“A very high proportion of employers will deliberately try to get their international student employees to breach their visa conditions”
SS: In 2011, after identifying high levels of exploitation in the local international student community, RLC established New South Wales’ first dedicated specialist legal service for international students (RLC International Student Service).
Since the introduction of the service, we have run a weekly advice night that assists international students with legal needs. This state-wide service conducts consultations via video link, telephone and face-to-face meetings. The service provides a comprehensive level of services, ranging from advice-based assistance through to full court representation.
The PIE: With the work you’ve done around workplace exploitation, do most of those services come after it’s occurred?
SS: Historically, I would have said yes, but when we started to look at what’s happening to international students, we decided that there were issues that related to conflicts with legislation. It’s those conflicts that I think allow for our students to present to us. In the last few months, we have actually looked at policy review. We’ve broken down the issues in regards to legislation to see what protections should be put in place.
The PIE: What does workplace exploitation look like for international students?
SS: [International] students can work 40 hours a fortnight while in term. Outside of term, they’re unrestricted. Arguably, the government is taking a position that if you are paid the correct award, 40 hours of paid work a fortnight is enough for you to survive. I think that’s the issue international students are experiencing.
Are those hours enough for an international student to be able to survive? It depends on lots of variables. What is impacting on the viability of a student to be able to study and survive is whether they are being paid the correct amount. They’re not. We’re seeing underpayment or non-payment of wages pushing an international student into a position where they need to work more in order to survive [violating the terms of their student visa].
There are also knock-on effects that happen with the underpayment or non-payment. If you have a job to help pay for your accommodation and you don’t get paid or you’re underpaid, it means your tenancy becomes an issue and you have the potential to become homeless. So then there’s another legal problem that starts to present itself.
Secondly, if you have to pay a proportion of your study fees, you might not be meeting those requirements, which then can affect your study progression. If that’s the case, then it becomes a visa issue.
“We’ll ask whether or not there are other people employed within that employer that are in a similar situation”
The PIE: Why does this happen?
SS: A very high proportion of employers will deliberately try to get their international student employees to breach their visa conditions. Then they use that as a means by which they can dictate back to the international student with that threat of a breach.
It’s almost become a business model. We’re seeing more and more of the same characteristics of an employer setting a chain of events in motion so that it leads to a potential breach of visa. That’s why we saw the need to look at policy review.
The PIE: What does RLC do to help international students who are being exploited?
SS: It varies. We’ll look at what breaches may have occurred in regards to the visa, we will assess based on those breaches and we’ll ask whether or not there are other people employed within that employer that are in a similar situation.
What we’re finding more and more often is there are multiple international students who are employed by that one employer who are in a similar situation. We will then take that client or clients on and pursue it through remedies.
Those remedies can be a letter of demand as a first initiative. The second is to the Fair Work Ombudsman; and then obviously through the courts themselves. We’ll assist all the way through. What we’re trying to do is highlight to employers that if the conduct you are overlaying with international students is part of your business model, we will pursue you.
The only way we’re going to create any change is to actually prosecute someone and take them through the courts so they can see there’s a detriment. We will have a client come in and the employer is an employer we’ve had an issue with before. [The employer’s] business model is: “Let’s get away with what we can because the detriments to us are very light. It’s still attractive to our bottom lines to adopt this business model, it doesn’t matter even if we run through the courts and get a fine.” It’s been broken down to the extent where they can actually work out their profit and losses against having this business model.
“More and more employers are starting to look at international students as incredibly vulnerable”
The PIE: Is RLC advocating for tougher penalties for employers who are repeatedly doing this?
SS: As much as we’d like to see employers being penalised more for their conduct, and there’s a lot of laws in place to do so, I think if an international student knows they can come forward without the fear of DIBP taking a position, that’s where you’re going to create some form of change. Employers know that international students are unlikely to seek legal advice from RLC or approach the Fair Work Ombudsman because they know they have breached their visa conditions.
That’s the thing you’ve got to overcome, because as soon as you know that as an employer, you’re likely to adopt that business model yourself because it’s very attractive for your bottom line. The downside is, what we’re seeing now is a race to the bottom.
More and more employers are starting to look at international students as incredibly vulnerable and a means by which they can make their bottom line more attractive for themselves. That is why I think we’re seeing more and more systemic issues than we had in the past.
The PIE: Does this have repercussions for the domestic job market?
SS: I think yes. I really do. I think if you have a business model that is a race to a bottom, then ultimately what you are doing is undermining the domestic market. An employer knows they can get away with paying as little as A$8 an hour, where if you had a domestic student who knows the minimum wage is $17.29 (in 2016), then ultimately they’re going to employ the international student who’s prepared to work for less.
I don’t think the international student is undertaking the paid work for less purely on the basis of they are cheap labour. It’s because they actually don’t understand. I think if you spoke to the majority of my clients and said you are entitled to $17.29, without exception, they’d say: “We didn’t know that. We were told the hourly rate was $8, or $10, or $12 per hour.”
If you have it so that everything’s on parity, so everybody knows the minimum amount they should be paid is whatever it is, you’re going to be in a position where an employer will employ the person who has the best skill sets for that particular position.
All the time you’re not legislating and you’re not suing the employers it’s going to have a detrimental effect on the domestic marketplace.
“We actually have orientation weeks where we will head out to the providers and we provide information on site”
The PIE: Is it difficult to get education providers to understand and listen to the importance of the work RLC is undertaking?
SS: Not really, no. We deal with a multitude of the universities and smaller and private education providers. The majority of those refer students to us on a regular basis. We have good communications with them. We actually have orientation weeks where we will head out to the providers and we provide information on site. That is usually at the request of the education providers themselves.
I don’t think that’s a problem. They know what’s happening and they want to do everything they can to assist international students in their plight.
The PIE: What will RLC be focussing on in the future?
SS: Addressing the legislation and actually putting reviews in place. That’s what we’ve been working on over the last six months internally with the employment practice as well.
Until there is some form of protections that will allow for an international student to approach the Fair Work Ombudsman without fear possible breaches to any visa conditions will have ramifications for them, we’re always going to see those clients.
Article by Anton Crace. Reproduced from THE PIE.
Originally published 15 February 2017.
