The Migration Amendment (Strengthening Employer Compliance) Act 2024 received royal assent on 20 February 2024 and commences from 1 July 2024. These changes are being introduced to try to curb temporary migrant worker exploitation and hold employers who conduct themselves this way accountable.
Migrant worker exploitation has been widely recognised in a variety of industries across Australia. As is often the case, fault may only lie with a few "bad apples" doing the wrong thing, but vulnerable overseas workers deserve our protection from these sorts of behaviours and practices.
What does this mean for temporary migrant workers?
Section 235 of the Migration Act, which currently makes it an offence for a visa holder to breach work conditions or for an unlawful citizen to work, has been repealed. The purpose of repealing that section is to try to encourage anyone who is being exploited to come forward and report it.
Home Affairs will provide a list of all employers that have been prohibited from employing temporary migrant workers so visa holders can be confident that they are not applying to work with an unscrupulous employer.
Before the Minister considers cancelling a temporary migrant worker's visa, if the worker has been the subject of employer exploitation, these matters can be given weight when determining whether to cancel their visa or not.
What does this mean for employers and others in the employment chain?
It is now a crime to coerce or even apply undue pressure on a person to breach their work-related visa conditions. Significant pecuniary and civil penalties apply.
If convicted of these sorts of offences, it's also likely that you will be prevented from being able to employ temporary visa holders for a specified period of time. If you are a business that relies on these sorts of workers, that could put your whole business in jeopardy.
You may find yourself on a publicly available list of employers to avoid.
The changes encompass all "arrangements in relation to work" which includes those that fall outside "work-related activities", for example:
- unsafe working conditions;
- inappropriate or unsafe accommodation;
- sexual harassment; and
- involvement of labour-hire companies etc.
What's an example of exploitation, coercion or undue pressure on a person?
The explanatory statement to the Bill gave this detailed example:
Person A is an international student studying pharmacy who has recently arrived in Australia. Before the semester starts, Person A attempts to find part-time work to support their stay; however, they are finding it difficult to find employment.
Person A secures work with a labour-hire intermediary (LHI X) and explains that they are restricted from working more than 48 hours a fortnight during the term, in line with their work-related visa condition (condition 8105). LHI X notes Person A's work restrictions and arranges a contract with an employer.
Person A has been working 48 hours a fortnight. After two months, LHI X requests Person A to accept an additional contract with another employer. If Person A accepts this additional contract, they would be working more than 48 hours a fortnight. Person A politely declines LHI X's request, and explains that their visa does not allow them to work additional hours.
The following month, the LHI X director makes sexual advances towards Person A. Person A rejects those advances, and the LHI director threatens Person A that they will report them to Home Affairs to have their visa cancelled if they don't comply despite the fact that Person A has not breached their visa condition.
Whether or not Person A had worked the additional hours in breach of a work-related visa condition, LHI X may be liable for prosecution, or a civil penalty, under new section 245AAA of the Migration Act.
What does the Government expect to achieve with the new temporary migrant workers' protections?
These changes reflect the Australian Government's action in relation to two specific recommendations made as a result of the "Report of the Migrant Workers' Taskforce" (released in March 2019):
Recommendation 19
It is recommended that the Government consider developing legislation so that a person who knowingly unduly influences, pressures or coerces a temporary migrant worker to breach a condition of their visa is guilty of an offence.
Recommendation 20
It is recommended that the Government explore mechanisms to exclude employers who have been convicted by a court of underpaying temporary migrant workers from employing new temporary visa holders for a specific period.
The changes aim to help ensure the integrity of the migration system in Australia by improving the compliance of employers and providing increased protection for temporary migrant workers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.