Many migrant workers are international students and backpackers who are grossly underpaid and face numerous non-compliance issues from their employers. However, migrant workers are often reticent to report these experiences of labour exploitation. Motivated to understand these issues in an under-researched area, Dr Laurie Berg from the Faculty of Law at UTS and Bassina Farbenblum from the Faculty of Law at UNSW conducted the National Temporary Migrant Work Survey in 2016 – the most comprehensive study of wage theft and working conditions among international students, backpackers and other temporary migrants in Australia.
“In seeking to improve the working lives of migrants, we first identified untested areas where new knowledge could transform interventions by governments, unions and business,” says Dr Berg. This guided the development of the National Temporary Migrant Work Survey in collaboration with twenty community legal centres, unions, migrant worker support organisations and anti-trafficking groups who were involved in research design and recruitment. These included the United Workers’ Union, the Salvation Army Freedom Partnership, Redfern Legal Centre, the ACTU and a grassroots network of Korean Working Holiday Makers.
In seeking to improve the working lives of migrants, we first identified untested areas where new knowledge could transform interventions by governments, unions and business,
— Dr Laurie Berg, Faculty of Law
The survey was conducted online in 12 languages in addition to English between September and December 2016, and was open to any individual who had worked in Australia on a temporary visa. Questions focused on workers’ lowest paid jobs, their experiences of exploitative employment practices and their access to justice. Anonymous responses from 4,322 temporary migrants of 107 nationalities working in a range of jobs across all Australian states and territories showed the serious nature and extent of wage theft, with 62% of workers receiving under the minimum wage. Many non-compliance issues were also identified, including workers being forced to pay employers to obtain their jobs or pay them cash back out of their wages, instances of passport confiscation by employers, and employers threatening to report workers to the Department of Immigration. However, while 75 per cent of respondents knew they were being underpaid and exploited, they chose not to pursue legal action. Dr Berg and Ms Farbenblum found that these decisions were based on workers’ awareness of the legal complexities of making a wage claim, including the lack of any forum dedicated to processing such claims.
Dr Berg explains what the next stage of the research involved. “Qualitative and quantitative empirical methods were combined with theoretical analysis to provide detailed recommendations for reform to laws, policies and service-provision.” These were used to interpret the survey results and provide guidance for parliamentarians, government bodies and migrant advocacy organisations. The results were then released in two major public reports: Wage Theft in Australia: Findings from the National Temporary Migrant Work Survey (2017) and Wage Theft in Silence: Why Migrant Workers Do Not Recovery Their Unpaid Wages in Australia (2018).
Since their release, the two reports have influenced the findings and recommendations of every major national and state law reform inquiry on wage theft. They have also influenced legislative changes across jurisdictions, including in South Australia and Victoria. The Federal government has also indicated its intention to follow the researchers’ recommendations to introduce a labour hire licensing scheme and higher penalties for employers who intentionally engage in systemic underpayment.
In 2018, the reports were widely cited by parliamentarians, including then Minister for Employment Michaelia Cash and Federal Opposition leader Bill Shorten. Shadow Ministers Brendan O’Connor, Shayne Neumann and Lisa Chesters also issued a joint media release calling on governments to address the reports’ findings. The 2018 report was referenced in Commonwealth Hansard on the 29 October of the same year, and the Federal Department of Jobs invited the researchers to a confidential interdepartmental briefing in Canberra to share research findings and recommendations. In late 2019 the Attorney-General’s Department released two discussion papers on wage theft and has called for further submissions on the topic, indicating its support for further changes.
The research also provided strategic advice to a network of migrant support services, faith-based NGOs, unions and legal service providers across NSW. It played an instrumental role in making a case for funding a new NSW Migrant Employment Legal Service, established by a consortium of Community Legal Centres in 2019.
The reports received high praise from Unions NSW, an organisation that has worked tirelessly to advocate for migrant workers and end their exploitation. Thomas Costa, Unions NSW’s Assistant Secretary, notes that the union movement is ‘heavily indebted’ to the work of Dr Berg and Ms Farbenblum. “The extensive research they have conducted regarding the experiences of migrant workers on temporary visas has been of great use,” Mr Costa says. “It has informed a large part of our work to assist migrants with their workplace and visa issues.”
The reports provide concrete statistics and numbers which support our case studies when working on law reform policy submissions.
— Regina Featherstone, Migrant Employment Legal Service
Regina Featherstone of the Migrant Employment Legal Service also stresses the significance of the research. “The reports provide concrete statistics and numbers which support our case studies when working on law reform policy submissions,” she says. “The combination of our experience in practice with the findings of the reports mean together, we can provide persuasive evidence to campaign for policy and law reform on behalf of vulnerable and disadvantaged clients.”
In 2020, Dr Berg and Ms Farbenblum are following up this research with a new study documenting the human rights impact of the COVID-19 pandemic and related government policies on international students, including a nationwide survey launching in mid-June. The migrant workforce has been significantly affected by COVID-19, with many international students and backpackers losing jobs in industries strongly affected by social distancing measures.
When the economy reopens, many temporary migrants will be more vulnerable to exploitation due to their highly precarious financial status and desperation for work in a more tightly constrained labour market.
For Dr Berg and Ms Farbenblum, it is important things don’t revert to the status quo, and they will continue push for the establishment of a new forum dedicated to processing individual wage claims to provide migrant workers with access to justice, and further legislative changes that will ensure the exploitation of migrant workers in Australia becomes a thing of the past.
Research team
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Associate Professor, Faculty of Law -
Bassina FarbenblumFaculty of Law, UNSW
Faculty
- Faculty of Law
