Chapter 1
Background to the inquiry
Inquiry terms of reference
1.1
On 24 March 2015, the Senate referred the following terms of reference
to the Education and Employment References Committee for inquiry and report by
22 June 2015:
The impact of Australia's temporary work visa programs on the
Australian labour market and on the temporary work visa holders, with
particular reference to:
- the
wages, conditions, safety and entitlements of Australian workers and temporary
work visa holders, including:
-
whether the programs 'carve out' groups of employees from Australian
labour and safety laws and, if so, to what extent this threatens the integrity
of such laws,
- the employment opportunities for Australians, including:
- the
effectiveness of the labour market testing provisions (the provisions) of the Migration
Act 1958 in protecting employment opportunities for Australian citizens and
permanent residents, and
- whether
the provisions need to be strengthened to improve the protection of employment
opportunities for Australian citizens and permanent residents and, if so, how
this could be achieved,
-
the adequacy of publicly available information about the operation of
the provisions, and
-
the nature of current exemptions from the provisions and what effect
these exemptions have on the reach and coverage of labour market testing
obligations and laws regarding wages, conditions and entitlements of Australian
workers and temporary work visa holders;
- the
impact of Australia's temporary work visa programs on training and skills
development in Australia, including:
-
the adequacy of current obligations on 457 visa sponsoring employers to
provide training opportunities for Australian citizens and permanent residents,
-
how these obligations could be strengthened and improved, and
-
the effect on the skills base of the permanent Australian workforce;
- whether
temporary work visa holders receive the same wages, conditions, safety and
other entitlements as their Australian counterparts or in accordance with the
law, including:
-
the extent of any exploitation and mistreatment of temporary work visa
holders, such as sham contracting or debt bondage with exorbitant interest rate
payments,
-
the role of recruitment agents, and
-
the adequacy of information provided to temporary work visa holders on
their rights and obligations in their workplace and community, and how it can
be improved;
- whether
temporary work visa holders have access to the same benefits and entitlements
available to Australian citizens and permanent residents, and whether any
differences are justified and consistent with international conventions
relating to migrant workers;
- the
adequacy of the monitoring and enforcement of the temporary work visa programs
and their integrity, including:
-
the wages, conditions and entitlements of temporary work visa holders,
and
-
cases of 457 visa fraud, such as workers performing duties outside or
below the job classification of the visa;
- the
role and effect of English language requirements in limited and temporary work
visa programs;
- whether
the provisions and concessions made for designated area migration agreements,
enterprise migration agreements, and labour agreements affect the integrity of
the 457 visa program, or affect any other matter covered in these terms of
reference;
- the
relationship between the temporary 457 visa and other temporary visa types with
work rights attached to them; and
-
any related matter.
That in conducting the inquiry, the committee shall review
the findings and recommendations of previous inquiries into such matters,
including the Legal and Constitutional Affairs References Committee's report, Framework
and operation of subclass 457 visas, Enterprise Migration Agreements and
Regional Migration Agreements.[1]
Context of the inquiry
1.2
With the changes wrought by globalisation, including the global mobility
of labour, Australia has become increasingly reliant on temporary migration.
Indeed, Australia's migration program has been transformed to such an extent
over the last two decades that it is no longer accurate to consider Australia a
country solely of permanent settlement.[2]
1.3
Over the last 20 years, Australia's approach to skilled migration has changed
significantly, most notably with the introduction in 1996 of the Temporary Work
(Skilled) (Subclass 457) Program (457 visa program).
1.4
However, temporary migrants perform a range of work far greater than the
skilled occupations provided for by the 457 visa program, and in vastly greater
numbers than that provided for by dedicated skilled labour migration programs.
1.5
In fact, while primary 457 visa holders in Australia numbered 106 755 at
31 March 2015, approximately 1.4 million temporary visas held in Australia
at
31 March 2015 had work rights attached to them:
-
New Zealand (subclass 444);
-
Student (subclasses 570 to 576);
-
Temporary graduate (subclass 485);
-
Temporary skilled (subclass 457); and
-
Working Holiday Maker (subclasses 417 and 462).[3]
1.6
Despite the large number of work rights available under the range of
temporary visa programs, the committee notes that as the principal dedicated
temporary skilled migration program, the 457 visa program has been subject to
several specific and related inquiries and that, to date, much of the temporary
work visa policy focus has been on the 457 visa program.[4]
1.7
The committee further notes that until this inquiry, there has not been
a holistic assessment of Australia's temporary work visa programs.
Scope of the inquiry
1.8
As the terms of reference for this inquiry make clear, the committee was
directed to examine more broadly the impact of Australia's temporary work visa
programs on the Australian labour market and on the temporary work visa holders.
1.9
The committee notes that while the majority of submissions originally
received[5]
addressed matters primarily related to the 457 visa program, certain submitters
also addressed the particular vulnerabilities of migrant workers on Working
Holiday Maker (WHM) and student visas. These matters are covered further in
chapter 2 of this report.
1.10
The value of the broad scope of the inquiry was reaffirmed during 2015
as two separate media investigations exposed a range of exploitative practices
associated with the employment of temporary migrant visa holders other than 457
visa holders.
1.11
First, on 4 May 2015, an investigation by the Australian Broadcasting
Corporation's Four Corners revealed exploitation of certain groups of migrant
workers, many on WHM visas, in the meat processing and horticulture industries.
Issues included the underpayment of wages, long working hours, and sub-standard
living conditions. Unscrupulous labour hire contractors were implicated in many
of the instances of non-compliance with Australia's workplace laws.[6]
1.12
Then, on 31 August 2015, a joint investigation by Four Corners
and Fairfax Media revealed the deliberate falsification of employment records by
employers (franchisees) and the systemic underpayment of the wages and
entitlements of international students working on temporary visas in many
7-Eleven convenience stores across Australia.[7]
1.13
During its inquiry, the committee took evidence on a range of temporary
visa programs including the student, WHM, and 457 visa programs. These visa programs
raised specific and related issues including:
-
impacts on the Australian labour market;
-
impacts on training and skills development in Australia
-
exploitation of vulnerable migrant workers;
-
non-compliance by employers with workplace laws; and
-
gaps in the regulatory system.
1.14
The committee also heard evidence that the interaction between the
various temporary visa programs raised fundamental questions for a liberal
democracy, including the potential unintended consequences of a growing cohort
of indefinitely temporary migrants.[8]
Definition of temporary migrant
work
1.15
With the preceding paragraph concerning the notion of 'indefinitely
temporary' in mind, the committee notes that care needs to be taken when
defining 'temporary migrant work', 'temporary work visa programs' and
'temporary work visa holders'. In particular, the committee notes the point
made by Associate Professor
Joo-Cheong Tham that temporary relates more to a limited right of residence
than it does to the length of time that a person resides in Australia, or
indeed, to the length of time that certain sectors in the Australian economy
may require temporary migrant work:
Temporary migrant workers are only 'temporary' in the sense
that they have a limited right of residence. They are not necessarily
'temporary' in terms of the length of their residence in Australia – many of them
would have lived in this country for years. Neither are temporary migrant
workers, according to this definition, necessarily 'temporary' in terms of
their intention to continue residing in Australia – many aspire to secure
permanent residence in this country. Further, reliance on such workers is not
necessarily 'temporary' – many key sectors like hospitality and agriculture
heavily rely upon temporary migrant workers. These enduring aspects of
temporary migrant work in Australia make it apt to speak of the 'permanence of
temporary migration'.[9]
Conduct of the inquiry
1.16
Notice of the inquiry was posted on the committee's website. The
committee also advertised the inquiry in The Australian and wrote to key
stakeholder groups, organisations and individuals to invite submissions.
Submissions and public hearings
1.17
As of 12 October 2015, the committee has received 63 submissions. The
submissions, answers to questions on notice, tabled documents, and additional
information are listed in Appendix 1.
1.18
To date, the committee has held eight public hearings:
-
18 May 2015 in Melbourne;
-
12 June 2015 in Brisbane;
-
19 June 2015 in Melbourne;
-
26 June 2015 in Sydney;
-
10 July 2015 in Perth
-
14 July 2015 in Adelaide;
-
17 July 2015 in Canberra; and
-
24 September 2015 in Melbourne.
1.19
A list of witnesses who gave evidence at the public hearings is provided
in Appendix 2.
Extension to the inquiry
1.20
On 14 May 2015, the Senate agreed to extend the reporting date to 19
August 2015.[10]
On 11 August 2015, the Senate agreed to extend the reporting date to 14 October
2015.[11]
During this period, the committee focused largely on matters related to the 457
and WHM visa programs.
1.21
Following revelations of the exploitation of international students on
temporary visas across the 7-Eleven network of stores, the committee agreed to
inquire into these matters as well. On 7 September 2015, the Senate agreed to
extend the inquiry with the final report due on 11 February 2016.[12]
1.22
The committee held a hearing in Melbourne on 24 September 2015 related
to the employment conditions of temporary migrant workers employed at 7-Eleven.
Prior to the hearing, the committee invited specific submissions from those
witnesses attending this hearing.
1.23
A subsequent hearing on further matters arising is planned for November
2015.
Acknowledgements
1.24
The committee thanks those organisations and individuals who contributed
to the inquiry by preparing written submissions and giving evidence at public
hearings.
Structure of the interim report
1.25
Chapter 2 summarises the key observations so far and in particular
evidence relating to the 457, WHM and student visa programs. It also summarises
issues that will be explored further during the extension.
Note on references
1.26
References to the committee Hansard are to the official Hansard
with the exception of 24 September 2015 which is the proof Hansard. Page
numbers may vary between the proof and official Hansard transcripts for
24 September 2015.
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