Australia: Forthcoming Law to Protect Workers from Exploitation and Create New Compliance Responsibilities for Employers

Update August 16, 2024: As previously reported, the Australian government started implementing the Workplace Justice (subclass 408 visa) pilot program on July 1, 2024. The program allows temporary migrants who have faced workplace exploitation to remain in Australia for six to 12 months, with a possibility to extend for up to four years, to pursue workplace justice activities (such as criminal or civil proceedings where the individual was a victim of worker exploitation) at no cost. Applicants must present a certification issued by a government-authorized entity that may attest to a matter of workplace exploitation. The authorities define ‘matters of workplace exploitation’ to include the following: underpayment or non-payment of wages or other workplace entitlements; unlawful, unpaid or underpaid training or trials; up-front payment or deposit for a job; misclassification of workers as independent contractors instead of employees; unlawful deductions from wages; unfair dismissal; non-compliance with workplace health and safety requirements; bullying; sexual harassment; discrimination; and coercion, undue influence or pressure, or misrepresentation. Once approved, holders can work while they resolve their workplace issues. 

Update March 20, 2024: Based on an announcement made by the Minister for Immigration, Citizenship and Multicultural Affairs, there have been updates to the below Act. From July 1, 2024, the government will be able to ban employers who were found to have exploited migrant workers under the Fair Work Act or who breached their sponsorship obligations under the Migration Regulations, from hiring temporary visa holders (in addition to the ban on sponsoring temporary skilled workers). This new policy targets business models used by unscrupulous employers (who are, under the current rules, still free to hire foreign students, backpackers, temporary graduates, or bridging visa holders) to undermine wages and working conditions across Australia.

The Australian government also announced that two pilot programs, which address visa barriers preventing foreign nationals from speaking up and seeking redress, will commence from July 1, 2024. These programs will introduce a formal protection against visa cancellation to give foreign nationals confidence to report a wrongdoing, even if they have breached a work-based visa condition. These also aim to test the concept of a workplace justice visa, which is designed to enable foreign nationals to remain in Australia while they seek workplace justice.

February 22, 2024: Following the Australian government’s announcement in 2023 that it will set aside AUD 50 million to improve the protections for visa holders against exploitative workplaces, the government will introduce new legislation to improve employer compliance in this regard. The new law (called the ‘the Migration Amendment (Strengthening Employer Compliance) Act 2024’) will come into effect July 1, 2024 and will include new criminal offences and associated civil penalties for employers who unduly influence, pressure or coerce a non-citizen to breach a work-related visa condition or accept an exploitative work arrangement to meet a work-related visa condition; allow the Department of Home Affairs to prohibit an employer convicted of these offences, or who have contravened certain migration or Fair Work laws from employing additional temporary migrant workers; and publish names of prohibited employers on the Department of Home Affairs Website, among other protections and compliance efforts. Other more long-term proposals include a new Workplace Justice visa to protect individuals who have spoken up about an exploitative employer and resigned from their place of  employment; a longer timeframe that a Temporary Skill Shortage subclass 482 visa holder can be without an employer; and improved intelligence, investigations and compliance capability in the Department of Home Affairs. Fragomen has a specialist Advisory and Compliance practice that can assist employers with preparing for these changes by conducting internal audits, reviewing current systems and processes and providing guidance on best practice in immigration compliance.