Need to know
- In a recent survey of 959 migrant workers, 62% reported experiencing at least one form of exploitation
- Until recently, a section of the Migration Act meant speaking out could put a worker's visa in jeopardy
- An update to the legislation added new protections aimed at preventing employers from continuing to exploit workers with impunity
It's disturbing to consider that many of the workers from overseas we may see on the job at our local cafes and restaurants over the holiday season could be victims of exploitation.
But it's well documented that a lot of people who make their way to Australia on a temporary work visa end up being underpaid and overworked – especially in food services jobs.
One estimate from 2023 was that between 5% and 16% of recently arrived migrants were being paid less than the minimum wage, equating to somewhere between 27,000 and 82,000 workers.
In a recent survey of 959 migrant workers conducted by the Victoria-based Migrant Workers Centre, 62% of respondents reported experiencing at least one form of exploitation. Topping the list was being shortchanged on wages or having to work in unsafe conditions. More than three out of 10 reported being injured at work.
The majority of employers treat migrant workers fairly, but some abuse their roles as sponsors, holding the threat of visa cancellation over their heads to compel them to work longer hours, accept lower pay, or put up with abusive behaviour.
The employer has the power to dob them into the immigration authorities, and the prerogative to lie about violations of their visa restrictions.
The Catch-22 of Section 235
Until recently, for a worker to report that they were being compelled to work more hours than allowed would have been an act of self-sabotage. That's because reporting it means you're doing it, regardless of the reasons. And overstepping work restrictions would have been a visa violation under Section 235 of the Migration Act, punishable by visa cancellation.
The longstanding Catch-22 has enabled employers to exploit workers with impunity. As part of our report earlier this year, Commander Clinton Sims of the Australian Border Force told us that stopping migrant worker exploitation remains a priority, but catching employers at it isn't easy.
Referring to a July 2023 crackdown in which Border Force officers visited 266 workplaces across Australia and issued 18 infringement notices, Sims told us "the work that goes into these cases is substantial. Every instance where a business is fined is preceded by months of monitoring, interviews, and reviewing payslips and financial documents".
Removing barriers to reporting
Advocates have long called for Section 235 to be repealed and for extra whistleblower protections to be added to the legislation, something that finally happened – with a conspicuous lack of fanfare – earlier this year.
We recently asked the Department of Home Affairs for an update and a spokesperson confirmed that the Migration Act had been updated, as advocates had hoped, through the Migration Amendment (Strengthening Employer Compliance) Act 2024.
The underlying aim is to encourage the early reporting and resolution of workplace issues by addressing the fear that if they assert their workplace rights, the employer may vexatiously report them to have their visa cancelled
Department of Home Affairs spokesperson
Section 235 "was identified as a barrier, preventing temporary migrants from reporting issues of exploitation or otherwise asserting their rights under workplace laws," the spokesperson says.
New reporting protections were also added that mean visas won't be cancelled for non-compliance "if there is a connection between that non-compliance and workplace exploitation".
"The underlying aim is to encourage the early reporting and resolution of workplace issues by addressing the fear that if they assert their workplace rights, the employer may vexatiously report them to have their visa cancelled," the spokesperson tells us.
The majority of employers treat migrant workers fairly, but some abuse their roles as sponsors, holding the threat of visa cancellation over workers' heads.
Holding exploitative employers to account
Unions NSW is one of a handful of organisations that have been at the forefront of trying to bring about better migrant worker protections.
Secretary Mark Morey tells CHOICE that the issue "has been a dark stain on Australia's reputation, with our research showing at least 60% of foreign language job advertisements offering illegal wages, alongside shocking cases of workers being paid in food rations and enduring physical abuse".
The threat of criminal prosecution and loss of visa has "historically silenced exploited workers", Morey says. Removing this could be a game changer, but the effectiveness of the new protections "will ultimately depend on robust enforcement and workers feeling safe to speak up".
The success of this reform requires ongoing monitoring and evaluation to track the number of reports, the outcomes of investigations, and the broader impact on migrant workers' conditions
Migrant Workers Centre spokesperson
A Migrant Workers Centre spokesperson tells CHOICE that the legislative change "creates an opportunity to expose systemic issues and hold exploitative employers accountable, aligning Australia's labour and migration policies with international human rights standards".
But the new protections will only work if workers know about them and language-appropriate reporting mechanisms are in place. Enforcement agencies must also have the resources to act on reported abuses, the spokesperson says.
"The success of this reform requires ongoing monitoring and evaluation to track the number of reports, the outcomes of investigations, and the broader impact on migrant workers' conditions."
Relying on third parties to confirm exploitation
As part of the rollout of the updated Migration Act, a two-year pilot program – called Strengthening Reporting Protections – is currently underway. It dictates how the whistleblower protections work.
Cases of exploitation will need to be confirmed by accredited third parties with expertise in workplace laws, including unions, community legal centres and the Fair Work Ombudsman. With the evidence in hand, these organisations can issue a certificate that confirms the connection between the breach of a visa condition and workplace exploitation.
Our ultimate goal remains ensuring every worker in Australia, regardless of their visa status, receives the fair treatment they deserve
Unions NSW Secretary Mark Morey
Once the certificate is issued, workers are free to report that they're being forced to work longer hours than allowed or suffering other forms of exploitation without having their visas cancelled.
Other new protections
A second component of the amendment – called Workplace Justice – adds a range of new protections for migrant workers. It's also being rolled out as a two-year pilot and includes:
- making it an offence to use a person's migration status to exploit them in the workplace
- prohibiting employers who seriously or repeatedly exploit migrant workers from hiring them
- giving the Australian Border Force new powers to enforce anti-exploitation rules
- increasing penalties for employers who exploit workers
- allowing workers to extend their visas to pursue workplace claims.
The pilot programs are works in progress and may be adjusted depending on their effectiveness.
"It's too early to measure the full impact of these reforms, but we're cautiously optimistic about their potential to drive real change," says Mark Morey.
"We'll continue pushing for stronger enforcement mechanisms and better wage recovery systems if needed. Our ultimate goal remains ensuring every worker in Australia, regardless of their visa status, receives the fair treatment they deserve."
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