Strengthened migrant worker protection and compliance with workplace and migration laws

As part of its commitment to strengthening worker protections, the Australian Government has recently introduced new laws to give temporary visa holders confidence to report exploitation early and resolve their workplace issues.

These new laws recognise some temporary visa holders are fearful they will have their visas cancelled if they report exploitation or provide support to an investigation into their employer. These strengthened migrant worker protections have also seen the introduction of a new Workplace Justice Visa.

This update will provide employers and individuals with an overview of these changes including the new penalties which may be imposed, and the Workplace Justice Visa. 

The exploitation of migrant workers is highly detrimental to the wider economy and erodes confidence in our immigration system.

Recent studies have identified that new migrants are 40% more likely to be underpaid because of their usual youth, limited experience and the additional vulnerabilities of visa limitations, weaker contractual power and communication barriers.

This issue occurs not only in the realm of sponsored work visa programs, but more broadly has been proven to occur in any workplace where an Australian business employs migrant workers who may be holders of non-sponsored temporary visas that provides work rights, including student visas, working holiday visas, temporary graduate visas, bridging visas etc.

A proposed future amendment to further support workers will be allowing for time spent working for any sponsor while holding a 482 visa, to count towards the required two-year qualifying employment period for a subclass 186 permanent residence visa under the Temporary Residence Transition Stream.

Following exploitation incidents, the reforms have introduced new regulations to amend the rules on visa cancellation for breaches of visa conditions, particularly after the Assurance Protocol failed.   The Assurance Protocol was introduced in early 2017, and provides that an individual’s visa will not be cancelled in cases where workplace exploitation has been the cause of a breach of work-related conditions, provided:

• the visa holder has sought advice from the Department and is helping the Department with subsequent inquiries
• there are no other reasons for the Department to cancel the person’s visa (ie character or health issues)
• the visa holder has committed to complying with all conditions into the future.

The new Workplace Justice visa pilot has been established to provide greater certainty to migrant workers who wish to remain in Australia while pursuing claims against employers for a range of issues including underpayment of wages, unsafe working conditions, discrimination and/or harassment in the workplace.

Following the 7-Eleven wage rort in 2015 where thousands of migrant workers were significantly underpaid, the government created the Migrant Workers Taskforce, chaired by Professor Allan Fels and Dr David Cousins, who provided their report in 2019.

A substantive response to the Taskforce is represented by the Migration Amendment (Strengthening Employer Compliance) Act 2024 (Strengthening Employer Compliance Act), which commenced on 1 July 2024.

The Strengthening Employer Compliance Act aims to deter employers from using a person’s immigration status to exploit them. Included in this Act are the following measures:

• making it a crime, with associated civil penalty provisions, to coerce or unduly pressure a person into breaching their work-related visa conditions or accept an exploitative work arrangement to meet a work-related condition of their visa, such as:

• • underpaying a migrant worker
  • pressuring a migrant worker to work more hours than allowed by their visa conditions
  • threatening to cancel a migrant worker’s visa (employers cannot cancel visas)
  • coercing a migrant worker to hand over their passport
  • coercing a migrant worker to engage in unwanted sexual acts
  • pressuring a migrant worker to accept inadequate living conditions, such as poor housing, inadequate meals or access to running water and electricity.

• preventing, for a specific period, employers that have been convicted of these offences from hiring further temporary visa holders (the Employer Prohibition). After the prohibition ends, these employers can hire additional temporary migrants again but must comply with special reporting requirements.
• publishing the names and ABN of these prohibited employers on the Prohibited Employer Register so visa holders can be confident that they are not applying to work with an unscrupulous employer.
• significantly increasing the pecuniary and civil penalties as a deterrent with some fines rising four times.
• providing increased power and tools to the ABF including issuing enforceable undertakings and compliance notices.

More specifically, the Act now makes employers criminally liable for using a person’s migration status to exploit them. The new provisions capture broader scenarios, relating not only to what is considered “work”[1] but also extending to “arrangements in relation to work”.  For example, a request by an employer for a worker to surrender their passport or for a worker to accept unsafe housing arrangements.

The Act also repealed section 235 of the Migration Act, which made it an offence for a visa holder to breach work conditions or for unlawful non-citizens to work.  The intention of this amendment is to encourage anyone who is being exploited to come forward and report it, even where a breach of their visa own conditions occurred as a result.

The Strengthening Employer Compliance Act also provides a new “migrant worker sanction” definition for contraventions to relevant provisions under multiple pieces of legislation, like the Migration Act, the Fair Work Act 2009 (Cth), the Criminal Code, offences or civil penalty provisions and even enforceable undertakings agreed with the Fair Work Ombudsman. Employers that are subject to a migrant worker sanction may be declared a “prohibited employer”.  In these cases, their names and ABNs will be published on the Prohibited Employer Register, and they will be criminally liable if they allow new non‑citizens to begin work (or if they have any material role in a body corporate that allows non‑citizens to begin work).

Employers who were approved sponsors and have been barred from sponsoring new workers will also be liable to become prohibited employers. The prohibition will apply for a maximum period of five or 10 years, depending on the offence, with no limits for the most serious migrant worker sanctions like human trafficking. For the 12-month period after an employer’s prohibition ends, they must notify the Department of Home Affairs within 28 days of hiring a non-citizen. The Prohibited Employer Register is of course in addition to the existing Register of Sanctioned Sponsors which lists the sponsors who have breached their sponsorship obligations since 18 March 2015.

The Act also stipulates that the Migration Regulations 1994 may prescribe additional protections for exploited temporary migrant workers. To date, the following amendments have been made to the Migration Regulations 1994:

• The Migration Amendment (Strengthening Reporting Protections) Regulations 2024, which strengthens the protections available to migrant workers who report workplace exploitation matters. In a nutshell, it prescribes matters that the Minister must, must not or may consider when deciding whether to cancel a person’s visa under the discretionary cancellation powers available under section 116 of the Migration Act. and;

• The Migration Amendment (Workplace Justice Visa) Regulations 2024.

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[1] “Work” is defined in migration legislation as any activity that would “normally attract remuneration”, therefore only leaving out what is normally regarded as voluntary work.

Supplementary to the migration amendments outlined above, the Australian government has introduced a new Subclass 408 Temporary Activity Visa stream – the Workplace Justice Visa. From 1 July 2024, this stream became available to support applicants who are pursuing claims against their employers for workplace exploitation.

The Workplace Justice visa has the following key criteria:

• The applicant and their dependent family members intend to stay in Australia to undertake a workplace justice activity[1]; and
• The applicant has a certificate which has been issued by a person, body or government entity stating that the applicant is pursuing a matter relating to workplace exploitation.

There is no sponsorship requirement for this stream however the applicant must be endorsed by a person, body or government entity that can confirm the applicant is currently involved in a civil or criminal proceeding as the complainant or victim of a workplace exploitation matter.

The Workplace Justice visa will generally be granted for a period of six months or up to 12 months. It will allow the visa holder and their family members to remain in Australia to undertake the workplace justice activity. The visa holder will also be able to work during their stay in Australia.

This visa has does not have a visa application charge.

The Department has announced that it will implement the Workplace Justice Visa as a pilot program.

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[1] For DOHA, workplace justice activities could include: wage recovery claims, reporting unsafe work conditions, addressing discrimination, protecting whistle-blowers, preventing retaliation, supporting union activities, misclassification disputes, resolving harassment issues, and/or enforcing employment contracts.

If you want to discuss the above further or are concerned that a temporary visa holder is being exploited, please reach out to us to discuss confidentially.

• The Migration Institute of Australia
• Department of Home Affairs
• Mapien’s Team of RMA’s