Significant change for Australian employers likely following the announcement of Draft Migration Amendment (Protecting Migrant Workers) Bill 2021.
The Federal Government has flagged significant reforms to the obligations of Australian employers who employ temporary visa holders. The proposed reforms would strengthen the requirement to check the visa status and conditions of visa holders, increasing penalties for non-compliance, the creation of a new penalty for coercion of visa holders, and establishing a framework to ban employers from employing non-citizens on non-sponsored temporary visas such as Students or Working Holiday visas.
The Minister for Home Affairs, Alex Hawke MP, announced over the weekend that the Morrison government is seeking to review the penalties and procedures required of Australian employers to employ temporary visa holders in light of ongoing concerns about worker exploitation.
The government has released an exposure draft of proposed amendments to the Migration Act 1958, the Protecting Migrant Workers Bill 2021, for public comment and is public input on the draft legislation. The legislation is accompanied by a paper to provide additional context on the current legal arrangements under the Migration Act and related provisions in the Fair Work Act 2009.
The proposed changes have been drafted following the activities and recommendations of the Migrant Workers' Taskforce chaired by Professor Allan Fels, which was launched by the government to investigate and make recommendations to reinforce protections for vulnerable workers on temporary visas. The Taskforce was established in 2016, as a result of the significant increase in temporary visa holders in the preceding decade and major scandals related to the exploitation of visa holders, in particular those on student, working holiday and Subclass 482 Temporary Skill Shortage work visa.
The government has taken a number of steps since this time to provide additional resources to protect vulnerable workers, such as increasing funding for the Fair Work Ombudsman, strengthening evidence collection powers, and increasing penalties. In addition to these changes, authorities have placed a major focus on employer and visa holder education. Despite these efforts, there is little evidence to suggest a decrease in cases of exploitation of temporary visa holders.
One of the key areas of concern flagged by the Taskforce was the significant number of 'non-sponsored' visa holders who were vulnerable to exploitation. 'Non-sponsored' visa holders in this context refers to visas which are not specifically designed for work purposes but which have a large number of visa holders who engage in work activities, such as the Working Holiday and Student via programs.
The government has flagged its desire to not only provide additional protections for vulnerable temporary visa holders but the potential for exploitation to undermine the operation of the market as employers who are paying appropriate wages are unable to compete with exploitative employers due to cost undercutting.
Two of the key changes will include the introduction of a new offence for coercion of temporary visa holders to work in breach of their visa conditions and the establishment of a framework to bar employers from employing temporary visa holders.
The context paper indicates that concerns about unscrupulous employers using the prohibitions in migration law to coerce temporary visa holders to work contrary to their visa conditions have led to the proposed new offence. This type of coercion has occurred where employers have sought to blackmail temporary visa holders into working under threat of dob-ins or reporting to Home Affairs for a breach of their visa conditions.
The announcement of a potential bar on Australian employers from employing temporary visa holders is perhaps the most significant announcement in the amendments. Currently, the Department has the power to prohibit authorised organisations from sponsoring migrants for employer sponsored visas such as the TSS 482 work or 408 Temporary Activity visa. However, there is no such framework which can prohibit employers from employing visa holders who do not require sponsorship. This includes the Working Holiday, Student, Graduate visa holders, among other smaller programs. Given many industries, such as hospitality, agriculture, and aged care, rely heavily on these non-sponsored temporary visa holders for critical labour, the proposed changes have far-reaching and significant consequences. A 'ban' may also result in the loss of access to other traditional sponsored visas such as the TSS 482 or Employer Nomination Scheme 186 permanent residency visa.
The proposed amendments suggest a major increase in focus on exploitation of temporary visa holders. The knock-on effects of these changes could be significant for Australian employers given the challenges in managing the complexities of immigration compliance.
The new offence has the potential to provide critical protections for temporary visa holders who have faced abuse by exploitative employers. However, like many legal reforms, the potential for this new offence to protect vulnerable visa holders will depend significantly on the resources allocated by Home Affairs to educate and manage visa holders.
The proposed bar on employers sponsoring temporary vias holders has the potential to put many organisation's operational and strategic goals at risk. Employers will need to consider immigration compliance carefully in order to protect access to the labour market.
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