Submission to the Department of Home Affairs in the Migration Amendment Bill 2021
Summary of recommendations
Recommendation 1. The DHA should encourage the Government to immediately establish “a whole of government mechanism” that ensures the protection of migrant workers from exploitation.
Recommendation 2. The DHA should prioritise reviewing the Assurance Protocol with the Fair Work Ombudsman and strengthening safeguards for victims of migrant labour exploitation.
Recommendation 3. The DHA should add further amendments to Part 1 to give migrant workers whistle-blower protections. When an employer is subject to a civil penalty order or convicted of contraventions of the Act, whistle blowers who lose their job and consequently their employer sponsored visa as well should be given 90 days in addition to the 60 days they currently have in which to find an alternate sponsoring employer. No whistle blower should be made subject to a visa eligibility criterion “Have complied with previous visa conditions” in their lifetime in Australia.
Recommendation 4. The DHA should revise the restrictive regulations of temporary visas that hinder holders of the visas from exercising their workplace rights. As a priority, people on student visas should not be subject to Conditions 8104 and 8105 that prohibit them from working more than 40 hours a fortnight. Extensions of Working Holiday and Work and Holiday visas should not be contingent on the satisfaction of any specified work requirements.
Recommendation 5. The DHA should create a new bridging visa with the right to work and help regularise the stay of migrant workers who are victims of workplace exploitation, harassment, or injury. When their cases are being heard by the Fair Work Commission or by court, when they are assisting the Fair Work Ombudsman with an ongoing investigation, or when they are receiving medical or psychological treatment, most migrant workers are forced to leave Australia in the middle of their lengthy processes. This bridging visa for the victims of industrial injustice should be regarded as a qualifying substantive visa when the victims apply for another visa afterwards.
Recommendation 6. The DHA should revise Part 2 and have the owners, shareholders, and members of a body corporate which has been declared to be a prohibited employer personally subject to the additional migrant worker exploitation prohibition.
Recommendation 7. The DHA should add further amendments to Part 2 to protect the additional employees from any adverse immigration outcomes as a result of their employer’s contravention. For example, no future amendment to the Migration Regulations 1994 should be made to the effect of not allowing the additional employees to count the work they carried out for a prohibited employer toward meeting their visa conditions. As a principle, the DHA should not disadvantage the additional employees for the Department’s own failure to detect the prohibited employer’s contravention in advance.
Recommendation 8. The DHA should keep the Fair Work Ombudsman and trade unions updated of the list of prohibited employers and collaborate with them to regularly check on the prohibited employers and prevent them from developing a black market for migrant labour.
Recommendation 9. The DHA should delete the amendments in Part 3 in entirety from the Bill. In their replacement, the DHA is advised to introduce measures to proactively disseminate the message that the standards under the Fair Work Act 2009 apply to every worker equally, both citizens and non-citizens, in line with Taskforce Recommendation 3. We suggest the DHA provide information about workplace rights in community languages each time a visa with right to work is issued. The Government should also facilitate follow-up education for migrant workers upon their arrival by funding trade unions and community legal centres to offer workplace rights workshops in community languages.
Recommendation 10. The DHA should pay attention to the rest of the Taskforce Recommendations and encourage the Government to introduce essential measures for the protection of migration workers, namely, the Fair Entitlements Guarantee program for migrant
workers in accordance with Taskforce Recommendation 13 and a national labour hire licensing scheme, as suggested in Taskforce Recommendation 14, through replication and scaling up of the best practice requirements of the Queensland and Victorian state schemes.