Greater protections needed for migrant workers during COVID-19

Community legal centres have called on the federal government to protect migrant workers from visa cancellations during the COVID-19 crisis and urged businesses to rely on stand-down provisions rather than sack skilled employees.

In a letter to the Attorney-General Hon Christian Porter MP, Community Legal Centres NSW (CLCNSW) have called on federal government to provide greater flexibility to people holding Temporary Skills Shortage visas, who are at risk of losing jobs during the health crisis.

The migration law recommendations set out in the CLCNSW letter were drafted with input from Redfern Legal Centre (RLC) and Marrickville Legal Centre (MLC), and were also sent to Hon Alan Tudge MP, Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, and Hon Dan Tehan MP, Minister for Education.  

Under migration law, a temporary skill shortage visa holder is only allowed to work for the employer who sponsors them. Further, if these visa holders are dismissed, in accordance with their visa conditions, they have only 60 or 90 days to find alternate employment before their visas expire. The letter stresses that business responses to the current pandemic will unintentionally force Temporary Skills Shortage visa holders into poverty and destitution. 

The letter calls for amendments to the Fair Work Act 2009 (Cth) to provide clarity that “stand downs” do not constitute termination and recommends that social security policy should be amended to make clear that workers are eligible for Centrelink payments during the period they’ve been stood down.

MLC Managing Principal Solicitor, Vasili Maroulis said it would be counter-productive for employers to terminate existing contracts and lose skilled workers, since employers are able to utilise stand-down provisions.

“We urge our leaders for legislative guidance to protect the continuity of employment and accrued entitlements of retaining existing employees, to ensure that we as a community are best placed to bounce-back once we get through this."

In a separate letter, sent 19 March 2020, RLC, MLC and CLCNSW also responded to comments made by Jennifer Westacott, chief executive of the Business Council of Australia, which referred to 'rehiring' workers as a recommended strategy for businesses facing the COVID-19 crisis.

The joint letter urged the Business Council to recommend to members that termination should be a last resort and to utilise stand down provisions and direct employees to temporary welfare payments.

Positively, Ms Westacott responded to this joint letter on 25 March 2020, and confirmed that the Business Council of Australia is trying wherever possible to help companies retain staff.

RLC employment solicitor Sharmilla Bargon said that a number of other countries have identified that worker retention is critical in supporting the economy, implementing strategies in response to COVID-19 that allow workers to maintain employment and income.

“We are advocating for swift action from the federal Attorney-General to provide legislative guidance about the infrequently used 'stand-down' provisions in the Fair Work Act 2009 (Cth) and to allow stood-down sponsored employees to work, temporarily, at other workplaces,” Ms Bargon said,

See also joint media release: Urgent federal policy response needed for temporary visa holders during COVID-19 (MLC, RLC, CLCNSW, 23 March 2020)