Migration Amendment (Strengthening Employer Compliance) Bill 2023
11 September 2023
Speech to the Australian Parliament, House of Representatives
Migration Amendment (Strengthening Employer Compliance) Bill 2023
Mr DAVID SMITH (Bean—Government Whip) (16:35): I'd like to commend the speech by the member for Cooper. She has dedicated so much of her working life to eradicating worker exploitation and ensuring that there's fair treatment of workers right across this country, and she is a source of inspiration to many of us in this House.
I also rise today to speak in favour of the Migration Amendment (Strengthening Employer Compliance) Bill 2023. The Albanese government recognises that Australia's long-term economic prosperity cannot and should not be achieved through the exploitation of migrant workers. For those of us in this House who are committed to being good neighbours, this is where we can start ensuring that we are good neighbours—by making changes to this incredibly troubling practice that has unfortunately grown over the last decade.
What we know is that one in six migrants are paid below the minimum wage, the wage that we know is the minimum for a family to potentially get by on in a frugal way. Regrettably, most of these workers will be too scared to question this, too scared to speak to a union and too scared to speak out because of the potential consequences. Some employers will even threaten them with a phone call to the Australian Border. The prevalent theft of wages among migrant workers equates to an economic race to the bottom. No-one wins. Our neighbours don't win. It undermines the institution of our minimum wage, and it punishes employers—the majority of employers—that are doing the right thing. If the economic viability of your business is based on underpaying vulnerable migrant workers, then your business model is deeply flawed.
This bill amends the Migration Act 1958 for the purpose of strengthening employer compliance measures and protecting temporary migrant workers from exploitation. To support greater compliance, the bill introduces criminal offences for employers who choose to coerce temporary migrant workers into working in breach of their visa conditions, and establishes a mechanism to prevent such employers from employing additional migrant workers for a period of time. It's an important consequence for particularly bad behaviour.
The bill also introduces amendments designed to remove some of the disincentives for temporary migrant workers to report exploitation. Currently they might fear that their visa status would be jeopardised by actually making such a report. It cannot be that, in modern Australia, migrant workers hardly get fair pay—as I said before, one in six are underpaid—because their employers think it's okay to treat temporary visa holders differently from Australian workers. It is not simply unfair and illegal; at the heart of it, it is un-neighbourly. The Albanese government inherited an immigration and visa system in crisis. Too many tasks were placed in the too-hard basket. One of those was the exploitation of migrant workers. This led to an unchecked rise in exploitation. When the heat finally got too much, the previous government commissioned the Migrant Workers' Taskforce, back in 2016. After three years of listening to stakeholders, the taskforce made recommendations, some of which were cherrypicked and some were put into a bill that the previous government introduced, but it never seemed likely that that bill was going to make it to a vote. It should come as no surprise that on immigration reform, like so many other areas, those opposite dropped the ball.
The immigration legacy that the Albanese government inherited included a system that prioritised temporary visas over permanent visas, changed visa rules to restrict workers' rights, and removed pathways to residency. The enforcement of what little regulation migrant workers had protecting them was actively rolled back. Up until now, the benefits of exploiting migrants outweighed the consequences, and bad employers have made the most out of it—as I said before, a minority, still, but nonetheless having an incredible impact on our migrant neighbours. This legislation, importantly, changes this.
One of the critical parts of tackling exploitation is the need for a functional and well-administered visa system. We know that a system with long waiting times and poor client services creates additional vulnerabilities for the community and the government; another failure in the government's response to migrant worker exploitation. For people who have been exploited, the Migration Act has criminalised speaking out. Section 235 of the Migration Act makes it a criminal offence for a visa holder to work in breach of a work related visa condition or for an unlawful noncitizen to work at all. Although this criminal offence has not been prosecuted since it was introduced more than two decades ago, this government understands that workers are afraid to speak out. We intend to change that. A key element of this bill is to repeal this offence.
I would like to discuss some of the findings and highlight the work from the Migrant Workers' Taskforce. One finding was the underpayment of migrant workers. As has been discussed in the chamber today, underpayment is a long-standing problem with significant impacts for affected individuals, for the labour market and for the broader community. But it's difficult to precisely quantify the prevalence and severity of the problem. Just two months ago, Professor Allan Fels, chair of the taskforce, told the Australian:
This has been a severe problem for at least 10 years, there have been huge numbers of underpaid and exploited migrant workers and nothing was done about it.
Professor Fels has also made it clear that:
Wage exploitation of temporary migrants offends our national values of fairness. It harms not only the employees involved, but also the businesses which do the right thing. It has potential to undermine our national reputation as a place for international students to undertake their studies and may discourage working holiday makers from filling essential gaps in the agricultural workforce. This problem has persisted for too long and it needs concerted action to overcome it.
Professor Fels is right. This has gone on for too long, and it is disgraceful that migrant workers have had to wait until now for proper action.
The taskforce also identified that there are a number of vulnerabilities to workplace exploitation that are common among migrant workers, including limited English language skills, lack of awareness of Australian workplace laws, and, as I mentioned earlier, a fear of visa cancellation, detention and removal from Australia. Additionally, peer and community or family expectations, norms within cultural groups, as well as economic settings in visa workers' home countries can also influence their decisions regarding low-paid work. Research shows that, even where migrant workers are aware of legal minimum wages, some will still accept much lower pay rates. One research article the task force cited was from a 2015 study of international students in Sydney, which found that international students tolerate and accept lower than lawful wages not only because the wage rates can be high in comparison to their home countries but also because lower than lawful wages are normalised and accepted among their international student peers. This must end.
Exploitation of these workers was found to take many forms, such as wage underpayment or cashback arrangements; pressure to work beyond the restrictions of a visa; upfront payment or deposit for a job; failure to provide workplace entitlements such as paid leave, superannuation and many things that we take for granted; tax avoidance through the use of cash payments to workers; unpaid training; working conditions that are unsafe; unfair dismissal; misclassification of workers as independent contractors instead of employees—that sounds a bit familiar—and requiring migrant workers to use and pay for substandard onsite accommodation. This problem is not isolated to one or two sectors of employment in the economy; it's more diverse than that. It stretches from remote fruit picking to convenience stores in regional cities and the global ICT multinationals in our capital cities.
This is a complex issue, but to not respond to this soundly would be giving dodgy businesses the green light to maintain the status quo. It would be the same as surrendering this issue to the too-hard basket, which is not what Labor governments do. That's why there are six parts to the Albanese government's approach to addressing this systemic problem. Part 1 of this legislation enacts new criminal employer sanctions. New criminal and civil offences are being introduced concerning coercing people to work in breach of their visa conditions or using their visa status to exploit workers. The penalty will be up to two years in prison or 360 penalty units. This will be an important deterrent to employers who think about exploiting workers due to visa conditions. By adding such strong penalties we can disincentivise those employers actively doing the wrong thing.
Part 2 of the bill prohibits employers and individuals from hiring future workers on temporary visas. These new prohibition notices will enable the minister to declare employers and individuals to be prohibited from hiring new workers on temporary visas for a period of time. Employers and individuals will be subject to these discretionary prohibition notices when they are found to have breached migration and employment law. Triggers for prohibition will include court orders and noncompliance with employment and migration law. Where employers and individuals are subject to such notices, the minister must publish the relevant details on the department's website.
Part 3 aligns and increases the penalties for work related breaches. Penalties are increasing for work based breaches to align with the maximum penalties available under the Migration Act. This is intended to better reflect the seriousness of illegal work practices and the exploitation of temporary migrant workers. This will see penalties increase from 60 units to 240 units, which is designed to send an important message to businesses thinking about exploiting migrant workers. Part 4 of this bill will enable enforceable undertakings for work related breaches. This amendment will seek to give similar provisions under the Migration Act to the Australian Border Force. This will provide the ABF with additional tools in their enforcement approach. The ABF asked for more tools to enforce compliance, and this bill will do that.
Finally this legislation will empower migrant workers to speak out without fear of visa implications. Under the Migration Act the exploitation of a worker will be able to be considered as a potential mitigating factor when visa cancellation is under consideration. This will send an important message to migrants who are on temporary visas and who are worried to speak up that their visa will not be cancelled if they are being exploited. This will bolster the usage of the assurance protocol, a process that is used between the Fair Work Ombudsman and the Department of Home Affairs, designed to ensure that, when people report their employer to Fair Work, they are not penalised by the Department of Home Affairs.
This bill reflects the government's strong principle that approaches to employment and migration will work side by side to address exploitation. The Fair Work Act and the Migration Act will work together to protect workers regardless of their visa status. The Albanese government is working to address all aspects of this issue, and that includes ensuring that Australia has a functioning and efficient visa processing system. Those that suffered the most from migrant worker exploitation were the ones we relied on at the height of the COVID-19 pandemic. It was visa holders who were stacking shelves, staffing hospitals, delivering essential care or delivering food to those stuck in home quarantine. In effect, they were being good neighbours.
I thank, for their coordinated efforts, Ministers O'Neil, Burke and Giles, who've worked together to ensure that this issue can be addressed properly—not with a bandaid but with legislation with a vision to end the exploitation of migrant workers so that we will be good neighbours to all our brothers and sisters across this country. I commend the bill to the House.