George Campbell (NSW, Australian Labor Party) Share this | Hansard source

The Migration Amendment (Employer Sanctions) Bill 2006 amends the Migration Act 1958. It does so by introducing new offences for employers, labour suppliers and other persons who allow illegal workers to work in this country. 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 a noncitizen who holds a visa that is subject to a work condition to work in Australia in contravention of that condition. We know that currently there are penalties that are applicable to persons who work in this country illegally. They range up to having to leave the country if they are caught in those circumstances.

However, there are no mechanisms—and there have been no mechanisms—in the act to penalise persons who allow noncitizens to work in Australia illegally. In fact, there has been no way in which we have been able to put pressure on employers who set out to exploit people in the workplace who are in this country illegally or as tourists and to breach our current laws. They are able to do so, and have always been able to do so, with impunity. So it is not before time that this legislation has been introduced. The proposed new offences will deter employers and labour suppliers from employing illegal workers or referring them for work and will encourage employers and labour suppliers to verify the work entitlements of potential employees when there is a substantial risk that they may be illegal workers.

The proposed new offences carry criminal penalties of imprisonment for five years for an aggravated offence and, in any other case, imprisonment for two years. A feature of the bill is the much higher penalties for offences where aggravating circumstances are present. These include where the worker is in a condition of sexual servitude, forced labour or slavery. But, interestingly enough, the penalties specified in the bill will only take effect six months after the passage of the bill. You have to ask: why the time lag?

There has been an argument that there should be an imposition of strict liability on employers. It is true that the definition of ‘recklessness’ within the bill will allow some employers to escape liability even though they have employed illegal workers. There will be some areas where it will be difficult to establish that an employer did so knowingly or recklessly. However, it is difficult to justify the introduction of strict liability as it would put an extraordinary imposition on employers. It is not always easy to assess whether or not someone is an illegal worker. In particular, people without work rights can be granted tax file numbers, which would otherwise be the simplest test. Consequently, the level of checking that strict liability would impose on employers could be seen as excessive. For this reason, liability is imposed on an employer only if they act knowingly or recklessly.

The flip side of this, however, is that it leaves holes that offending employers may be able to get through. The onus of proof may be too heavy in many otherwise legitimate cases. However, it has to be said that whilst these amendments to the Migration Act are welcome—and, as I said, they are being made not before time—and while they may, in a lot of circumstances, prevent persons who otherwise would not be able to work here from being exploited in the workplace, there will still be many who are able to slip through the net.

However, these conditions will not apply in the circumstances of temporary migrant workers—workers who are brought here on 457 visas or 456 visas for temporary employment in this country. A spate of issues have arisen in relation to temporary migrant workers over the past couple of years, a number of which have been identified by my colleague Senator Marshall in his contribution here this morning. We have seen workers employed in Australia on 457 visas where the visa terms are nowhere near the reality of the people’s employment or the circumstances under which those persons are being employed.

Some 40,000 workers, we understand, will be granted 457 visas this year. That is a boom of some 43 per cent up from the 28,000 who were employed last year. The visas were intended for companies looking to import skilled labour that was otherwise unavailable because of skill shortages. These skill shortages, I might add, did not suddenly hit us between the eyes; skill shortages were identified very early in the piece. In fact, I recall chairing a committee—the Senate Employment, Workplace Relations and Education Committee—in an inquiry it held in 2003, and its report entitled Bridging the skills divide made something like 49 recommendations to this government on ways and means of dealing with the issue of skill shortages, most of which were totally ignored.

So the skill shortage is not something that has suddenly emerged. It was identified early and people—employers and employer organisations—have been clamouring for this government to do something about it. It is a situation that was substantially ignored by this government over a number of years and it has directly led to a circumstance where visas are being issued to import skilled labour because of the claim those skills are no longer available.

The requirement of those visas essentially was that the company would demonstrate an inability to find appropriate labour in Australia and then ask to import a worker to do the job. But, whilst there is a requirement for employers to demonstrate that there is a skill shortage, in practice the department does not require applicants for these visas to demonstrate that they have identified a skill shortage or that they have taken action to establish whether persons with the skills required are available in the area in which the work is going to be undertaken.

It is accepted by this government that the fact that we have an unemployment rate across the board of 5.7 per cent—I think those were the last figures that were issued—is sufficient to establish that we have a labour shortage and that the skills are unavailable. We know that those figures are averaged—that they are a reflection of a sample survey—and we know that unemployment in many parts of this country is substantially higher than the national average, particularly in regional Australia, where a lot of this work is being undertaken by persons on 457 visas. But there is no requirement—the department is not insisting on it—for employers to demonstrate that they have established that in the marketplace there is a shortage of the skills that they are seeking. It is accepted, because the general average shows unemployment has fallen, that the skills do not exist.

At the very best, this is a stopgap measure in dealing with our skill shortages, which, as I have said, have been caused essentially by the neglect of this government and the way in which they have dealt with the vocational education training system since they were first elected in 1996. Whilst there is a set of requirements governing the way in which temporary visas are to be applied, that is not, in practice, what has been happening. The scrutiny of the way in which companies have been functioning in this field has been very minimal indeed.

Workers have been exploited by dodgy bosses using temporary 457 visas. Senator Lundy, who is in the chamber, identified a number of examples in the restaurant industry in Canberra where workers were being substantially exploited under these visas. Senator Marshall has just identified a number of instances where workers have been exploited under these visas.

There are employers out there who have deliberately set out to use the visas to exploit workers in order to maximise the benefit to them. We have seen, for example, workers who are skilled, but not 100 per cent proficient in English, being brought into this country and employed under pretty horrendous conditions. Consider the case, some time ago, of 20 Korean welders who were basically suckered into working long, long hours for low, low wages. They were told to bring their families with them on the promise of quick approval of permanent residency. The labour hire company that was employing them was receiving $40 an hour for these workers and passing on only $15 of that to the workers.

More importantly, when the company discovered that the workers had discussed this with other workers on site, they had those workers escorted from the workplace. One of the welders was visited early in the morning at home by the labour hire firm’s chief solicitor and told to sign a new contract, the new contract being in English only. No negotiations were entered into, and he was refused a copy of the contract. This is not new. This is an issue we raised with the Employment Advocate. Before the 457 visas came onto the horizon, I raised with the Employment Advocate at estimates that we had situations in this country where migrant workers with limited English were being given AWAs that were drafted by people with university degrees and expected to understand the implications of those agreements and sign them on the basis that they understood them. And here is a similar situation in which a worker under a 457 visa is being exploited in the same way.

Other workers were forced to buy cars on their first day in the country for three times the market value of the vehicle. The employer was not only getting the workers to buy the cars but also making a substantial profit on the deal for himself on the way through. Another worker was promised $72,000 a year but was paid $840 a week for a 56-hour week. Some workers have been forced to work long hours for well below market rates, and some have been forced to live in substandard, rat infested accommodation. There was a case in Queensland in which the Office of Workplace Services engaged solicitors to pursue the union because the union took action to protect the workers. They did see sense eventually and dropped the case because they knew they were in an unwinnable situation.

There is no doubt that these visas have been used and abused for the purpose of importing cheap, exploitable labour. Essentially, whilst these workers are being engaged under the concept of filling skills gaps, the reality is that the vast majority of them coming in under 457 visas are simply being brought in by companies who have not tested the labour market and have not demonstrated that there are practical shortages of the skills in question. It is simply to exploit the availability of the workers and hold down wages in this country.

It is said that the minimum wage for people engaged on 457 visas is $41,000. But that wage is below the market rate, so there are still substantial problems in these areas. Dr Phil Toner of the University of Western Sydney told the Sydney Morning Herald:

Clearly the implication is that though the minimum may be $41,000, any jobs that might have a market rate over that are going to see a downward pressure.

He means downward pressure on wages in those areas. That is the fact of the way this system is operating. He also said that the program is a disincentive to spend money on training and that this exacerbates the existing skills shortages. The reality is that the point of the visas is not to address skills shortages; it is essentially to hold down wages. As I said, the changes in this bill, while welcome, will not address any of those issues.

In respect of the 457 visas, the government does have it within its power to deal harshly with employers who breach the conditions of the 457 visas. What the government has not done is to show the political courage to instruct the department to deal harshly with them. It has allowed these cases to occur and the exploitation to run on. As Senator Marshall pointed out in his contribution, it has essentially only been when these issues have been exposed publicly that the government has sought to do anything about addressing the problem. It has been reactive, slow and reluctant in ensuring that the conditions of these visas are being adhered to.

As I said in my initial comments, the changes to this bill are welcome. They do address gaps in respect of the illegal worker situation. A review of illegal workers in 1999 identified that some 53,000 people were at that time overstaying their visas and living in Australia. The review also painted a picture that some overstayers were finding work. These people were in breach of their visa conditions and, if caught, were subject to punishment under the Migration Act. The big problem with the act was that there was no punishment for the employers who were involved in encouraging these people to take up employment, and that situation continues until today. In 2000 a phone advice line was set up for employers. In 2001 a set of graded sanctions were foreshadowed, and warning notices were implemented some time after that. But, until now, there has been no substantial penalty to be pressed upon employers who have been doing the wrong thing.

Even after this bill passes, it will be six months before employers become liable in terms of those penalties. From 1999 until now, the problem has been clear but the government’s response has been inadequate, as it has been in addressing the problems under 457 visas. The question will be: how long will it be before the government moves to address some of the wrongs that are occurring to employees who have been brought into the country under the 457 visas? (Time expired)