New visa portability rights empower sponsored migrants to leave exploitative employers

Today, in Australia, three sets of reforms set new global best practice standards for protection of migrant workers on temporary visas and prevention of exploitation. 

New laws taking effect today introduce powerful portability rights for employer-sponsored migrant workers – among the strongest in the world. Globally, employer-tied visas trap migrant workers in exploitative work and create a profound power imbalance between abusive employers and migrants who cannot complain or leave their job.  

As of today, many employer-sponsored migrant workers in Australia will be able to: 

• leave their sponsor and remain in Australia for up to 180 days while finding an alternative sponsor (previously 60 days)

• work for any employer in any industry in Australia during that transition period (or choose to not work)

• transition again, for a total of up to 365 days during the course of their visa.   

This will shift the power imbalance between sponsoring employers and migrant workers: migrants who are being underpaid or mistreated at work can now walk away without risking their stay in Australia. They will have time to find a new sponsor, and be able to support themselves while searching. This will hopefully catalyse a race to the top, in which employers will need to compete for migrants by offering safe and fair jobs because migrants who were previously trapped in poor jobs can now leave for better employers. 

Unlike the few other countries that enable exploited migrants to change sponsoring employers, the Australian laws do not require migrants to report exploitation or demonstrate that they have been victims of civil or criminal exploitation in order to obtain permission to leave their employer and remain in the country while finding a new sponsor.

The new portability rights will apply to 

• Temporary Skill Shortage visa (subclass 482) 

• Skilled Employer Sponsored Regional (Provisional) visa (subclass 494) 

• Temporary Work (Short Stay Specialist) visa (subclass 400) 

• Training visa (subclass 407) 

• Temporary Work (Skilled) visa (subclass 457) 

• A number of streams of the 403 Temporary Work (International Relations) visa (other than PALM workers) and some streams of the 408 Temporary Activity visa 

Unfortunately, these provisions do not extend to Pacific Islanders in the Pacific Australia Labour Mobility scheme. It remains too difficult for these workers to change their employer without separating from the scheme. 

For more information see: Migration Amendment (Work Related Visa Conditions) Regulations 2024 

Today, we are also a step closer to enactment of a new Workplace Justice Visa that enables migrant workers to remain in Australia to take action against an exploitative employer. Under new regulations enacted today, a new Workplace Justice Visa, proposed in our Breaking the Silence report,  will be available to a worker who can produce a prescribed certificate by government or another eligible certifier that they are undertaking a ‘workplace justice activity’ as prescribed by the Minister. A legislative instrument will soon set out the details for the certification that will underpin the WJ visa pilot. For more information see: Migration Amendment (Workplace Justice Visa) Regulations 2024 

Also today, new protections in the Migration Amendment (Strengthening Employer Compliance) Act 2024 come into effect. These include protections for undocumented workers, new criminal offences for employers who coerce migrants to breach their visa conditions or coerce migrants to acquiesce to poor treatment under threat of immigration consequences, and bans on employers who mistreat workers hiring additional workers on a temporary visa. For more information, see our earlier post on the passage of the law in February.  

Recovering lost wages is nearly impossible for Australia’s underpaid migrant workers

'Virtually impossible' for migrant workers to hold employers accountable for unpaid wages

Australia's law system is seen as "hollow" by migrant workers, who rarely chase up underpayment from their employers, according to a new report.

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Half of 4,000 interveiwed migrant workers being underpayed, research shows

Of the 4,000 migrant workers interviewed, over half were underpaid. Most knew this, but 9 in 10 did nothing. One went to court – but recovered none of their wages. It is not clear that wages claims are being systematically resolved via other legal forums or by the Fair Work Ombudsman, the report said.

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Recovering lost wages is nearly impossible for Australia’s underpaid migrant workers. Here’s how to fix the problem

The widespread underpayment of migrant workers in Australia is now well-documented. The vast majority never recover the wages they are owed.

In 2009, the federal “small claims” court process was established in the Federal Circuit and Family Court of Australia. The idea was to give workers a simple and accessible forum to claim unpaid wages and entitlements from their employers – without needing a lawyer.

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REPORT: All Work No Pay

Wage theft is widespread – but very few migrant workers ever recover their wages.

Our report explains why the courts are failing migrant workers and outlines what the government can - and must - do to fix this problem.

Australian survey on international student exploitation planned

A survey examining the degree to which international students are exploited while working in Australia is launching another edition in July.

The Migrant Justice Institute, in a conversation with The PIE News, explained how the working conditions of international students in Australia need another round under the spotlight through its national temporary migrant survey.

“Lots of organisations, and indeed the government have been crying out for us to do another survey to really try and determine what exploitation looks like,” said Laurie Berg, co-executive director of the Migrant Justice Institute, referring to the organisation’s 2016 and 2019 surveys on the issue, as well as a special Covid-specific survey in 2020.

On July 8, the survey will launch inviting universities across Australia to get their international students to take part, asking about issues like wage deduction.

New Australian law is a victory for migrant workers

Today, the Australian parliament passed an important law decriminalising undocumented workers and confirming that workplace protections apply to all workers regardless of their migration status.

The law, which will commence on 1 July 2024, also strengthens the accountability of employers that exploit migrant workers, and takes the first step towards visa protections for exploited workers who take action against their employers.

Together with our allies, MJI has developed and been campaigning for these reforms for many years. 

IMPORTANT NEW PROTECTIONS FOR UNDOCUMENTED WORKERS 

• The new law repeals the criminal offence of working in breach of visa conditions or working after the expiry of a visa.

• The amendments confirm that workplace protections apply to all workers regardless of any breach of the Migration Act. This includes workers’ compensation for injuries, as well as anti-discrimination and sexual harassment protections. (The Fair Work Act was amended last year to ensure that all workers are also covered by that federal employent law, regardless of any breach of migration laws.)

NEW EMPLOYER OFFENCES and blacklisting

• The law introduces new offences for employers. One criminalises employers who coerce migrants to work in breach of their visa conditions. Further offences criminalise employers who coerce migrants to acquiesce to unacceptable arrangements (such as underpayment, unwanted sexual conduct or poor accommodation) under threat of dobbing them into immigration (if they are undocumented workers) or threat of some other adverse impact on the worker's immigration status. This creates a criminal offence where an employer, for example, threatens a backpacker that they won't sign off on work documents they need to get another working holiday visa unless the backpacker acquiesces to sex with the employer.

• The law introduces other new employer sanctions. Businesses that have been found to have engaged in migrant worker exploitation may be added to a new Prohibited Employer List, which bans those businesses from hiring new migrant workers for a period of time.

Importantly, the Government has further strengthened these new offences by introducing amendments to its bill in the Senate that adopt key recommendations MJI made in submissions and testimony to the Senate Inquiry into the Bill. These include:

• Inserting a broad definition of ‘arrangement in relation to work’ into the Bill, to capture and stop the myriad ways that employers may coerce migrant workers. This change ensures that employers cannot lawfully coerce workers to accept or agree to a broad range of exploitative conditions including work-related and non-work related activities (including arrangements in relation to unsafe housing, surrendering a passport and sexual favours).

• Ensuring that company directors and other third parties who are ‘accessories’ to unlawful behaviour can also be be added to the new Prohibited Employer list. This will now ensure that these individuals cannot evade accountability by simply closing the business and setting up a new similar company (corporate phoenixing).

THE FIRST STEP TOWARDS GROUND-BREAKING NEW VISA PROTECTIONS FOR EXPLOITED MIGRANT WORKERS 

The government has committed to introduce the robust new visa protections for migrant workers that we proposed in our Breaking the Silence report, in collaboration with Human Rights Law Centre and a broad coalition of community, union and business partners. These include a guaranteed protection against visa cancellation for migrant workers who bring labour claims, and a pilot short term visa to enable migrant workers to pursue labour claims at the end of their stay. 

The legislation introduced today contains a new discretionary protection against visa cancellation, which will require a decision-maker to take into account certain matters – such as a visa-holder's experience of workplace exploitation – before deciding whether to cancel their visa. During the Senate debate on the Bill, the government confirmed that this will complement future stronger non-discretionary protections that it will consultatively develop over the coming ‘weeks and months’. These protections, to be enacted through regulations, will establish that migrants pursuing labour claims and meeting certain conditions cannot have their visa cancelled.

In seeking to formalise this further commitment from the government during the Senate debate, Senator Nick McKim noted:

“In concluding my remarks on this legislation, I want to acknowledge the Human Rights Law Centre and also the Migrant Justice Institute. Both of those organisations not only provided really quality evidence to the Senate inquiry into the bill but also led work on the 2022 Breaking the silence report, which proposed whistleblower protections to enable migrant workers to address exploitation. That report was endorsed by a coalition of 40 trade unions, migrant rights academics and faith based organisations. That report was critical to helping the Greens understand the scope and seriousness of the problem, and it will continue to guide our consideration of migrant worker rights and protections in Australia more broadly. So I want to thank everyone involved for that invaluable contribution to the public discussion on migrant worker policy reform in Australia.”

We look forward to continuing to work with our powerful coalition, and with the government, to ensure that the implementation of these reforms creates strong new avenues for migrant workers to take action to address workplace exploitation. 

Ending the silence on migrant worker exploitation

CHOICE | Andy Kollmorgen

“Berg, a senior lecturer in law at the University of Technology Sydney and an author of the 2017 report, says the post-COVID influx of international students and backpackers means exploitation is likely back where it was before.“

I think that we as a society have come to expect low prices when it comes to things like fruit and vegetables and takeaway shops on sort of the lower end of the restaurant and hospitality scale. But the business model often relies on underpayment of temporary visa holders."

Over 70,000 people live in Australia illegally ... many are vulnerable to exploitation

ABC | Katri Uibu

“University of Technology Sydney academic Laurie Berg said: "I think employers routinely take advantage of that and it actually is a business model in some industries, where employers will seek out undocumented workers in order to avoid compliance with Australian labour law."

Submission: AHRC Amendment (Costs Protection) Bill 2023 [Provisions]

In our submission to the Senate Standing Committees On Legal And Constitutional Affairs’ inquiry into the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 [Provisions], we welcome the introduction of an equal access costs model to federal anti-discrimination laws in Australia.

We strongly support the passage of the Australian Human Rights Commission (Costs Protection) Bill 2023 (Cth) (Costs Protection Bill) in its current form.

We are proud to be part of the Power to Prevent Coalition that has advocated for this reform and congratulate the Government on introducing the Bill.

In early 2024 we will release a new report on the small claims process, All Work No Pay, which will strongly encourage the Government to introduce similar amendments in relation to small claims brought under the Fair Work Act 2009 (Cth).

Backpackers spared from migration overhaul

AFR | Michael Read

“Advocates for limiting the working holiday program to one year argue the requirement to work in the regions left workers open to exploitation. A survey by the Migrant Justice Institute found that almost half of all working holidaymakers reported being paid well below the minimum wage.”

MJI calls for increased funding for migrant workers' legal support

The Migrant Justice Institute has called on the Australian Government to provide multi-year funding for community legal services to provide dedicated support for migrant workers. 

These services would include general education about employment law and workers’ rights, as well as legal assistance where required.

In our submission to the Independent Review of the National Legal Assistance Partnership, we draw on data from our national surveys and forthcoming report on the small claims system to make evidence-based recommendations for reform.  We outline how our survey data shows that exploitation of migrant workers is widespread, and ongoing. 

Yet despite this, nine out of ten migrant workers suffer wage theft in silence and take no action to enforce their rights.  Our research shows that community legal centres, unions and migrant worker centres bring about the best outcomes for vulnerable workers seeking to enforce their rights.  However, CLCs and others cannot meet demand for services and it is extremely rare for migrants to go to court to enforce their rights.

OUR RECOMMENDATION

The Government should provide dedicated, multi-year, recurrent funding for Legal Aid Commissions and Community Legal Centres to provide employment law assistance to vulnerable workers. This would cover all aspects of employment and equality law, including:

wages and entitlements | dismissals | sexual harassment | bullying |
equality law (anti-discrimination and general protections) | victimisation

And would take the form of:

• Community legal education

• Legal advice and ongoing casework

• Program design, monitoring and evaluation

Labor could ignore calls for working holiday visa limits

Australian Financial Review | Michael Read and Tom McIlroy

“Advocates for limiting the working holiday program to one year argue the requirement to work in the regions left workers open to exploitation. A survey by the Migrant Justice Institute found that almost half of all working holidaymakers reported being paid well below the minimum wage.”

(Subscriber only article)

New Bill responds to our recommendations but does not go far enough

In July 2023 the Australian government introduced the Migration Amendment (Strengthening Employer Compliance) Bill 2023 (Cth) responding to two of our key recommendations.

Working with Human Rights Law Centre and our other allies, Migrant Justice Institute has made submissions on the Bill, advocated for its amendment and will testify before the Senate committee inquiring into the Bill.

About the bill

The bill introduces a provision that importantly confirms that workplace protections apply to all workers regardless of any breach of the Migration Act 1958. The Bill also creates a new legislative vehicle intended to provide protection against visa cancellation for exploited workers. But we argue it does not go far enough.

(The Bill also introduces new offences for employers who coerce migrant workers with threats of immigration consequences, and increased enforcement tools for the Department of Home Affairs to police exploitation.)

Why we oppose the proposed vehicle for protection against visa cancellation

Late last year, our report Breaking the Silence set out a model for ‘whistle-blower’ protections for migrant workers. That report was endorsed by over 40 organisations – including trade unions, service providers, peak migration bodies, trade union, the NSW Anti-Slavery Commissioner, churches and business leaders. We proposed an Exploited Worker Visa Guarantee: a guarantee against visa cancellation for breach of visa conditions, for temporary workers who take action against employers.

The Bill proposes to introduce a new sub-s 116(1A), that would allow the Minister the power to specify in Regulations certain information that Department of Home Affairs delegates ‘may,’ ‘must’ or ‘must not’ be considered when deciding whether a ground of cancelation arises before deciding whether to cancel a visa on discretionary grounds. It also allows the Minister to specify the weight to be given to that information.

This model still allows Department delegates complete discretion to cancel a visa. It does not provide an assurance against cancellation which is critical to ensure that international students and other temporary visa holders come forward against exploitation. It would, at best, introduce a regime under which the Minister (through his delegates) could give ‘significant weight’ to evidence of workplace exploitation, when deciding whether or not to cancel a visa.

Our recommendation: The amendments to s 116 of the Act should not be passed. Instead, the government should issue regulations under s 116(2), prescribing circumstances in which a visa must not be cancelled, where there is prescribed evidence of exploitation.

“Head in the sand”: Student work, rebate changes to inflame childcare shortages

Sydney Morning Herald | Angus Thompson

“University of Technology, Sydney, Associate Professor Laurie Berg, an expert in temporary labour migration, said that as of last month, there were 529,000 international students in the country. She said, according to a 2020 survey she conducted, 65 per cent of student visa holders held jobs.”

Albanese government to tackle exploitation

Canberra Times | Justine Landis-Hanley

“Associate Professor Laurie Berg, co-executive director of the Migrant Justice Institute, said the changes could be a ‘game-changer for stopping the exploitation of migrant workers in Australia’.

‘For the first time, migrant workers could safely address wage theft and walk away from employers who exploit them without risking their visa,’ she said.”

Webinar 22 June - Visas to empower migrant workers to address exploitation

Visas to Empower Migrant Workers to Address Exploitation

22 June 2023  

1:00-2:30pm GMT (9am New York; 4pm Doha; 8pm Bangkok)

A global discussion on innovations in migration policies that can enable migrant workers to remain in the country of employment and recover unpaid wages without risking their immigration status.

Labour exploitation cannot be stopped unless migrant workers can report abuses without fear of losing their visa or being deported. Governments can solve this problem by developing visas and other migration policy solutions that empower migrant workers to safely enforce their labour rights.

If you missed the excellent discussion you can now view the recording. It is also available with interpreting in العربية (Arabic), Español (Spanish), Français (French), and Pусский (Russian) on a computer desktop (passcode: 4ziM.#Ky, select globe icon).

Confirmed Speakers: 

• Shannon Lederer, AFL-CIO | Deferral of removal for undocumented workers in the U.S.

• Richard Prosser & Simon Barrett, New Zealand Ministry of Business Innovation & Employment | New Zealand Migrant Exploitation Protection Work Visa

• Lilana Keith, Platform for Undocumented Migrants (PICUM) | Finland Residence Permit Due to Exploitation

• Adrian Pereira, North South Initiative | Lessons from Special Pass in Malaysia

• Assoc. Prof. Laurie Berg, Migrant Justice Institute & Law Faculty, University of Technology Sydney | Proposed Workplace Justice Visa in Australia

• Moderator: Neha Misra, Solidarity Center

 
Introduction by Assoc. Prof. Bassina Farbenblum, Migrant Justice Institute & UNSW Law and closing remarks by Prof. Heaven Crawley, United Nations University Center for Policy Research & MIDEQ 

The webinar is hosted by Migrant Justice Institute, Solidarity Center, the ILAW Network, MIDEQ, United Nations University - Centre for Policy Research, UNSW and UTS. 

About the Project

Following our 2021 report on promising global initiatives to address wage theft, Migrant Justice Institute, in partnership with Solidarity Center, the ILAW Network and MIDEQ, is undertaking new research and advocacy around effective laws and systems aimed at wage recovery. Please see the project webpage for more information and to sign up for updates on webinars and new research.

New Brief: Migration settings that enable exploited migrant workers to leave abusive employers and stay to pursue labour remedies

RESEARCH AND POLICY BRIEF | Avenues for exploited migrant workers to remain in their country of employment to pursue labour remedies

Exploited migrant workers often don't raise complaints because they fear losing their visa or being deported. There is generally no opportunity for migrant workers to pursue wage claims at the end of their stay because they are required to immediately leave the country. As a result, abusive employers are never held to account, and the vast majority return home without the wages they are owed. Pursuing claims after they leave is extremely difficult.

Governments must change this situation by reforming migration laws and policies that prevent migrant workers from taking action.  Our new Research and Policy Brief considers migration frameworks that would enable migrant workers to safely speak up, leave abusive employers without losing their visa, or temporarily remain in their country of employment at the end of their stay in order to recover the wages they are owed and hold abusive employers to account.

The Brief includes current examples of

• visa portability for exploited migrant workers to bring claims and find a new sponsor,

• short term visas with work rights to pursue wage claims at the end of a migrant worker’s stay,

• deferral of removal (with work rights) for undocumented workers who pursue labour claims, and

• visas for victims of trafficking and criminal wage theft and exploitation to pursue civil labour claims.

These provide models – and cautionary lessons – on which governments and advocates can draw to design migration reforms that effectively provide exploited migrant workers with access to justice.

It is accompanied by a more detailed case study of recent advances in the United States. These include new policies enabling migrant workers, including undocumented workers, to remain in the country for up to two years with work rights in order to pursue unpaid wages and other labour claims - with certification from local, state and federal labour agencies and other enforcement bodies

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Australian government accepts our recommendation to confirm labour law protections for all migrant workers

We are excited to share that the Australian government has just introduced a Bill confirming that no migrant worker is excluded from labour protections on the basis of their immigration status in Australia.

We and our allies have campaigned for this change for a number of years because conflicting case law has left open the possibility that undocumented workers are not entitled to statutory labour protections (on the basis their employment contract is void for illegality because they breached the Migration Act). This uncertainty has allowed employers to evade responsibilities including minimum wage and workers compensation payments for undocumented migrants’ workplace injuries. 

The Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) sends an important signal on the equal application of Australian laws to all workers regardless of immigration status. It is also important that the Migration Act itself now be amended to clarify migrant workers are also all equally protected under other federal or state statutes such as workers’ compensation laws.