Migrant Worker Protections
Australia has long relied on migrant workers to fill crucial roles in industries such as agriculture, hospitality, and more recently, construction. The Australian Government has increasingly taken action to strengthen the legislative framework in the Migration Act 1958 (Cth) to improve employer compliance and protect temporary migrant workers from exploitation.
On 1 July 2024, the Migration Amendment (Strengthening Employer Compliance) Act 2024 came into effect, seeking to ensure that employers do not misuse migration rules to exploit temporary migrant workers, complementing existing protections for vulnerable temporary migrant workers under Australia’s workplace laws, and ensuring that they are appropriately empowered to address unlawful conduct in the workplace.
Pursuant to these new laws, three (3) new work-related offences have been introduced, making it illegal for employers, including sponsors and labour hire intermediaries to:
coerce or pressure a temporary visa holder to breach a work-related visa condition
coerce or pressure a non-citizen without a valid visa to accept or agree to a work-related arrangement
use a worker’s temporary visa status to exploit them in the workplace (including in relation to existing visa conditions and requirements to support future visa application).
These laws cover a range of work-related situations where exploitation might happen, including but not limited to:
underpaying a migrant worker
pressuring a migrant worker to work more hours than allowed by their visa conditions
threatening to cancel a migrant worker’s visa (employers cannot cancel visas)
coercing a migrant worker to hand over their passport
coercing a migrant worker to engage in unwanted sexual acts
pressuring a migrant worker to accept inadequate living conditions, such as poor housing, inadequate meals or access to running water and electricity.
Information for migration workers
There are laws to help protect temporary migrant workers from workplace exploitation.
Workers are protected by national workplace laws, regardless of their immigration status. This includes people who have a visa with work rights, an expired visa and those who are working in breach of their visa conditions.
To protect yourself from workplace exploitation, keep the following things in mind and always stay informed about your rights:
Keep your documents safe
Make sure you keep your passport and other travel documents safe. Your employer can check your passport, but it is illegal for them to take your passport from you without your consent.
Understand and comply with your visa conditions
Your visa may list who you can work for or set a maximum number of hours you can work in a specified period. Check your visa details and conditions.
Check the Fair Work Ombudsman (FWO) website
The FWO website has helpful tools and resources, including a pay calculator that will help you check your pay and wages.
You can access these tools at Fair Work.
You can also quickly and easily store your work hours using their free Record my Hours app.
Look out for prohibited employers
There are some employers who have exploited migrant workers and are not allowed to hire more temporary visa holders for a period of time. This is called a prohibition. You can find a list of these employers on the prohibited employer register.
Report workplace exploitation early
Reporting workplace exploitation early means you can get the support you need as soon as possible.
If you are working in Australia and you are being exploited at work, ask for help from:
the FWO
a union
a community legal centre
a lawyer.
Remember, employers cannot cancel your visa, even if you have breached your visa conditions. Only the Department of Home Affairs, including the Australian Border Force (ABF) make decisions about your visa status.
Anyone can report exploitation anonymously to the FWO or Border Watch.
Learn more about workplace rights for visa holders and migrants.
New laws to target dishonest employers
As of 1 July 2024, new laws were introduced to protect migrants from workplace exploitation by introducing tough penalties for serious and deliberate exploitation of temporary migrant workers.
The new laws apply to both direct employers, and others in the employment chain, like labour hire companies. The rules aim to deter dishonest employers from using a person’s temporary visa, or their unlawful immigration status, to exploit them in the workplace.
These measures cover both work and non-work related matters that might arise in the workplace. This could include situations such as a worker being pressured to surrender their passport, accept inadequate housing, perform sexual favours or breach visa work restrictions.
You can find out more about the types of employer behaviour that are against the law by reading these case studies.
Strengthening Reporting Protections
If you have been exploited in the workplace you should seek help. National workplace laws protect workers regardless of their immigration status.
From 1 July 2024, the Australian Government introduced new laws to strengthen reporting protections to give temporary visa holders confidence to report exploitation early and resolve their workplace issues. These new laws recognise some temporary visa holders are fearful they will have their visa cancelled if they report exploitation or support an investigation into their employer.
The new laws strengthen reporting protections where:
you have breached a work-related visa condition (not including the ‘no work’ condition) and the breach is connected to you being exploited
a participating government agency or an accredited third party has certified the exploitation and is helping you to resolve the matter
you promise to follow visa conditions in the future
there are no other reasons to cancel your visa (such as fraud, character or security).
For more information, visit Strengthening Reporting Protections Pilot.
If you are or have been exploited at work, and you need to extend your stay to resolve the issue, you may be able to extend your stay on a Workplace Justice visa.
What is the Workplace Justice Visa?
The Australian Government Endorsed Events (Workplace Justice Pilot) (Subclass 408) visa is a temporary visa known as the Workplace Justice visa was introduced by the Australian government to protect migrant workers who are facing exploitation in their current employment. It allows workers to stay legally in Australia while they seek resolution of their employment issues, whether that be through finding new work, negotiating fair treatment, or pursuing legal avenues to address exploitation such as wage theft, unsafe working conditions, or mistreatment by employers.
This visa provides a lifeline for workers who would otherwise feel trapped in a situation where leaving their employer would mean losing their visa status or facing deportation. It ensures that workers can take action against exploitation without the fear of jeopardising their ability to stay in the country.
The Workplace Justice visa allows you to extend your stay in Australia to pursue a workplace exploitation claim, for up to 6 or 12 months, depending on your circumstances.
In summary, the Workplace Justice visa allows migrant workers to:
Stay in Australia legally while they seek alternative employment or resolve issues with their current employer.
Work with a new employer if their previous employer has breached visa conditions or exploited them, in any occupation or industry, and anywhere in Australia.
Access support services, including legal assistance, accommodation, and advice about their rights in the workplace.
I am a Migrant Worker being exploited - What should I do?
If you are a migrant worker in Australia and suspect that you are being exploited, it’s crucial to act quickly to protect yourself. Here are the steps you should take:
Document Everything: Keep a record of your working hours, wages, and any communication with your employer. If you are facing unsafe working conditions, take photos or make notes of any incidents.
Know Your Rights: Familiarise yourself with Australian labour laws and your rights as a migrant worker. The Fair Work Ombudsman is a key resource for information on wages, working conditions, and legal protections.
Seek Support: Don’t hesitate to contact local unions, community groups, or advocacy organisations. They can provide advice, resources, and even legal assistance if needed. Many organisations specialise in supporting migrant workers and can help you navigate the process of seeking justice.
Report Exploitation: If you are being exploited, you can report your employer to the Fair Work Ombudsman or other relevant authorities. The government has strengthened its reporting systems to protect whistleblowers and ensure that exploitation is dealt with swiftly.
Consider the Workplace Justice Visa: If you are facing immediate harm or exploitation, the Australian Government Endorsed Events (Workplace Justice Pilot) (Subclass 408) visa, more simply known as the Workplace Justice visa may be an option for you. This visa allows you to legally stay and work in Australia while seeking help or finding a new employer.
For migrant workers, it’s essential to know your rights and to act if you are being mistreated. Support is available, and there are legal pathways to ensure that you can live and work safely in Australia. For instance, the Workplace Justice Visa is a vital tool in the fight against the exploitation of migrant workers in Australia. By providing legal protection and a pathway for workers to resolve employment issues without the threat of losing their visa status, this visa helps ensure that migrant workers can work in safe, fair conditions and seek justice when they are mistreated.
If you are a migrant worker experiencing exploitation, the Workplace Justice Visa could be the solution you need to protect your rights and secure a better future for yourself in Australia. For more information, consider speaking with an immigration lawyer or migration agent who can guide you through the process and help you take the next step towards workplace justice.
At Inclusive Migration, our immigration lawyers have extensive experience in representing and advocating for migrant workers in Australia. For a confidential discussion of your case and options, please email info@inclusivemigration.com.au or submit an enquiry through the contact form on our website.
