Today, the Australian parliament passed an important law decriminalising undocumented workers and confirming that workplace protections apply to all workers regardless of their migration status.
The law also strengthens the accountability of employers that exploit migrant workers, and takes the first step towards visa protections for exploited workers who take action against their employers.
Together with our allies, MJI has developed and been campaigning for these reforms for many years.
IMPORTANT NEW PROTECTIONS FOR UNDOCUMENTED WORKERS
The new law repeals the criminal offence of working in breach of visa conditions or working after the expiry of a visa.
The amendments confirm that workplace protections apply to all workers regardless of any breach of the Migration Act. This includes workers’ compensation for injuries, as well as anti-discrimination and sexual harassment protections. (The Fair Work Act was amended last year to ensure that all workers are also covered by that federal employent law, regardless of any breach of migration laws.)
NEW EMPLOYER OFFENCES and blacklisting
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) under threat of dobbing them into immigration (if they are undocumented workers) or 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.
The law introduces other new employer sanctions. Businesses that have been found to have engaged in migrant worker exploitation may be added to a new Prohibited Employer List, which bans those businesses from hiring new migrant workers for a period of time.
Importantly, the Government has further strengthened these new offences by introducing amendments to its bill in the Senate that adopt key recommendations MJI made in submissions and testimony to the Senate Inquiry into the Bill. These include:
Inserting a broad definition of ‘arrangement in relation to work’ into the Bill, to capture and stop the myriad ways that employers may coerce migrant workers. This change ensures 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 company 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 FIRST STEP TOWARDS GROUND-BREAKING NEW VISA PROTECTIONS FOR EXPLOITED MIGRANT WORKERS
The government has committed to introduce the robust new visa protections for migrant workers that we proposed in our 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 legislation introduced today contains a new discretionary protection against visa cancellation, which will require a decision-maker to take into account certain matters – such as a visa-holder's experience of workplace exploitation – before deciding whether to cancel their visa. During the Senate debate on the Bill, the government confirmed that this will complement future stronger non-discretionary protections that it will consultatively develop over the coming ‘weeks and months’. These protections, to be enacted through regulations, will establish that migrants pursuing labour claims and meeting certain conditions cannot have their visa cancelled.
In seeking to formalise this further commitment from the government during the Senate debate, Senator Nick McKim noted:
“In concluding my remarks on this legislation, I want to acknowledge the Human Rights Law Centre and also the Migrant Justice Institute. Both of those organisations not only provided really quality evidence to the Senate inquiry into the bill but also led work on the 2022 Breaking the silence report, which proposed whistleblower protections to enable migrant workers to address exploitation. That report was endorsed by a coalition of 40 trade unions, migrant rights academics and faith based organisations. That report was critical to helping the Greens understand the scope and seriousness of the problem, and it will continue to guide our consideration of migrant worker rights and protections in Australia more broadly. So I want to thank everyone involved for that invaluable contribution to the public discussion on migrant worker policy reform in Australia.”
We look forward to continuing to work with our powerful coalition, and with the government, to ensure that the implementation of these reforms creates strong new avenues for migrant workers to take action to address workplace exploitation.