Gavin Marshall (Victoria, Australian Labor Party) Share this | Hansard source

I rise to make some brief comments about the Migration Amendment (Employer Sanctions) Bill 2006. This bill amends the Migration Act 1958 to introduce new offences for employers, labour suppliers and other persons who allow illegal persons to work. Currently, it is an offence under section 235 of the act for an unlawful noncitizen to do any work in Australia, whether for reward or otherwise, and for a noncitizen who holds a visa that is subject to a work condition to work in Australia in contravention of that condition. While penalties are applicable to persons who work illegally in Australia, there are no mechanisms in the act to penalise persons who allow noncitizens to work in Australia illegally.

The proposed new offences have the objective and are supposed to be the mechanism that the government is putting in place to deter employers and labour suppliers from employing illegal workers or referring them for work. The offences are supposed to encourage employers and labour suppliers to verify the work entitlements of potential employees when there is a substantial risk that they may indeed be illegal workers. The proposed new offences carry criminal penalties of imprisonment for five years for an aggravated offence or in other cases imprisonment for two years. A feature of this bill, which we welcome very much, is the much higher penalties for offences where aggravating circumstances are present such as where the illegal worker is in a condition of sexual servitude, forced labour or slavery.

Generally speaking, the Labor Party and I commend the theory behind the bill. It looks to introduce new offences for employers, labour suppliers and other persons who allow, encourage or supply illegal workers to work in Australia, and that is to be commended. However, we cannot escape the reality that without any effective policing we can have any number of laws or sanctions but they simply will not be of any use. They will be completely ineffective.

The government has known about the large problems regarding illegal and unregulated workers since a review entitled Review of illegal workers in Australia: improving immigration compliance in the workplace undertaken by DIMIA in 1999, which outlined the problems and offered several solutions. In fact, the review found that work needed to be done in policing and compliance, that most visa overstayers had found employment of some description and that there needed to be work done to address that. The review said:

The Review found that the current measures in place to combat illegal workers were insufficient to address the extent of the illegal worker population. In particular, the Review concluded that:

while DIMA compliance action is increasingly successful, there is little prospect that the workload will diminish.

They also recommended that a system of sanctions be introduced to discourage business owners, employers and labour suppliers from recruiting illegal workers. So, while the government is content to set up systems, checks, compliance regulations and laws, it does not police them adequately or provide the necessary infrastructure for the application of the laws and sanctions that it is legislating for today, which renders the whole process rather pointless and useless. We can demonstrate that quite clearly with the regular and systematic abuse we have seen of the 457 visas, something that has been a contentious issue for some time and is growing. It is getting more and more out of control when we see these visas in particular being abused and misused and little or no effort being applied by the government to police its regulations. We see a flurry of activity once issues are brought to public attention, but it is all reactive. There is no proactive program in place that we can see to ensure that abuses of 457 visas are not occurring in a systematic and systemic way.

One of the fundamental problems with the 457 visa is that it is a free-for-all for employers to simply engage workers from overseas because they would prefer to do it that way. One has to question the underlying motives of that—and the underlying motives are well known to this government because Senator Vanstone indicated that one of the purposes and one of the benefits of 457 visas was to keep a cap on wages and conditions in this country. That is our experience so far. We have seen workers on these visas being used to replace Australian workers. We have seen these 457 visas being used to drive down wages and conditions. We have seen them being used to force people to work extraordinary hours in quite bad occupational health and safety conditions and standards.

Employers, when looking to use the 457 visa, do not even have to demonstrate that there is a shortage of skills here when they want to use that visa application. They simply are able to make the application, get it passed by government and bring people in from overseas to do work whether there is a shortage or not. People talk about the skills shortage as if there is a shortage everywhere. I want to talk a little about the plumbing and electrical industries. It is said often—and often in this place—that there are severe skills shortages in those two trades. That is simply not the case. While there are some shortages in some of the specialist areas of those trades, it is not across the board. As a consequence of that and the abuse of 457 visas, Australian apprentices who are already engaged in apprenticeships are unable to be kept on, trained and to complete their apprenticeships because there is a misconception that there is a skills shortage across the board.

I received some figures yesterday from VICTEC, which is the largest electrical and plumbing group training company in Australia, based in Victoria. Over the course of this year it has had up to 34 apprentices every month unemployed, and it has been unable to provide work for them during this period when at the same time we have employers bringing in supposedly skilled overseas workers for these trades. Out of a much smaller group of 65 plumbing apprentices in the month of January this year, 16 were sent back and VICTEC were unable to provide work for them.

This is happening across the board, not only in group training companies. My understanding is that all the major electrical contracting companies in Victoria are having serious problems keeping their apprentices employed this year and many of those companies have been employing their apprentices for two weeks on and two weeks off. And people are still saying: ‘Let’s bring in people on 457 visas. Let’s bring them in for these trades.’ The problem is that they do not have to demonstrate that there is a skills shortage. An employer does not even have to demonstrate that they have advertised to fill a vacancy that they had in their workforce before they use these particular visas. One can only conclude that they are being used to undermine the working conditions of Australians who are already employed. And, in this case, the flow-on effects are that Australian apprentices—people who are already engaged in apprenticeships—are unable to be trained and fully employed during their training period.

Moving on to another example—but I will come back to the particular example of electricians—yesterday I again asked the minister about the issue of the abuse of 457 visas at ABC Tissues. I asked the minister to confirm that ABC Tissues had been found to be in breach of immigration, industrial workplace safety, and taxation laws in its employment of temporary foreign workers under the 457 visa scheme. And, further, I asked the minister if she could confirm that her department investigated the company in August 2005 and found breaches under the Migration Act.

I also raised these concerns directly with the minister in this place in June this year. I asked the minister how it was possible that ABC Tissues were able to continue to exploit 457 visas and breach a raft of laws after two investigations by the department in less than one year. The minister responded that on 28 July this year the department had issued companies involved with ABC Tissues with a notice of intention to sanction on a number of grounds, including failure to pay the minimum salary level, failure to comply with other immigration laws, failure to comply with workplace relations laws, failure to ensure necessary licensing of workers, failure to notify Immigration of relevant changes of circumstance and failure to deduct taxation instalments. That is a fairly serious set of breaches across the company, yet we see, in the case of ABC Tissues, that they and the companies involved with them are still able to utilise the 457 visa arrangements.

Even after the ongoing breaches since August 2005 were demonstrated—had been investigated by the department—the use of the 457 visas continues. And it would appear that, while there are eventually going to be some sanctions, no sanctions have been put in place at this point in time. That, I think, clearly demonstrates the point I make that all those things have been and were illegal, yet if there is not proper policing, regulation, oversight and control of these arrangements, you can pass all the laws you like, but they effectively become meaningless. You can have all the sanctions you like but, unless you are going to investigate and prosecute people, the sanctions, again, are purely meaningless. While we commend the government for bringing forward this bill increasing the sanctions—although, as we have said, many years too late—we do not see any evidence of the government getting their act together and ensuring there is a proper policing regime in this area.

DIMA regulations stipulate that workers on 457 visas should be skilled and fully qualified for the work they have travelled to undertake and be able to comply with local safety laws. The ABC Tissues case, which came on top of so many others, was, of course, exactly the opposite. It transpired that the site was closed by ABC Tissues for a fortnight after inquiries by WorkCover and concerns by unions. Workers on the site said none of the Chinese workers could speak English, they could not read safety signs or follow emergency procedures and many had to be trained to perform some of the most basic tasks.

Clearly, there is a minimum standard of safety required on building sites in this country. It is a very dangerous industry. To have some workers not complying with safety regulations—because they are incapable of doing so either because of their skill level or their communication skills—puts everyone else on those sites at risk. It is simply not appropriate to say that we can bring people in small pockets onto a construction site and that they can work in an isolated way and will not have an impact on other workers. It is important for everyone on a site to ensure that safety and skills are applied across the board.

In this case, one tradesman said he was stunned to see one of the guest workers make a non-compliant Chinese power tool fit a socket by stripping the cord and inserting the naked wires straight into the plug. As an electrician myself, I shudder at the thought of that sort of activity and at the thought of the safety implications for the rest of the site when that sort of activity is taking place. There were forklift drivers and electricians without appropriate licences as well as workers being paid in China rather than in Australia. The company could not nominate bank accounts where the workers were paid. They could not specify how much the workers were being paid or confirm that superannuation was being paid. These all fall under the breaches that the minister acknowledges have taken place, yet we still see ongoing use of 457 visas by this company.

As for importing Chinese electricians, I have already made the point that electricians in general—certainly construction electricians—are not in shortage in most areas, apart from Western Australia. I have checked with the industry training board. There is no serious shortage of skilled tradespeople across most of Australia in the general application of electrical workers. There are, specifically, shortages in line workers and substation mechanics, but certainly not in electricians that work in the construction industry. You simply cannot bring a Chinese electrician into Australia and apply the Chinese standards, as they have tried to do in this case, to the Australian system.

First of all, there is a minimum training requirement for tradespeople in this country. In the electrical trade, overseas workers from any country apart from New Zealand would have to get their trade recognition certificate. They would have to come here and demonstrate the quality of their schooling. They would need to sit an exam. If they passed a skills test, which would be a practical test and a theoretical test—and, again, you would not be able to do that if you could not speak English—they would get a trade recognition certificate. But that would be only the first step. They would then require a licence to work as an electrician in this country. They would have to sit and pass the full licensing exam before they could be issued with a licence to work.

So 457 visas would simply seem to allow employers to bring people in through a DIMIA controlled process to do work which they are legally not able to do in this country. But there does not seem to be any policing by DIMIA or any checks and balances. In one particular case Chinese electricians were brought in to work on a construction site. They had no trade recognition and no equivalent standard to Australian electricians. There were no licensing requirements. Again, it was accepted by the minister that there had been breaches in licensing requirements, yet people were working in a way that put other workers at risk and, of course, ultimately the work did not comply with the Australian standards. To top it off, this occurred in an area where there is no direct skills shortage. This is the opposition’s concern about this legislation.

As I have said, while we welcome the bill in itself, if there is no proper policing, no regulation, no oversight of these issues—and we do not see any evidence of any—the bill’s sanctions simply become meaningless. We call on the government to put proper structures and resources in place to ensure that there is such oversight. The government does not have to look past the examples of the 457 visa abuse. Cases are coming up day after day where those visas are being abused. The response seems to be reactive. We do not hear of cases—I cannot say there are none but we certainly do not hear of them, and if there are any we would like to hear about them—where the department, in a proactive way, have initiated investigations which have identified breaches of the 457 visa conditions and are able to tell us what remedial action has been taken. I suspect we will not be hearing of those examples because what we believe to be the case is that no such activity takes place.