Migrant workers’ access to remedy for exploitation in Australia: the role of the national Fair Work Ombudsman

Abstract

Exploitation of temporary migrant workers in Australia has emerged as a significant human rights concern. However, limited attention has been paid to the State's responsibility to ensure individual workers can access remedies for rights violations. This article considers whether Australia's government agencies and institutional frameworks are suitable to enabling remedies for temporary migrant workers, and how well they deliver remedies to individuals in practice. Drawing on new empirical data, it focuses on the role of the national labour inspectorate, the Fair Work Ombudsman (FWO).FWO has undertaken various education, compliance and deterrence initiatives directed to systemically improving conditions for migrant workers. This article considers the extent to which individual migrant workers seek assistance from FWO to recover their personal unpaid wages, and the remedial outcomes of individual claims lodged with the agency.We illuminate structural factors contributing to migrants' reluctance to engage with FWO, as well as factors contributing to low wage recovery rates for those who do contact FWO. We conclude that although these challenges are numerous and multi-layered, they are not all inevitable. Reforms should incorporate a new migrant-centred approach that recalibrates the risks and costs of seeking remedies against the likelihood of obtaining a just outcome.

The Regional Migration-Development Nexus in Australia: What Migration? Whose Development?

“…The implications of WHV failures in combination with poor labor law protection in the horticultural sector have been highlighted elsewhere and combined with calls for visa reform and better rights protection (see f. ex. Farbenblum and Berg, 2017 ; Reilly et al, 2018 , Campbell 2019 ), but the effects of these policies for other locally settling migrants and former refugees need to be much better understood. The discussed findings from three studies of regional migration conducted over the last 10 years, indicate that the question, what development regional migration affords to migrants themselves, deserves more attention in future regional migration policy design.…”

“…Even if pay rates are poor, and backpackers are often subject to unlawful labor conditions including wage theft and even physical and sexual abuse as has been widely reported in the media and scholarship (see f. ex. SBS, 2015 ; Farbenblum and Berg, 2017 ; Mullins, 2019 ) many backpackers stay on to accumulate their 88 work days to secure the entitlement for a second year visa. Here we see a direct relationship between policy regime (requirements to attain extension of visa), regulatory neglect (lack of government action to improve labor conditions for backpackers) and outcomes for this migrant category.…”

Temporary Refugee and Migration Visas in Australia: An Occupational Health and Safety Hazard

“…33,80 Existing inspectorates, such as the Fair Work Ombudsman in Australia, need to be better resourced and empowered to deal with the issues. 4,60 Likewise, temporary visa holders need to be able to make anonymous complaints and, in Australia, made aware that complaints can be made through mechanisms such as the Fair Work Ombudsman. Education for workers and employers in relation to workers' rights, occupational health and safety, and how to identify exploitation and discrimination is also crucial.…”

“…Despite the existence of these rights, temporary workers rarely access them for the reasons discussed above. 4,60…”

Becoming cosmopolitan women while negotiating structurally limited choices: The case of Korean migrant sex workers in Australia

“…These migrant workers are principally employed in the agriculture, construction, cleaning, hospitality, meat works, and manufacturing industries. There have been several studies and widespread media coverage on the exploitation and underpayment of migrant workers, particularly on farms and in the food industry (Clibborn and Wright, 2018; Doherty, 2016; Farbenblum and Berg, 2017; Hatch, 2016). For Korean workers, several instances of exploitation in the Australian agricultural sector have come to light, where many Korean WHM visa holders are eligible to apply for a second 1-year working holiday visa by carrying out specified work in rural Australia for a total period of at least 3 months.…”