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Is it possible to solve migrant worker abuse?

A look at Australia’s continuing problems with migrant worker abuse, and whether or not they can be fully solved.

Foreigners working in Australia on holiday and tourism visas are routinely underpaid, not paid, and even forced to pay their employer. They’ve been overworked, verbally abused and sexually harassed. They include people labouring in the worst heat Australia can muster for 11 hours without a break, and people being asked to perform sexual favours in return for the ability to work.

A new study on the topic, from UTS and UNSW, outlines the scope of the problem.

Surveying 4,322 temporary migrants, it found almost a third were earning half the minimum wage. It also found a depressing number were subjected to bad practices, including five per cent who had to pay a deposit for their job, and another five per cent who had their passport illegally confiscated by their employer or accommodation provider.

Given that these reports have been making headlines since 2015, it’s appropriate to ask, why hasn’t more changed?

The answer might be that the problem is endemic to our current holiday visa system.

A system with a flaw

The appeal of Australia’s Working Holiday visas program to business and government is obvious. Agriculture remains a big part of our economy but the manual labour it requires to run is hard and often not well-paid, so not enough Australians decide to do it.

So a reliable source of seasonal labour, such as young backpackers, is clearly useful. But it’s the method of implementation that’s really shrewd.

The requirement to work three months in specified jobs in regional Australia is only applied to those who want the Second Working Holiday visa, which gives holders the right to stay in Australia for an extra 12 months beyond the initial holiday visa. So there’s a big incentive for those with a strong desire to stay in Australia, whatever the price. Unfortunately, this makes them prey to unscrupulous employers.

A provision for scoundrels

Employers hold all the cards, as they are the ones who signoff on days worked, and provide proof that someone is eligible to remain for another year. The ability to withhold that proof, and the time limit within which workers have to operate, offers plenty of leeway for abuse to the unscrupulous. Not to mention, the location of many of these jobs make it difficult to access, or even learn about, the legal protections to which you’re entitled.

Finally, the resources of the Fair Work Ombudsman are limited.

Take the case of Charlene Pickett from the UK and her Belgian boyfriend, reported on “We first went to Fair Work, who told us we were being grossly underpaid but all we could do was report them. They told us there wasn’t anything they could do as they only went after companies that were larger and had been reported several times.”

What’s the solution?

While this article mostly addresses workers on holiday visas working in regional areas, the problem extends to those on student visas, and foreign workers in the gig economy. The most blunt solution to the problem is radically transform the visa system for unskilled labour as it stands. But that doesn’t seem politically feasible or fair to the employers (and their employees) who are using it as intended.

Indeed the failure of a recent trial program to get unemployed Australians to take on regional seasonal work has caused some in the agricultural industry to call for more permanent holiday visa type programs.

The practical solution is to provide more resources and power to the Fair Work Ombudsman to crack down on the minority of employers who are dodgy. It’s yet to be seen whether the Protecting Vulnerable Workers amendment (which HRM has written about), will be enough.

Aaron Goonrey, partner at Lander & Rogers’ Workplace Relations & Safety practice, says that while it’s too early to draw firm conclusions, the amendment should go a long way to giving the Ombudsman the tools it needs to identify and respond to exploitation. “The biggest issues with these situations is often exposing them in the first place,” he says.

Also, a Fair Farms Initiative, launched by the Australian horticulture industry and backed by the government, is seeking to develop a system that would require employers to submit to certain regulations, such as workplace relations risk assessments. Promisingly, it is also seeking to offer a course in human resources for horticulture employers.

Time will tell if these initiatives are enough to fix the holes in a flawed system.

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Thanks for referencing the Fair Farms Initiative. We would be very happy to provide more detail on any aspect of the program. Just a point of clarification, there is no longer a requirement for employers to sign off on the 88 days and there are a number of other mechanisms for workers to ‘prove’ they have completed the 88 days of farm including payslips (a legal requirement) and even bank account details. As the peak body for QLD horticulture, we are pleased with these reforms as it does reduce the potential for the unscrupulous few to exploit the power imbalance… Read more »

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