Stronger Protections For Migrant Workers: What Employers Need To Know

In June 2023 the Migration Amendment (Strengthening Employer Compliance) Bill 2023 (Bill) was introduced into Parliament. The Bill seeks to strengthen employer compliance measures by amending the Migration Act 1958 (Migration Act) to protect temporary migrant workers, where previously they may have been coerced into breaching their visa conditions and exploited in the workplace.

This change coincides with recent changes to the Fair Work Act 2009 (FW Act) aimed at protecting migrant workers. The FW Act now provides that migrant workers will be entitled to the same wages and entitlements as other employees, even if they do not have the right to work in Australia, including where they breach a visa condition.

We discuss these recent developments below.

Migration Amendment (Strengthening Employer Compliance) Bill 2023

Relevant proposed changes under the Bill for employers to be aware of include:

• Introduction of a criminal offence for employers who unduly coerce, pressure, or influence migrant workers into breaching work-related via conditions. The offence will have a maximum penalty of 2 years imprisonment, and/or 360 penalty units (currently approximately $70,000);
• Employers who have breached migration laws will be prohibited from further employing temporary migrant workers for a period of time;
• Increase of the maximum penalties for breaches of the Migration Act. The increase is intended to reflect the seriousness of illegal work practices and temporary migrant worker exploitation, and to deter and punish serious and wilful offending; and
• Expansion of the use of compliance tools such as enforceable undertakings and compliance notices to encourage employers to voluntarily comply with the Migration Act.

There are also other changes proposed to the Migration Act, including removal of criminal offences for working in breach of visa conditions and expanding the scope of matters to be considered when cancelling visa.

Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023

On 22 June 2023, the Australian Government passed the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023, amending the FW Act. We previously reported this update in our article here.

The FW Act now expressly confirms that migrant workers in Australia, irrespective of their immigration status, have the same rights and entitlements under workplace laws as other employees working in Australia.

This change clarifies that a breach of the Migration Act doesn’t affect the validity of an employment contract or a contract for services. This includes in circumstances where a migrant worker has breached a condition of their visa or doesn’t have work rights, or the right to be in Australia.

While migrant workers who have breached visa conditions at this time can still be prosecuted under the Migration Act (until the Bill comes into effect), they will still be entitled to receive their correct compensation for all the hours that they worked under the relevant industrial instrument.

What Does It Mean For Employers?

While the Bill is yet to be legislated, employers of migrant workers will need to be aware of the numerous proposed amendments, and changes to the FW Act, and how they may impact their workplaces.

HR Legal will keep you updated with relevant developments when the Bill is formally passed by Parliament.

For more information on how these changes may impact your workplace, please contact HR Legal.