The future of enforcement for migrant workers in Australia

This Sydney Policy Lab report, The Future of enforcement for migrant workers in Australia (pdf, 1.1MB) by the solicitor Ms Umeya Chaudhuri and Associate Professor Anna Boucher, offers a series of pragmatic policy solutions to both motivate employers to engage with their employees fairly and to remove barriers to justice for migrants who have been exploited.

The conversation about migrant working conditions in Australia remains as important as ever. Before COVID-19, more than 2 million temporary migrants in Australia accounted for up to 10 per cent of the Australian workforce in key sectors such as construction, healthcare, and hospitality. Some of these workers already experienced precarious work arrangements and minimal access to welfare payments; limitations which continued during the pandemic.

When it comes to ensuring fair wages and conditions, Australia has a well-documented enforcement gap between the number of workers experiencing exploitation and the number of actions taken against employers to ensure compliance. On top of the personal cost to families and communities, wage underpayments alone have been estimated to cost the Australian economy $1.35 billion each year, particularly in sectors with high proportions of migrant and other precarious workforces, such as construction, retail, and accommodation and food services.

Research to date indicates that the Fair Work Ombudsman (FWO) does not have sufficient resources to achieve total wage compliance and monitoring across the Australian labour market and that current enforcement mechanisms relying on employer self-regulation and voluntary compliance arrangements have not significantly reduced migrant worker exploitation. While the 2019 Migrant Worker taskforce (the Fels Inquiry) was established to address some of these issues, and the Australian government endorsed all 22 resulting recommendations, substantive reforms are still being implemented.

Drawing on best practice approaches from the State of California (USA), Canada (the Provinces of Ontario, British Columbia and Alberta), New Zealand and the UK (England), this report provides the Australian government with practical policy reform recommendations which can help strengthen the system for the benefit of both workers and industry.

Key recommendations

Increasing and varying penalty enforcement levers

• Legislative and policy reform around civil penalty provisions for strategic litigation efforts on the part of lawyers representing migrant workers, and to explicitly provide for adverse publicity orders.
• Implementing evidence-based, nationwide licensing regimes for industries with widespread exploitation.

Coordinating action with other actors

• Creating stronger partnerships with unions and non-government community organisations through government contracts or memorandums of understanding.

New wage recovery system

• Law reform of civil processes in state Magistrates Courts across Australia could provide another low-cost and accessible jurisdiction to recover wages.
• Law reform to allow costs to be recoverable by legal representatives acting for vulnerable migrant workers, with a requirement for a maximum costs order, to deter employers proceeding to judgment.
• Law reform to lower filing fees for, particularly vulnerable workers.
•  Funding and expanding the amicus curiae, “friend of the court,” function of the Fair Work Ombudsman in small claims jurisdictions.

Overall, the health and economic crises brought on by COVID-19 appear to have exacerbated economic insecurity across Australia. This increases the risk of labour exploitation for already vulnerable workers, of which migrant workers are an important grouping. This report provides practical policy solutions for Australia’s labour enforcement landscape — in particular for migrant workers — with the aim of creating a robust regulatory environment that ensures the labour safety net extends to all those living and working in Australia.

Download the full report: The Future of enforcement for migrant workers in Australia (pdf, 1.1MB)