RLC Briefing Paper: Combatting Exploitation of International Students in the Workforce
In RLC's experience, international students frequently have a visa issue associated with their legal problem, and fears about their visa status can prevent these students from seeking advice or asserting their rights.
The RLC International Students and Employment Law practices regularly deal with international students who face serious exploitation at work but are constrained from taking action if they have worked over their 40 hour per fortnight visa condition, the breach of which is a clear threat to their visa status.
The focus of our proposal is to address unscrupulous employment practices and exploitation of vulnerable employees who are very unlikely to report breaches of workplace laws as they risk their visa status.
The Senate Report, A National Disgrace: The Exploitation of Temporary Work Visa Holders (‘the Senate Report’), released in March 2016, addressed this issue in detail at Chapter 8. The Report noted, at [8.45]:
… one of the key points emphasised by several submitters and witnesses were the draconian consequences under the Migration Act that flowed from a temporary visa worker breaching a condition of their visa. The severity of the consequences was seen as a structural incentive for an employer to entice or coerce a temporary visa worker into breaching a condition of their visa in order to gain leverage over the worker.
See also the Productivity Commission 2015 report Workplace Relations Framework regarding threats by employers to report migrants who have breached visa conditions, even where there has been coercion, as deterring complaints of exploitative work conditions. (Productivity Commission Inquiry Report No. 76, 30 November 2015, at 921.)
We propose a decision making protocol which, in most cases, provides for a first and final warning so, if no further breach, a visa holder can continue with their studies and the integrity of workplace laws and conditions are maintained. This will also allow relevant agencies, including the DIBP, FWO and AFP, to be apprised of unscrupulous employers and labour hire companies and so buttress current and ongoing workplace investigations. We propose that this decision making protocol be in the form of a Ministerial Direction as made under s499 of the Act.
We have drawn on the submission of Associate Professor Joo-Cheong Tham to the Senate Inquiry, in which he proposed an amendment to the Migration Act 1958 (the Act) at section 116 and 235 (see the Senate Report at [8.56]ff). We propose that such provisions could be incorporated into a Ministerial Direction.
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