Protecting migrant workers requires a rethink on employer freedoms

Employment Minister Michaelia Cash recognises the disadvantages faced by temporary migrant workers. Mick Tsikas/AAP

Detail on the federal government’s long-awaited Migrant Workers Taskforce has barely made a splash this week. This is surprising given last year’s 7-Eleven firestorm exposing the widespread exploitation and coercion of international students employed in 7-Eleven franchises.

The new taskforce, to be headed up by Allan Fels and David Cousins (who came to prominence in this space as chairs of the now infamous 7-Eleven wages panel) brings together a vast array of different government departments and agencies. Its brief is to identify and address the systemic causes of migrant worker exploitation and provide a vehicle for inter-agency collaboration. It’s a big mandate for a taskforce which is only set to meet four times a year.

The mission which now confronts Employment Minister Michaelia Cash and her taskforce is to redesign Australia’s rather chaotic and unfair temporary labour migration program. To do this they will need to address the underlying causes of temporary migrant worker vulnerability in the Australian labour market. This will necessarily involve curtailing some of the freedoms currently enjoyed by employers who engage temporary migrant workers.

The establishment of the taskforce shows the government recognises the inherent vulnerability of temporary migrant workers. In the UK, post Brexit, the Conservative government appears to be going backwards on this issue by demonising temporary migrant workers and increasing government controls on them.

Cash is to be commended for being the first Minister for Employment to recognise the particular disadvantage faced by temporary migrant workers. Although such workers are entitled to the protections contained in the Fair Work Act 2009 (Cth), which applies to all workers in Australia, Cash appears to understand that temporary migrant workers find it difficult to access legal remedies and exercise their workplace rights under Australian law. This is a fact that has been well established in the academic literature, both here and abroad.

An essential starting point for the taskforce is to acknowledge the precarious position of migrant workers at work – their temporariness, their dependence on employers for essential income (including to send home), their need for ongoing sponsorship (in the case of 457 visa holders) and the desire of many for permanent residency.

It’s vital that the taskforce is able to affect real policy change, rather than being just another voice identifying temporary migrant worker vulnerability. This is a space which is becoming increasingly crowded and it’s difficult to know where the taskforce fits in. Since 2014 Cash has created a reconstituted Ministerial Advisory Council on Skilled Migration, Operation Cardena, a Ministerial Working Group on Vulnerable Visa workers and a new Fair Work Ombudsman Migrant Worker Strategy and Engagement Division. Despite the addition of these new voices, there has been very little change to the regulations governing temporary migrant work.

Additionally, in the past four years there have been eight separate official reviews of Australia’s temporary labour migration program. In the main, these reviews have made important recommendations for how the regulation of temporary migrant work could be improved. Although the government has implemented some of these recommendations, many of the more challenging ones (for example, recommendations around the introduction of independent labour market testing and greater regulation of labour hire use) have been conveniently bypassed.

The primary question facing Minister Cash and her taskforce is whether they are prepared to challenge the primacy of employers in the current regulatory design of Australia’s temporary labour migration program.

Although it is critical that employer interests are met through the labour migration program, it is equally important that the use of temporary labour migration meets Australia’s national interest and is fair to temporary migrant workers. In our new book, Rosemary Owens and I argue there needs to more nuanced and stronger enforcement and greater regulatory control and supervision of Australia’s temporary migration program.

The primary focus of the temporary migrant program cannot be on the efficacy of the visa process and the reduction of regulatory burdens on business. It is critical that genuine efforts are made to ensure that the design of visas for temporary migrant work doesn’t open the door to exploitative work.