary workers are provided with a copy of the relevant collective
agreement, award or labour agreement upon commencement. This information should
also include contact details for support services and the relevant union.
6.65
The committee notes the evidence from the ACTU and others that ABNs are
misused by unscrupulous employers. While acknowledging current efforts the
government has recently made to address this concern, the committee agrees that
ABNs should not be available to temporary visa workers, including those on
student visas and working holiday visas.
6.66
The Fair Work Ombudsman has an important role to perform in the enforcement
of Australian law in this context, alongside the Department of Home Affairs and
the Department of Jobs and Small Business. It is essential that relevant
government agencies and departments are adequately resourced to ensure that
enforcement action is effective.
6.67
The committee notes that the Department of Home Affairs and the Fair
Work Ombudsman have also engaged in a joint agency initiative, through the
Australian Border Force Taskforce Cadena, since 2015, to cooperate on issues
related to illegal work, visa fraud and exploitation of overseas workers.
Certainly this Taskforce has made an important contribution to reducing
exploitation of workers. However, the evidence to this inquiry indicated that
four years later, workers on temporary visas continue to be exploited. The
Migrant Workers Taskforce recommended that a review be conducted of Taskforce
Cadena in 12 months. As noted earlier, the committee supports this
recommendation. However, based on the evidence provided, the committee
considers that resourcing for this taskforce should be increased before the
review is completed.
Recommendation 16
6.68
The committee recommends that the Australian Government implement all
recommendations from the Report of the Migrant Workers' Taskforce as soon as
practicable.
Recommendation 17
6.69
The committee recommends that the Australian Government increase funding
for Taskforce Cadena—or
a similar taskforce—to
ensure that the Taskforce is adequately resourced.
Recommendation 18
6.70
The committee recommends that the Australian Government require that
employers pay wages for temporary visa holders into an Australian bank account.
Recommendation 19
6.71
The committee recommends that the Australian Government propose
amendments to the relevant law to make it unlawful for temporary visa workers,
including persons on student visas and working holiday visas, to apply for or
to hold, an Australian Business Number (ABN).
Recommendation 20
6.72
The committee recommends that the Australian Government consider
amending the Fair Work Act 2009 and the Migration Act 1958
to grant unions standing, where appropriate, to commence civil actions for
breaches of those Acts in relation to visa work conditions.
Recommendation 21
6.73
The committee recommends that the Australian Government ensure that unions
have standing to complain to the Fair Work Ombudsman or the Department of Home
Affairs about concerns relating to the exploitation of temporary visa workers,
even if that worker is not a union member.
Senator
Louise Pratt
Chair
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