PART 6 - IMPACT OF TEMPORARY MIGRANT STATUS
Part 6 —IMPACT OF TEMPORARY MIGRANT STATUS
Casual and ABN Work Especially Disempower Migrant Workers, and Many Perceive Lawful, Secure Jobs as Unavailable to Them
This section considers the ways in which casual and ABN structures give employers significant leverage and profoundly disempower migrant workers. It draws on survey participants’ open responses to illuminate the impact of this insecurity on migrants’ decisions and behaviour, including why migrants accept and remain in these jobs despite underpayment and unlawful conditions.
Casual and ABN work drive underpayment because they give businesses significant leverage over workers
Unlike permanent or fixed-term employees, workers who are retained as a casual employee or work on an ABN:[i]
Lack any guarantee of ongoing work;
Are not provided with a regular pattern of hours, and may be given no or little notice of timetable changes for shifts;
Are assured only a minimum number of hours work on a shift, which may be as little as 2 hours depending on their award;
Have no entitlement to paid holiday or sick leave; and
Have few protections against summary dismissal.
Survey participants in these situations were acutely aware of their employer’s ability to retaliate against any undesirable worker conduct by rostering the worker on fewer or worse shifts, or no shifts at all.
"I realized that working as a casual the employee may will pay less because the wages doesn't include sick leave and holidays … If I have a problem at work and I need to report at HR how can I be sure they will not take retaliation against me? Or I would not lose my job after I reported?"
— Male international student from Colombia, in Victoria"Nothing changed. My job got worse because I complained and they straight to give me more night shifts. In my work place night shifts are always horrible… They considered workplace rules superior to Australian laws. I spoke to all the managers and every level I could reach, including the HR department, but nothing changed. I was forced to comply with the coordinator's demands. This New Zealand coordinator often approached me with racist remarks. He never liked the work I did. He was supposed to train me, but instead of educating me, he always belittled me under the guise of training. I swear I have never been so humiliated in my life. I tried to keep working and keep my mouth shut for 8 months because the feeling of humiliation was less intense than the fear of losing my job. The company didn't follow many Australian standards to make more profit, but what could I do? Even though I reached out to the people I was taught to report issues to, the problems were never resolved. After 8 months, I had to quit because I couldn't take it anymore. This work experience has made me fear working because of these people. As an international student, I have been unemployed for a long time and struggling to stay afloat. I am looking for an internship, searching for jobs related to my profession, but my applications are rejected because I am an international student. I didn't come here to work, but I wanted to gain experience through internships while studying. Surviving and thriving in this country is really difficult. After graduation, we have the right to apply for a graduate visa, but this causes hesitation for me. Maybe it's time for me to return to my own country. I am not wanted in this country. When I try to solve problems, I am silenced…"
Male international student from Turkey, 24, in NSWCasual employees may in principle have general protections against adverse action by an employer for exercising industrial rights. However, workers would have been aware that in practice, if the worker complained about their wages or conditions, the employer could give the worker less or worse work, or no future work at all and assert that this was due to the unpredictable workflow of a casual position rather than adverse action taken against a particular employee. Most ABN workers lack protection against summary dismissal.[ii]
"As they are no much jobs around the employers takes the benefit and reduces the work hours and also threatens to remove from job, says should be thankful that he employed [me]."
— Male international student from India, 25, in VictoriaThe lack of entitlement to sick leave, and prospect of employer retaliation if the worker declines to work their shifts, also forces migrant workers to work when sick or injured.
"They get underpaid, cannot take sick leave, if they try to take one day off from work the employer fires them... we have to manage our accommodation charges, food, rental services, bills, transportation and medical bills also, some people are not from financially strong backgrounds and cannot manage to pay their study loans which results in heavy fines. All this leads to a cycle which is followed by international students, this also includes working overtime by breaching visa conditions in order to pay all these things."
— Male international student from India, 20, in NSWCasual and ABN status also shield the business from legal accountability. It is far more difficult for migrants in these insecure roles to prove underpayment or other labour noncompliance and access remedies. In the absence of accurate payslips, casual workers and ABN workers must adduce evidence of each hour they worked without reference to any regular hours. Workers who are aware of their lack of evidence would be more reluctant to take action.
"Without payslip, so cannot provide evidence"
— Female international student from Malaysia, 22, living in NSWMisclassified workers on an ABN are even further disempowered
Genuine independent contractors are assumed to be reasonably empowered business owners with freedom to enter into contracts on terms that are beneficial to them. However, because few minimum labour standards apply, independent contractors in a more disadvantaged position are left highly vulnerable to extremely low wages, bullying and other mistreatment. Importantly, independent contractors fall outside the jurisdiction of the Fair Work Ombudsman (‘FWO’) without support and with little government oversight (with the exception of the new category of ‘regulated workers’ who may access assistance from the FWO).
Workers who are misclassified or victims of sham contracting are lawfully entitled to all the rights and protections of employees. However, in order to give effect to these protections, these workers must first challenge their unlawful designation as independent contractors. Although they may seek assistance of the FWO to do this, they face an uphill battle to discharge this burden. They must demonstrate that their facially legal independent contracting arrangement in fact misclassifies them, in circumstances where the worker likely has very little understanding of this highly technical area of law, and often with no written contract and scant evidence of the actual nature of the arrangement.
Many workers likely do not seek advice or assistance from the FWO because they wrongly assume that they lack labour entitlements because they are working on an ABN. Some may also be fearful to approach the FWO because they assume that if they draw attention to their engagement on an ABN they will place themselves at risk of punishment and potential immigration consequences for participating in the misclassification.
"I was told to open an ABN and my accountant said that some employers do this to avoid paying benefits and doing the taxes. My salary was less than what was agreed on and I don't feel like I can do anything about it since I'm on ABN and made it look like I agreed on whatever pay I was given anyway."
— Female international from the Philippines, 30, in QueenslandWhen lead firms conduct risk assessments or due diligence for modern slavery or other noncompliance within their operations or supply chain they rarely if ever look for misclassification or sham contracting (or engagement of independent contractors at all).
As a result, dishonest employers who engage in misclassification or sham contracting can generally assume this will not be challenged (or even understood) by the worker or detected by the FWO or auditors.
Business’ leverage is intensified because workers on temporary visas critically depend on retaining these jobs
Many migrants noted that they rely on their job to meet their basic subsistence needs, especially in the context of rising cost of living. Many international students’ open responses noted that they arrived in Australia with debt they needed to repay, including those who personally assumed debt and those whose families have borrowed money to enable them to study in Australia.
"many people do more shifts, they save the money and pay the debts and cannot tell the family back home, no friends or family here in new place, new country, everyone is a student and is sorting their own life, no support from anywhere"
— Female international student from India, 23, in NSWMost do not have the safety net of family and social support structures in Australia, and unlike local workers, they cannot access social security to cover periods of unemployment.
"Workers have to accept the bad condition because of their situation and responsibilities toward family. And as a temporary you are not entitled to any social security."
— Female partner visa holder from India, 30, in QueenslandSome migrants also feel they must retain their job at all costs because it is critical to their immigration pathway. This is especially the case for those seeking to accrue points for a skilled visa through work experience in the job, or who are hopeful that their employer will sponsor them for a further visa. It is also the case for workers whose visa is tied to a specific employer.
"[I worked for] Employer who did not pay me superannuation for 3 years, nor full salaries, whom I did not report for fear that it would affect my visa, a job that I did not leave because I needed to prove the hours for my skill assessment and I was also afraid of not getting any other job than during a pandemic. [I also worked for a] Company that compensated only a small portion of its employees, when they paid us much less than legal. Which I did not report because I ... was afraid that it would affect my visa and that I would lose my job. These are among many other experiences that I lived and endured to achieve the goal of being a resident."
— Female permanent resident from Colombia, 33, in VictoriaMany migrant workers feel confined to the “cash jobs” labour market
Many survey participants shared open responses explaining why they were confined to taking “cash jobs” - a term used to broadly describe underpaid, noncompliant and often unsafe casual or ABN jobs that operate outside Australian labour laws. Indeed, many open responses suggested that migrant workers see cash jobs as a third category of work arrangements alongside regular employment (described as “on TFN” (tax file number) or “on tax”) and working on an ABN.
"I asked my supervisor about my less wage amount and they told me it is for tax jobs. Mine is not included. I work as school cleaner through an agency and i dont know what they meant by that sentence."
— Female international student from India, 23, in SAMigrants face a range of obstacles to employment by businesses that pay lawful wages in safe, respectful workplaces. Upon arrival, migrant workers lack local experience and connections in the Australian labour market that are essential to accessing employment. Migrant workers with poorer English language skills face even greater barriers to accessing the labour market and may be confined to seeking less specialised jobs in which they are aware that they are easily replaceable.
"Not having a good command of English complicates the issue of ... job search, likewise on many occasions the jobs that people get are because they are recommended by a friend and not knowing anyone in Australia it becomes difficult to establish themselves at work. I work delivering homes with the Uber app — this has allowed me to at least be able to pay my rent and my food, but it means that I have to work 8 hours a day to at least earn between 80–100 dollars. In this job you cannot stop, nor enjoy getting to know Australia and much less get sick."
— Male international student from Colombia, 32, in VictoriaAlthough some migrants are able to access somewhat better jobs as they accrue local work experience and connections, many face similar obstacles to new arrivals when they are in the last few months of their visa as employers are reluctant to invest in a worker who may imminently leave.
"It gets harder to secure long-commitment jobs as my visa gets shorter though."
— Male Graduate visa holder from Myanmar, 26, in TasmaniaThe 48-hour per fortnight work restriction on the student visa pushes international students into unlawful and exploitative jobs
International students face a significant additional barrier to employability due to their restricted hours under their visa (48 hours per fortnight during session). This was one of the most common themes expressed across scores of open responses.
Many participants noted that they applied for tens of jobs with lawful conditions, but employers were not willing to consider hiring them because of the cap on their working hours. As a result, they concluded that the only jobs available to them were “cash jobs”.
"I came in 2021, I had full working rights in Australia [during COVID]. I was happy managing everything on my own until July 2023. I had limited working rights due to 24 hours per week restrictions — job finding was difficult for me. I had to do toxic job as limited options for students were there. People took advantage of me offering job but physically forcing them upon me, abusing me verbally and mentally putting a lot of pressure to work flawless. I had to go through severe depression also. I was being sexually abused too."
— Female Bridging visa A holder from Pakistan, 24, in VictoriaSome international students also felt they could not refuse hours that would cause them to breach their 48-hour per fortnight work limitation because of the unpredictability of casual work, and their understanding that their work hours and income are at the complete discretion of their employer. This places them at risk of visa cancellation if the breach were to come to light, making them even more vulnerable and more likely to stay silent in the face of serious exploitation. Although it is now an offence for an employer to coerce a migrant to work in breach of their visa conditions,[iii] it is unlikely that the inherently coercive nature of casual work and misclassified ABN work, and the coercive flow-on consequences of underpaid wages, would be caught by this offence.
"I have a casual job and sometimes I have more hours than I am allowed and how my work fluctuates, I feel committed to accepting those hours because I don't know if at some point they won't give me hours ... It is not enough for rent and food because we have fewer hours and they pay us the minimum."
— Female international student from Mexico, in QueenslandInternational students observed that the restriction on their hours did not enable them to earn sufficient income to cover their tuition and living expenses, resulting in significant stress and acquiescence to exploitative working conditions.
"Had to resort to working in cash and be underpaid so I won't exceed limit of student visa condition."
— Female international student from India, 28, in QueenslandThe hours restriction, and related underpayment and exploitative working conditions pushed many into a vicious cycle in which they needed to then work more hours than permitted to make ends meet.
"I see many students suffering in terrible employment circumstances because of fear of employers. Some institutions underpay workers and expect a full load of work. International students work so hard and still many can't make ends meet due to high school fees, rent, food, medical insurance, childcare, and other living expenses. The capping of hours, while understandably in place to protect students from burnout, also presents a huge challenge for those working for fees. It's a difficult life that international students live. Heartbreaking, backbreaking, demeaning, soul-crushing, lonely life. We see our domestic counterparts getting to enjoy their university experiences and just die a little more inside."
Female international student from Kenya, 31, in the ACTReferences
[i] Fair Work Act 2009 (Cth) s 15A; Fair Work Ombudsman, 'Hours of work' Fair Work Ombudsman (Webpage) https://www.fairwork.gov.au/employment-conditions/hours-of-work-breaks-and-rosters/hours-of-work.
[ii] Although there are exceptions for contractual rights against termination and the new unfair deactivation provisions for delivery riders: Fair Work Commission, 'Who the law protects from unfair dismissal' Fair Work Commission https://www.fwc.gov.au/job-loss-or-dismissal/unfair-dismissal/about-unfair-dismissal/who-law-protects-unfair-dismissal.
[iii] Migration Act 1958 (Cth) s 245AAA.