Overview
- In its 2019 Report, the Migrant Workers’ Taskforce (the Taskforce) cited research that there was a common misconception amongst migrant workers that Australian workplace laws and conditions do not extend to them. Specifically, the Taskforce cited confusion about whether existing workplace protections under the Fair Work Act 2009 apply to foreign citizens who perform work without having valid work rights attached to their visa. The Senate Standing Committee on Education and Employment inquiry into the then Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (SJBP inquiry) also cited submissions that indicated that there was conflicting case law on this issue.
- This leads to two key problems. First, it creates a lack of certainty that could permit the exploitation of workers performing work without permission under Australia’s migration laws. Second, migrant workers may not seek assistance or information from official sources such as the Fair Work Ombudsman (FWO), in the belief that they are not entitled to protections under Australia’s workplace laws.
Considerations
- This measure is confined to the applicability of the Fair Work Act, consistent with the recommendation of the Migrant Workers’ Taskforce and the SJBP inquiry.
- The policy intent of the Fair Work Act is, and remains, that the Act does apply to all temporary migrant workers in Australia, irrespective of migration status. The proposal makes this policy intent clearer, while strengthening the legislative basis for the current practices of the FWO who acts on the basis that the Fair Work Act applies to workers irrespective of their migration status.
- No distinction is drawn, for the purposes of this amendment, between different types of breaches of the visa framework (eg: breaching a condition of one’s work rights or working without any work rights at all).
- Any immigration consequences for breaches of the Migration Act 1958 would continue to be dealt with under the Migration Act framework. The ‘Assurance Protocol’ in place between the Department of Home Affairs and the FWO would remain unaffected by this proposal. This mechanism is designed to enable visa holders to seek assistance from the FWO without fear of visa cancellation even if they have breached their work-related visa conditions.
- This issue is best addressed through a high-level, principles-based approach rather than prescribing the outcomes of particular circumstances. Such an approach would provide the courts and tribunals with the flexibility to manage any interactions between Fair Work protections and the Migration Act in a manner that takes into account all relevant circumstances.