The Refugee Council of Australia made a submission to the Senate Standing Committees on Education And Employment concerning the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023. RCOA welcomes the government’s introduction of the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023. Section 40B of the proposed legislation will provide much needed clarity to ensure that all people have access to protection under the Fair Work Act 2009, regardless of their visa status. For refugees and people seeking asylum, it will help address worker exploitation by ensuring that people can seek protection under the Fair Work Act for underpayment, withholding of wages, and lack of workplace entitlements. It is a welcome first step to address exploitation faced by migrants, refugees and people seeking asylum. However, much more is needed in order to fully address the ongoing crisis of exploitation of people on temporary visas, especially ensuring that all people seeking asylum have work rights and access to a safety net.
Workplace exploitation of refugees and people seeking asylum – Section 40B
Refugees and people seeking asylum are particularly vulnerable to exploitation in the workplace, due to their insecure visa status and unfamiliarity with Australian workplace laws and entitlements.
Insecure visas, especially for those who are seeking asylum, expose people to significant risk of exploitation. People seeking asylum are often on short term bridging visas while they wait an outcome of their asylum claim. Others may even be in the community without a visa, at various stages of the application process. While some have work rights, many people seeking asylum are not allowed to work due to a restriction on their visa (or a lack of a valid visa). As discussed below, most people seeking asylum do not have access to income support such as the Status Resolution Support Service (SRSS). Combined, these policies create dire circumstances for particularly vulnerable people and pushes them into exploitative work due to their destitution. Appendix A provides a breakdown of the approximately 110,218 people seeking asylum and their current visa status, access to work rights and SRSS income support.
In addition to visa insecurity, another factor which makes refugees and people seeking asylum vulnerable to exploitation is the lack of knowledge of Australian workplace rights and entitlements. Many are unaware of the availability of services and remedies to seek redress for exploitation, and are often fearful of making a complaint against their employer for fear of being penalised due to their migration status.
Section 40B of the proposed Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 will go some way in addressing this issue, by clarifying that all people are entitled to protection under the Fair Work Act regardless of their visa status under the Migration Act 1958. However, it does not prevent people from being penalised under the Migration Act, for example, for working unlawfully under section 235 of the Migration Act. As such, people may still be fearful of making a complaint to the Fair Work Commission for fear of being charged with an offence for working unlawfully. As such, it is vital that all people seeking asylum have access to work rights in order to address the issue of workplace exploitation.
Ensure all people seeking asylum have work rights
Finding ways to regularise visa status and remove employment barriers for the 110,000 people who have sought asylum and are currently in Australia is vital. This is important in the context of the lengthy delays in processing onshore protection applications (for example, it takes an average of two years to process an initial application and six years for a decision which is appealed to the Administrative Appeals Tribunal). This means that a person can be waiting in Australia for many years before they receive a decision about their refugee claim. In this time, they usually remain on a bridging visa with the same conditions as their original visa. It means their access to work rights can be limited or denied, despite the change in their personal circumstances. For example, people who entered Australia on a tourist visa often have no work rights.
Granting or reinstating work rights for people who have sought protection as they move through the review and processing stages, and exploring options for alternative skilled visa pathways for those who have received a final refusal on their protection claim, will reduce the risk of worker exploitation and ensure that people who have been working for many years, often in important skills shortage areas, can continue to sustain their contribution to the Australian labour force.
Ensure access to an income safety net
Another driver of exploitation is the lack of an income safety net for people awaiting an outcome of their asylum application. Without income support, people are often desperate to undertake any work in order to survive and provide for their family. This places people in an extremely precarious situation where they are fearful of speaking out because they do not have any income support for fall back on should they lose their jobs.
Unfortunately, the Federal Program to support people seeking asylum during their protection application process (the Status Resolution Support Service, SRSS) has been cut drastically over the past eight years. The narrow eligibility criteria mean very few people qualify for financial and other support. Thousands of people who sought Australia’s protection are now living in our communities in deep poverty, facing homelessness and hunger.
Workplace exploitation will not be fully addressed until people are provided with a safety net. It is imperative that eligibility to the SRSS be expanded so that people are not forced into exploitative work out of desperation.
Ensure all people seeking asylum have work rights
The Australian Government should ensure that all people seeking asylum remain on a visa with work rights while they remain in the country, including while they are seeking review of their decision in the AAT or federal courts.
Expand the eligibility criteria for the SRSS Program
The Australian Government should extend SRSS eligibility criteria to focus on the needs and vulnerabilities of individuals and families so that it prevents destitution and exploitation.
Pass the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023
The Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 should be passed.