Migrant workers and visa holders continue to be one of the most vulnerable worker cohorts, and are continually over-represented in disputes as well as our compliance and enforcement outcomes. While migrant workers make up 6% of the Australian workforce1, they account for 20% of all formal disputes completed by the FWO in 2017-18.
The new provisions in the Fair Work Amendment (Protecting Vulnerable Workers) Act that commenced in September 2017 recognise that exploitation of vulnerable workers is a serious and systemic issue in Australia’s workplace relations system that needs to be addressed. The new laws equipped the FWO with extra tools and higher penalties that will help us respond more effectively to the exploitation of this cohort.
The over-representation of migrant workers in our disputes potentially reflects their unique situation: being new to the Australian labour market, not having baseline knowledge about workplace rights and entitlements, and potentially experiencing language and cultural barriers. Some migrant workers may also be reluctant to speak with public officials and may be concerned about their visa status if they raise issues. These factors can make migrant workers particularly vulnerable to exploitative practices from unscrupulous employers. We have actively sought to encourage this cohort to seek our assistance with issues, by identifying and removing barriers that may make them reluctant to seek help.
In the last year, we continued with our commitment to address and remedy the exploitation of these vulnerable workers. Activities performed in this regard include:
- using all enforcement tools at our disposal to deal with the most serious cases of non-compliance against this cohort:
- Sixty-three per cent of the court cases initiated in 2017-18 involved litigating employers who exploit the vulnerabilities of migrant workers. This included some of the highest penalties the FWO has ever secured, such as a record $660 000 against a former owner of a fruit market, and $510 000 against a contract cleaning company. The judgments associated with these enforcement
outcomes evidenced the community’s concern with instances of deliberate and blatant exploitation of vulnerable overseas workers, and act as a powerful message of deterrence to other employers.
- We continue to investigate and litigate 7-Eleven franchisees and outlets who take advantage of vulnerable workers, including securing almost $200 000 in penalties against a 7-Eleven outlet in Brisbane for falsifying records and underpaying two international students. 7-Eleven entered into a Proactive Compliance Deed with the FWO in late 2016, committing to a range of measures designed to ensure all its workers receive their lawful entitlements through strong accountability for all operators across its franchise network.
- Our compliance activity into Caltex's retail fuel outlets in 2017-18 found a non-compliance rate of 76% across 25 franchisee sites, with 17 of those site operators being from non-English speaking backgrounds. Sixty per cent of employees involved in the audit were also visa holders. This activity resulted in the use of 22 enforcement tools, including two litigations.
- adding more resources and tools to the FWO website to make it easier than ever for migrant workers and employers to get information about their workplace rights and obligations. For more information about these resources, see Online Services
- implementing our International Students' Strategy. Developed in consultation with key stakeholders, the strategy involved an open letter to international students that was distributed to selected media outlets (including major metropolitan newspapers as well as
some Chinese, Vietnamese and Indian publications) and through targeted social media channels. The letter urged international students to get informed about their workplace rights and seek help from the FWO where required. In the subsequent weeks, the agency received double the usual volume of anonymous reports from international students and our online in-language resources had increased visits. We also disseminated a communication package to relevant stakeholders and provided targeted social media content, knowing that this medium is popular with students
- continuing to work with key communities and stakeholders to not only better communicate with this cohort, but also to increase our understanding of the reasons for the high rates of non-compliance by employers from culturally and linguistically diverse backgrounds. Key activities and initiatives with communities and stakeholders included:
- the continuation of our visa assurance protocol, developed with the Department of Home Affairs (Home Affairs). Under the protocol, a worker's temporary visa will not be cancelled if they require our assistance with workplace issues and meet other criteria, such as committing to abide by visa conditions in the future2
- participating in Taskforce Cadena, we also share intelligence and data with Home Affairs to target and disrupt entities seeking to commit visa fraud and exploit foreign workers in Australia
- finalising a strategy, in consultation with Korean business leaders, Korean media and the Korean Consular General, to bring about a culture of compliance among the Korean community in Australia. Key activities included producing in-language resources for employers and employees, and participation in the Korean Australian Business Forum
- working with the Department of Jobs and Small Business to sponsor and support research into the information needs of temporary migrant workers. The research focused on how best to inform migrant workers about their rights and obligations in regards to workplace laws in Australia and sought input directly from more than 2000 migrant workers from 39 countries and regions, and was conducted in 12 languages (including English)
- continuing to work with the Department of Jobs and Small Business, and other agencies, as a member of the Migrant Workers' Taskforce, looking to maximise opportunities to improve outcomes for migrant workers
- participating in forums and networks, and working collaboratively with government bodies and key stakeholders to combat human trafficking and slavery-like practices. This included referring suspected instances of human trafficking and slavery to the Australian Federal Police and sharing information about our work through the Interdepartmental Committee (IDC) on Human Trafficking and Slavery, the National Human Trafficking Roundtable and the Labour Exploitation Working Group. While offences relating to trafficking of persons do not fall within the operational remit of the FWO, we acknowledge that the employees and employers we interact with may be victims or perpetrators of human trafficking and slavery.
- This percentage has been derived by dividing the number of selected visa types with working entitlements by total persons employed. Home Affairs, Temporary entrants and New Zealand citizens in Australia, as at 30 June 2016, Temporary entrants in Australia (stock data) statistics , p. 3, accessed 27 September 2018. Australian Bureau of Statistics (ABS), Labour Force Australia, June 2016, cat. no. 6202.0
, Table 1. Labour force status by Sex, Australia - Trend, Seasonally adjusted and Original, accessed 27 September 2018.
- We have an agreement with Home Affairs that a person's temporary visa will not be cancelled if they had an entitlement to work as part of their visa, believe they have been exploited at work, have reported their circumstances to us and are actively assisting us in an investigation. This applies as long as they commit to abiding by visa conditions in the future and there is no other basis for visa cancellation (such as on national security, character, health or fraud grounds).