The Australian Government's Contradictory Stance on Undocumented Migrant Workers
In today’s post, Evelyn Dowling from RMIT University explains how the exclusion of undocumented migrants from recent Australian legislation intended to address migrant worker exploitation does not align with international human rights conventions.
Nearly ten years on from the 7-Eleven wage theft scandal, reports of migrant worker exploitation in Australia are still widespread. Recent reports have profiled the exploitation of migrant workers across industries and visa types, from PALM Scheme workers in the meat processing industry, to temporary skilled visa holders working in hospitality.
Temporary migrant workers are particularly vulnerable to exploitation, such as underpayment, denial of leave and abuse and harassment. This can be explained by how the structure of migration and employment systems together create conditions conducive to exploitation, such as visa dependency and employer sponsorship. Lack of migrant worker awareness of rights, linguistic and cultural barriers, and fear of negative consequences from reporting exploitation further enable employers to exploit migrant workers with impunity. Furthermore, most temporary migrants in Australia, as in many other countries, are ineligible for government-funded health care or social supports such as Centrelink.
In recognition of the heightened vulnerability of migrant workers to exploitation globally, there are numerous international instruments specifically relating to migrant workers. These include the International Labour Organization (ILO) Migration for Employment Convention (Revised) 1949), and the Migrant Workers Convention (1975). Nation-states, including Australia, are also trying to address migrant worker exploitation within their own borders with the Federal Australian Labor government recently introducing a range of legislation for this purpose, including:
clarifying that all workers in Australia are covered by employment law including those without a valid visa;
information sessions on work rights for temporary visa holders and employers;
a Strengthening Reporting Protections Pilot, ensuring that visa holders who report exploitation (and comply with a range of criteria) will not have their visa cancelled if a work-related visa condition is breached; and
a Workplace Justice Visa that enables migrant workers with valid visas to remain lawfully in the country while pursuing justice for workplace exploitation.
Some of the shortcomings of this legislation have been described already in Doundiyal’s contribution to Power to Persuade . While Doundiyal focuses on female migrants, another excluded group also requires attention - undocumented migrants. Undocumented migrants are migrants who do not hold a valid visa.
With this suite of legislation, undocumented migrants are given work rights, but no support to assert those rights. They are excluded from the legislation granting access to information sessions outlining their work rights, being assured that they can stay in Australia if they report their situation, or access to a valid visa - through the Workplace Justice Visa - if they wish to stay in Australia to take legal action. Evidence has shown that lack of information, and fear of immigration consequences are hindrances to reporting, and that employers prey on migrants’ reluctance to report. Receiving work rights while being excluded from the processes developed to action those rights creates a contradiction for undocumented migrant workers in Australia.
The exclusion of undocumented migrants from recent Federal legislation around information sessions, a Workplace Justice Visa and protections on reporting exploitation does not align with international human rights conventions. Generally, human rights apply to all humans, regardless of migration status. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) stipulates the obligation on States to provide information on their work rights (Article 33). The ILO Migrant Workers Recommendation 1975 (R151) (Articles 33 and 34) stipulates that all migrants, regardless of status, should have equal treatment to nationals regarding ability to receive all payments owed for work performed, raise legal assistance, and representing their interests before the competent body. The recent Australian legislation that excludes undocumented migrants from information sessions and reporting protections clearly are not in line with these international instruments
This is a contradictory stance to the status of undocumented migrants in Australia. With this suite of legislation, undocumented migrants in Australia have work rights, but the government will not help them assert these rights, or to report exploitation if they experience it. Further, undocumented migrants can be deported or detained if found living in Australia without a visa. This creates a situation where undocumented migrants are contradictorily allowed to work in Australia, but not to live. These recent laws create a two-tiered system that disregards the human rights of those who do not have the right piece of paper. The Australian government should include undocumented migrants in all relevant measures to address migrant worker exploitation, to demonstrate their commitment to addressing this issue.
Content moderator: Sue Olney