Employing Migrants

In February of 2024, the Australian Parliament passed the Migration Amendment (Strengthening Employer Compliance) Bill 2023, amending the Migration Act 1958 to address the exploitation of migrant workers and strengthen employer compliance.

 

What is changing?

Designed to address issues regarding migrant worker exploitation, the amendments:

• Make it a criminal offence for employers and third-party providers to unduly coerce or pressure temporary migrant workers to work in breach of their visa conditions, or accept an exploitative work arrangement to meet a work-related visa condition;
• Allow employers who have previous engaged in migrant worker exploitation to be prohibited from employing non-citizens
• Repealed section 235 of the Migration Act – which makes it a criminal offence to breach a work-related visa condition – and inserted an ‘avoidance of doubt clause’ which allows recognition of the contribution of employers’ failures to provide workplace rights and entitlements in employees’ breaches of visa conditions.
• Expand the power of the Australian Border Force (ABF) to issue enforceable undertakings and compliance notices to employers suspected of engaging in migrant worker exploitation
• Strengthens protections for migrant workers to report instances of exploitation – such as working in breach of their visa – without fear of legal ramifications.

 

Migrant Workers’ taskforce

The amendments followed extensive consultation with unions, businesses, and relevant stakeholders which revealed systemic migrant worker exploitation across all industries.

The Migrant Workers’ Taskforce (MWT) was established in 2016 for the purpose of investigating and identifying proposed reforms to address the exploitation of migrant workers. In its 2019 report on the issue, the MWT identified several factors as being primary contributors to exploitation, including:

The exploitation of migrant workers takes many forms, but may entail the following:

• Wage underpayment or the use of ‘cash back’ arrangements
• Pressure to work beyond the restrictions of a visa, such as student visa work limits
• Upfront payment or a ‘deposit’ for a job
• A failure to provide workplace entitlements such as paid leave and superannuation
• Tax avoidance through the use of cash payments to workers
• Compulsory unpaid training
• Unsafe working conditions
• Unfair dismissal
• Misclassification of workers as independent contractors, rather than employees
• Unfair deductions from wages for accommodation, training, meals, or transport
• Threats to have a person’s visa cancelled by authorities
• Withholding a visa holder’s passport
• Requiring migrant workers to use and pay for sub-standard, on-site accommodation

Among the findings of the MWT’s investigation was the revelation that almost a third of temporary migrant workers earned $12 per hour or less, and almost half earned $15 per hour or less.

 

Implications for employers

The amendments to the Migration Act are of great significance to employers, particularly those who employ temporary migrant workers.

In placing greater responsibility on employers to ensure they adhere to visa conditions and employment regulations, businesses can expect to receive greater scrutiny and oversight of hiring practices. In particular, employers will need to demonstrate strict adherence to visa requirements, such as fair wages and appropriate working conditions, to avoid potential civil and criminal penalties.

Employers have an ongoing legal obligation to ensure their workers comply with their visa conditions. As such, the following should be subject to continual monitoring:

• Visa status;
• Passport status;
• Work rights;
• Personal details, such as name and address;
• Education course information, for student visa holders; and
• Relationship status, for secondary applicants.

Businesses found to have any migrant workers working in breach of their obligations may receive fines of up to $123,000 for each offence, with directors and executives also vulnerable to being found personally liable for non-compliance. Given this, it is of utmost importance that businesses are proactive in taking steps to mitigate the risk of non-compliance.

 

*This article was prepared with the assistance of Clea Philips