The Australian parliament has passed an important law decriminalising undocumented workers and confirming that workplace protections apply to all workers regardless of their migration status.
Urban cafe with customers being served in the background. Image: UnSplash
New protections for all workers
The law also strengthens accountability of employers that exploit migrant workers, and takes the first step towards visa protections for exploited workers who take action against their employers. These reforms implement recommendations made over years of research by law professors Laurie Berg at UTS and Bassina Farbenblum at UNSW. They are also co-directors of the Migrant Justice Institute, Australia’s first national research and policy organisation advancing the rights of migrant workers.
For years, Berg’s research has revealed that undocumented migrant workers’ exclusion from labour laws intensifies the vulnerability of this group of workers in Australia. The new law provides that workplace protections now apply to all workers regardless of any breach of the Migration Act (for instance working without a visa). This includes application of workers’ compensation for injuries at work, as well as anti-discrimination and sexual harassment protections. The new law repeals the criminal offence of working in breach of visa conditions or working after the expiry of a visa.
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) either under threat of dobbing them into immigration (if they are undocumented workers) or under 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.
Finally we have legal confirmation that workplace protections extend to every worker in Australia, regardless of immigration status. Now, the government must act to enable workers to assert their right without fear of losing their visa. Without further visa protections, exploited workers will remain in the shadows and employer will continue to evade their labour obligations with impunity.
The final Bill included Government amendments that further strengthened these new offences by adopting many recommendations Berg and Farbenblum made in submissions to the Senate Inquiry into the Bill, including:
- Inserting a broad definition of ‘arrangement in relation to work’ into the Bill, to capture and stop the myriad ways that employers may exploit migrant workers. This change will now ensure 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 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 government has also committed to introducing the robust new visa protections for migrant workers that Berg and Farbenblum proposed in their 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 new law contains a new discretionary protection against visa cancellation, which will require a decision maker to take into account certain matters – such as a visa-holders experience of workplace exploitation – before deciding whether to cancel their visa. The government has indicated that this will complement future stronger non-discretionary protections, meaning that migrants pursuing labour claims and meeting certain conditions cannot have their visa cancelled. Berg and Farbenblum’s research indicates that visa protections like these may be a game-changer in bringing migrant worker exploitation out of the shadows and holding unscrupulous employers to account.