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Overview

An increasing body of evidence has shown that migrant worker exploitation is rife in workplaces across Australia. Many migrant workers are unwilling or unable to enforce their rights due to fears they will put their visa at risk or jeopardise a future visa. Consequently, most workplace violations go unreported, allowing the corrosive effects of migrant worker exploitation to continue unchecked.

In July 2024, however, the Australian Government launched a two-year pilot of visa protections that, for the first time, provide eligible migrant workers with greater choice and agency in how they assert their labour rights.

The Workplace Justice Visa (WJV) is a temporary, substantive visa that allows temporary visa holders to stay in Australia for 6 or 12 months to take legal action if they have been exploited at work. The Strengthening Reporting Protections (SRP) pilot allows some temporary visa holders who have been exploited at work to apply for protection against their visa being cancelled, because they have breached a visa condition, provided certain conditions are met.

These reforms are long overdue and should be extended beyond the pilot phase to become a permanent fixture of our migration system. However, we believe that they have substantial limitations that must be addressed to ensure that they can meet their policy objectives in the long term.

There are gaps in the protections that leave many exploited workers ineligible for them, or unable to access them. For the WJV, these issues stem from restrictive eligibility criteria and a narrow window in which to apply. The discretionary element of the SRP may deter some exploited workers from accessing it, due to a lack of confidence in not having a guarantee that their visa will not be cancelled. It is also a concern that the SRP extends only to cancellation for breach of visa conditions, and not other grounds for cancellation that might equally arise as a result of workplace exploitation.

The pilots have also contributed to a surge in requests for help. Accredited Third Parties (ATPs) and community legal centres are not funded to perform this additional work, and the gap in the number and range of organisations that can certify claims for the pilots has created access barriers for applicants.

This brief highlights the most pressing issues with the pilots. While not exhaustive, it also emphasises the need for an iterative process with the Department of Home Affairs (DHA) to ensure that the visa protections are effective, accessible, and fit-for-purpose.

Recommendations

• Expand the number and range of ATPs that can certify claims for the pilots
• Allocate Commonwealth funding to ATPs and employment and immigration law centres to enable them to provide coordinated legal advice and effectively respond to the increased demand for their services generated by the pilots.
• Extend eligibility for the WJV:
  • beyond 28 days before or after visa expiry; and
  • to Bridging visa holders and undocumented workers
• Expand the definition of a ‘workplace exploitation matter’ to reflect the common workplace matters that affect workers approaching ATPs for certification.
• Strengthen the SRP protection, by:
  • Redrafting the relevant regulation (r 2.43B) to clarify that the Minister (or their delegate) does not retain a discretion to cancel once valid certification is provided;
  • Redrafting the regulations (both r 2.43A and 2.43B) to clarify that protection is available, even where a visa-holder may be prevented from complying in future with a work-related visa condition because of exploitation; and
  • Ensuring that SRP applications are processed, and an outcome notified, within a standard time period (which, ideally, should be no more than 28 days).
• Clarify access to protections for PALM Scheme participants:
  • Allowing automatic waiver of the ‘no further stay’ condition (8503) where a PALM Scheme worker meets the criteria for the WJV; and
  • Clarifying the operation of condition 8611 and the availability of SRP protection, where workers have ceased work with a PALM-approved sponsor but not engaged in work elsewhere.
• Increase priority for the co-design of the pilots and the processing of claims within the DHA.
• Integrate the pilots within the work of all sections within the DHA to reflect policy intent.