Protecting Rights and Ensuring Fairness: Australian Government's New Bill To Protect Migrant Workers

The Australian Federal Government has taken significant steps to address the issues raised in the 2019 Report of the Migrant Workers' Taskforce, led by economist Professor Allan Fels. The report shed light on widespread wage underpayments and poor working conditions faced by temporary migrants, with a particular focus on the exploitation of individuals in certain industry sectors. Although the media attention initially centered on 7-Eleven and its franchisees, the report revealed that the problem is more pervasive.

In a joint announcement on 5th June 2023, Ministers Burke, O'Neil, and Giles outlined key legislative changes to the Migration Act 1958 (Cth), which is a Bill currently before the Federal Parliament. These proposed changes aim to address the following areas:

New Criminal Offences

It is proposed to make it a criminal offence for individuals to coerce others into breaching their visa conditions. This measure aims to discourage any form of coercion or exploitation that could lead to violations of visa terms.

Prohibition Notices

Businesses found to have exploited migrants will be prohibited from further hiring individuals on temporary visas through the introduction of prohibition notices. This step aims to ensure that businesses with a history of exploitation are held accountable and prevented from continuing such practices.

Penalties and Compliance Tools

To deter exploitation, penalties and the government’s compliance tools will be enhanced. The exact details of these measures are yet to be announced, but the objective is to strengthen the consequences faced by employers who exploit temporary migrant workers.

Repeal of Section 235 of the Migration Act?

Section 235, which previously made it an offence for non-citizens to contravene visa conditions, will be repealed. This move is intended to remove any barriers or fears that could discourage the reporting of exploitative behaviour by visa holders.

Additional Measures

In addition to these legislative changes, the Government has committed to working collaboratively with unions, industry representatives, and other stakeholders to introduce further reforms that protect the rights of visa holders. These reforms include:

Strengthened Assurance Protocol?

The existing "assurance protocol" will be reinforced to offer better protection to visa holders who seek assistance from the Fair Work Ombudsman. This measure aims to provide a safe avenue for temporary migrants to report exploitation and seek redress.

Whistle-blower Visas

A pilot program for a "whistle-blower visa" will be introduced, enabling migrant workers to remain in Australia while pursuing claims of exploitation. This initiative recognises the vulnerability of visa holders and aims to support those who come forward to report wrongdoing.

Extended Job Search Period?

Visa holders who have been exploited will be given an extended period of up to 180 days to find a new employer sponsor. This provision is aimed at relieving the pressure on workers to continue in exploitative conditions due to the fear of losing their visa status.

Implementation

To ensure effective implementation of these reforms, the Government will allocate an additional $50 million in funding to the Australian Border Force. This funding will be utilised to enforce the changes using new compliance tools, the details of which are yet to be revealed. Moreover, existing financial sanctions will be strengthened, with some penalties potentially being tripled to increase their deterrent effect.

Furthermore, the Government is committed to strengthening the separation between the Fair Work Ombudsman and the Department of Home Affairs. This step aims to encourage whistle-blowing and protect visa holders who report employer exploitation.

What should an employer do?

As the reforms are implemented in the coming weeks and months, businesses engaging visa holders must closely monitor the changes to ensure compliance. Violations that result in the exploitation of migrant workers may lead to future hiring bans, potentially impacting the operations and reputation of the businesses involved. Individuals who interact with visa holders, including management, human resource staff, and legal advisors, should familiarise themselves with their obligations and stay informed about the introduction and enforcement of criminal sanctions related to visa breaches. Conducting internal training sessions on these matters once more information becomes available, is advisable to ensure compliance.

By adhering to these reforms, businesses can not only protect the rights of visa holders but also safeguard themselves from potential legal consequences and reputational damage.

Overall, the Australian Government's proactive approach seeks to combat the exploitation of temporary migrant workers, create a fairer working environment, and encourage responsible practices among employers.

About the Author

Maggie Taaffe is the Principal Lawyer at AHWC Immigration Law. She assists all types of business with compliance as business sponsors, parties to Labour Agreements, and employment of migrant workers. If you need assistance with your compliance obligations under the Migration Act/Fair Work, including provision of training and tailored compliance assistance materials, contact her via email - [email protected]

www.ahwc.com.au