Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak to the Migration Amendment (Employer Sanctions) Bill 2006. The bill sets out a scheme of sanctions on employers and labour suppliers who knowingly or recklessly engage illegal workers. Labor will support this bill as far as it goes, but the provisions of the bill are seven years late and reek of compromise. The Howard government claims to be concerned about people who seek to work illegally in Australia, but I have my doubts about how genuine that concern is. Despite the supposed concern we hear at election time, the government’s own stated current estimate is that there are around 46,000 visa overstayers in Australia on any given day. After 10 long years of Howard government blather about border security, this admission proves our borders are more porous than ever. So much for, ‘We will decide who comes to this country and the circumstances in which they are here.’

We all know that hollow rhetoric only applies to a handful of terrified people who occasionally venture here in rickety boats, not the illegal workers who fly here to steal Australian jobs and undermine Australian working conditions each and every day. The Howard government proudly boasts about stopping people who come here by boat, but we all know that the biggest threats to Australia’s border security fly into this country—and they steal jobs. How else would these visa overstayers be able to finance their stay unless they were picking up cash work from bosses who turn a blind eye?

The Howard government’s approach to date in dealing with the problem of illegal workers in Australia has been to busy itself, ignoring reports that it has commissioned. The 2000 edition of the Department of Immigration and Multicultural Affairs’ report on immigration compliance offers an insight into just how irresponsible the Howard government has been in the vital task of protecting Australia’s borders. Chapter 9 of the report relates to the problems of illegal work in Australia. The report says that, during 1999-2000, 2,519 people were found to be working illegally in Australia by department compliance staff. The report also says:

The Minister launched the report of the Review of Illegal Workers in Australia in December 1999. The recommendations included:

- a system of sanctions for those employers and labour suppliers who recruit or refer for employment people without the right to work in Australia, underpinned by a system of administrative warnings.

Here we have a report that is six years old—before Tampa and all the Howard government’s crocodile tears about deciding ‘who comes to this country and the circumstances in which they come’—talking about the review that the minister had launched a year earlier.

Just so we are clear: seven long years ago, the Howard government launched a review that recommended that they introduce a system of sanctions for bosses who employ people who have no right to work in Australia, and they have only now gotten around to bringing the matter before the Senate. Yet the slack clowns have the hide to bang on about how responsible they are with Australia’s border security. The Howard government has not just been slack and incompetent in getting this bill to the Senate; they have managed to make a dog’s breakfast of the bill’s content.

Honourable senators will recall that the report of the review of illegal workers in Australia recommended seven long years ago that the Howard government implement:

a system of sanctions for those employers and labour suppliers who recruit—

and the wording is important: employers ‘who recruit’—

people without the right to work in Australia.

The Howard government was left to fill in the details of the circumstances in which an employer who recruits people without the right to work in Australia will be liable for sanctions and the obligations required of employers to take responsible, reasonable steps to look into the right to work of people they recruit. After seven long years, the Howard government has come up with a bill that proposes that offences will only apply where the employer or labour supplier knew the person was an illegal worker or was reckless to that fact.

That is quite different from the approach that has been taken in other countries. It is a weak and gutless approach. It is an approach that is born of a desire to appease crooks. Countries such as Switzerland and Canada have already introduced measures where the threshold test to prosecute bosses who employ illegal workers is merely acting negligently or failing to exercise due diligence in checking work rights. This is a much lower threshold test to ‘knowingly or recklessly’, the one the Howard government has decided to use in this bill. It does not take a genius to work out that with this bill the Howard government is bending over backwards to make it virtually impossible for dodgy bosses who turn a blind eye to illegal workers in order to lower their wage costs to be actually convicted. That is the way of the Howard government: the velvet glove for dodgy bosses and jackboots for workers.

I invite senators to compare the Howard government’s approach to dealing with workers in past bills with the way they deal with bosses in this bill. The Howard government are only too happy to guillotine debate to ram through legislation to impose $30,000 fines on Australian workers who withdraw their labour for one day, but they take seven long years to get around to legislation imposing $13,000 fines on bosses who recklessly employ illegal workers. The Howard government are all too happy to give the Australian Building and Construction Commissioner outrageously undemocratic powers to pursue workers and their representatives. The Howard government legislated to give the commissioner the power to compel workers and union officials to answer questions in an interrogation without the right to silence or protection from self-incrimination under sufferance of six months imprisonment. Six months jail for refusing to dob on your mates but a slap on the wrist for the crooked practices of dodgy bosses in the horticultural industry, for example. That is a clear indication of this government’s priorities and they should be ashamed. Labor will support the bill as it is a small, albeit flawed, step towards dealing with the problem of illegal work in Australia—even if it has taken the Howard government seven long years to get around to it.

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

It is certainly a pleasure to follow my colleague Senator Sterle in this debate today and to carry on comments that Senator Sterle was making quite forcefully about the nature of the Migration Amendment (Employer Sanctions) Bill 2006 and the lack of effort by the federal government until this point now, seven years after it was reviewed. You would have to think that the government is starting to get a little delusional at the moment. I have been trying to look on the web today to see the comments by Mr Hardgrave—and I am not quite sure what ministerial title he holds. I gather that at the moment one of the answers to our skills crisis in Australia is to train Africans in their detention camps, or whatever they are called, in Kenya and to bring them over here. I want to talk about that a little later but I think that it indicates the two difficulties that the Howard government has had before it for some seven years and is still grappling with.

Firstly, we are undoubtedly experiencing a skills crisis and we are undoubtedly—as I will mention shortly—experiencing a crisis with the lack of employment and career opportunities particularly for young people. Secondly, as this legislation puts forward, we are now dealing with the crisis that has been exposed for some time of the exploitation of so-called ‘skilled guest workers’. As my Labor colleagues have said, Labor does support the bill and does support the sanctions contained in the bill for employers who knowingly or recklessly employ or refer for work unlawful noncitizens or noncitizens in breach of visa conditions.

As Senator Sterle articulately outlined, this issue has been before the federal government for seven years and it is only lately that the government has decided to respond to the Review of illegal workers in Australia: improving immigration compliance in the workplace. That report found significant problems with the number of illegal workers in Australia, the subsequent denial of jobs to Australians and the loss of revenue through uncollected tax and falsely claimed social security benefits. This was reported to the Commonwealth government seven years ago, but here we are in September 2006 finally dealing with this issue. We still have not dealt with the issue of the lack of a skilled workforce available amongst Australian citizens.

Under the previous regime that will no longer apply once this bill is carried, the penalties for illegal employment were weighted heavily against the worker. They were liable under section 235 of the Migration Act. However, for the employer there were no relevant primary offences and the fines under both the Migration Act and the Criminal Code did not exceed $10,000.

Under the new provisions in this bill, employers found in breach can face imprisonment of between two and five years for allowing an unlawful noncitizen to work or a noncitizen to work in breach of a visa condition. This bill fixes a discrepancy in the seriousness of the punishment applicable to both employees and employers. It recognises the culpability of employers who allow people to work for them who would otherwise not be permitted to do so under the law. The second message it sends is to unscrupulous employers who seek to profit from cheap, illegal labour: obey the law and cease your exploitation of illegal workers.

There are substantial numbers of visa overstayers in Australia—46,000 as of December 2005—and they are potentially in the workforce and earning money without paying taxes. We on this side call on the government to follow through on these measures with inspections so that employers using illegal labour are suitably identified and punished. There is a justifiable expectation from the Australian community that these employers will be prosecuted. However, this government has a record of indifference towards the exploitation of workers under the Australian visa system.

We saw only this week the case of ABC Tissues, which employed 50 Chinese workers on 457 visas. They were found to be unskilled in the jobs they were brought here to do. They could not read or understand the English safety signs, were unaware of safe work practices and did not have licences to operate the machinery on the site. I hope it does not disturb the government that, if these Chinese workers came from western China, they are more likely to be Muslims! I do not know if that is disturbing enough for the Commonwealth government to get off its bum and get around to doing something.

We are in the grip of a skills crisis, and that is the reason we have to import skilled workers from overseas, despite the exploitation that they are liable to experience, under the 457 visa system. It is expected that some 40,000 457 visas will be granted this year. That number has increased over the last four years by 66 per cent. On the department of immigration website, the description for the 457 visa says:

This visa is for employers who would like to employ overseas workers to fill nominated skilled positions in Australia.

I feel very sorry for those men and women who have been brought to Australia under bodgie schemes, under schemes that have been misleading. We have had plenty of instances of exploitation of such people, particularly of women in the sex industry. In fact, when I was on the Parliamentary Joint Committee on the Australian Crime Commission, chaired by Bruce Baird, we were involved in an inquiry into just this issue, and we saw there was exploitation of women in particular in this area. But we are still receiving evidence of the exploitation of men and women in relation to these so-called skilled migration schemes and have received some only recently.

I have been advised that there is a Bankstown company that tried to deport a father of two after his fingers were chopped off in its workshop. Workers Online reports:

… a 46-year-old Korean says the employer refused to call an ambulance after four of his fingers were hacked off at work.

This man said:

… he didn’t believe his employer had workers compensation cover, required by law.

He admitted he was working in Australia illegally, but his predicament has sparked calls from a number of people for rogue employers to face sanctions as set out in this legislation. The man said:

… he lived inside the Bankstown factory where he was required to labour for up to 120 hours a week. He said, for two years, he was paid a flat rate of $10 an hour, with no holidays, sick leave, or super.

As I said earlier, his fingers were chopped off on 19 May this year. This man is desperate.

Only in today’s newspaper we have reports about a Melbourne printing company called Aprint, which hired four Chinese labourers on 457 visas. The Age reports that the company paid them below the minimum wage, did not pay any overtime and made $10,000 of arbitrary deductions from their pay. One man, Jack Zhang, was sacked as soon as the $10,000 was fully deducted from his pay. That was at a rate of $200 a week for 50 weeks. Mr Zhang had a four-year contract. The money was paid to the company’s owner, Dor Tu, who claimed it was for legal fees and travel. This money is on top of the $10,000 Mr Zhang paid in China before he entered Australia. Mr Zhang was also found to have been working 60 hours a week. His weekly pay for ordinary hours was $751.92, which places his hourly rate at around $12.50—below the minimum rate of $12.75. He was also paid a flat rate of $12 an hour for overtime when he should have been paid double time. The AMWU, the union that brought this to the newspaper’s attention, estimates this gentleman was underpaid by about $388 a week compared to the award rate. Mr Zhang must now find another sponsor to hire him or he will have to leave Australia in 28 days.

This is an example of what has been able to occur under the manipulation of the visa scheme. That is why this legislation is welcome. But it is seven years too late for people like the man in the Bankstown factory, people like Mr Zhang or the exploited women in the sex industry throughout Australia. In our country we are seeing Australian workers being denied these work opportunities and appropriate skills training. Why is the government’s solution to the skills crisis to import labour?

This morning, as I said, we heard a suggestion from Mr Hardgrave—I think he is the minister for employment services; I am sure a coalition member will correct me if not, if he or she gets up later. Mr Hardgrave has suggested that the Commonwealth government would build TAFE colleges in Kenya—I think that is correct—for people who are waiting in camps there, and in other places in Africa. I think he only started with Kenya; he might move on, but Kenya is the first place. How ridiculous is that? How ridiculous is it, Madam Acting Deputy President Troeth, for you, a senator who comes from a manufacturing state, Victoria, to stand by and see your coalition colleagues advocate a proposal like that? A Queenslander, I think Mr Hardgrave is; is he a Queenslander? I do not know. He should hang his head in shame. It goes to show just how out of whack Queensland people are when they vote for the coalition.

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

Senator Hutchins, I think you will find that Mr Hardgrave is a Queensland member, the member for Moreton, and he is also the Minister for Vocational and Technical Education.

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Thank you very much, Madam Acting Deputy President. The point I want to make is that, since the coalition has been in power, 300,000 young Australians have been turned away from TAFE colleges. No funding has been made available for that. Three hundred thousand—that is, 30,000 a year—since John Howard has been in power. What is the government’s answer to this debilitating skills crisis? It builds colleges in East Africa or South Africa. I have no problem with that and I do not make a racist comment about it, but it just strikes me as strange that we have the money to build these TAFE colleges in other parts of the world but we deny them to our own people.

Let me go to the government’s record on skills investment. It is, as I said, appalling. Australia is the only advanced economy that has gone backwards on education spending since 1995. Spending has been cut by eight per cent. The average in OECD countries has been to increase education spending by 38 per cent. Ten years of John Howard’s government has had the effect of deskilling this country. By 2010, it has been estimated that Australia will fall short of tradespeople by 100,000. The government makes much of the unemployment rate, but, significantly, there are two million Australians who want to work, or want more work, but cannot get it. What this points to is the skills base failing to correspond to the demands of industry, causing a generation of Australians to sit idle—untrained, unskilled and ignored by the Howard government.

At the last sitting of parliament, I made a contribution concerning the loss of jobs in regional New South Wales. I mentioned the jobs that are being lost at the Central Coast, the central west of New South Wales, Western Sydney and the Illawarra. I mentioned that there are hundreds of jobs being lost. Those people would welcome the opportunity to retrain or reskill, but what is the government’s contribution to them? They are indeed making available to some sections and to some of these men and women an ability to get more redundancy pay. Big deal. That can last for only so long. They would say: ‘Why can’t I work in a job where there is a demand for that skill? Why are you trying to continue to bring people in from overseas? Why are you building TAFE colleges in East Africa when you should be doing it here for Australians?’ The second part about that, as we all know, is that it is meant to put downward pressure on wages. We saw evidence outlined in today’s paper by the Australian metalworkers union. They have outlined exactly how much less a man earned in a week by working under those conditions. We cannot compete with our neighbours. We are a First World country, but without an investment in skills we cannot be competitive.

On Tuesday, in the Sydney Morning Herald, Bob Birrell, the Director of the Centre for Population and Urban Research at Monash University, said:

There are plenty of skilled workers in the Philippines, China, India and elsewhere willing to work for wages and conditions well below the market rate in Australia.

Australian workers are increasingly having the odds stacked against them under the coalition. Work Choices strips away overtime, leave loading and leave entitlements. It exposes workers to instant dismissal without recourse for appeal. To add insult to injury, the coalition are making it easier to import cheap overseas labour that does not even meet the skills criteria in some cases. Those people can enter the workforce for up to four years on a 457 visa, and that places downward pressure on wages.

Australian workers do not want charity; they want a fair go. They want a government that is looking after them. I started my contribution by saying that I think that the government is becoming delusional. If they really think that putting money into TAFE colleges in East Africa is going to go well out there in the electorate, they are becoming delusional. It will be up to people like you, Madam Acting Deputy President Troeth—from Victoria, the primary manufacturing state in this country—to change the direction of this government or they will be out on their bum at the next election.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to 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.

George Campbell (NSW, Australian Labor Party) Share this | Link to 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)

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I welcome the support for the Migration Amendment (Employer Sanctions) Bill 2006 that members of the opposition have indicated. I will deal with one or two of the issues which have been raised in the second reading debate. This bill, as senators know, addresses the government’s long-held concerns about those who seek to work illegally in Australia. Illegal work causes a number of problems for the Australian community. It takes job opportunities away from Australian citizens and lawful migrants and that was a point a number of senators made in their remarks.

The cost of detecting illegal workers, of course, is an unwelcome burden on the taxpayer. Very importantly, some illegal work is linked to organised crime, particularly in the sex industry. The trafficking of people, particularly women and children, is a despicable crime. The government is determined to deal with anyone who knowingly participates in this kind of criminal activity, including employers who seek to exploit the victims of trafficking. Despite the continued success of our immigration compliance activities, the government believes that additional statutory reforms are required. Experience has shown that there must be some method of imposing sanctions on the small number—and I think it is a small number—of employers and labour suppliers who deliberately engage or refer illegal workers.

The bill introduces fault based criminal offences. The proposed offences will only be committed where the employer or labour supplier knew the person was an illegal worker or was reckless as to that fact. This ensures that the focus is on the employers and labour suppliers who are of concern to the government without imposing any additional burden on businesses generally. This bill introduces high penalties for offences where aggravating circumstances are present. These circumstances arise where the illegal worker is being exploited through forced labour, slavery or indeed sexual servitude.

Turning to one of the key points raised during the debate, a number of senators have also suggested that not enough is being done to prevent 457 visa holders from being exploited. Senator George Campbell, in his remarks, made this particular point. The point to note is that the offences in this bill will help to reinforce existing sanctions arrangements and that is clearly one of the reasons that this bill is enjoying support in the Senate. For example, where an employer moves a 457 visa holder into a low-skilled or semiskilled position the offence in clause 245AC of allowing a noncitizen to work in breach of their visa conditions may be committed.

In summary, we believe this bill addresses some very serious issues in Australian society. However, we think it strikes the right balance by ensuring that only those employers and labour suppliers who are of genuine concern to the Australian people will be caught by these offences. I urge the Senate to allow a speedy passage of this bill.

Question agreed to.

Bill read a second time.