What we know about a new visa allowing migrants to stay in Australia to take on bosses who exploit them

by Admin
July 29, 2024

A new visa that was quietly introduced last week is already giving hope to migrant workers who are battling for justice against exploitation, a leading legal advocate says.

If granted, the workplace justice visa (subclass 408) lets a migrant worker without any other legal avenue to stay in Australia, remain in the country for up to 12 months to fight an active workplace claim.

Since it went live on July 24, Human Rights Law Centre’s principal lawyer Sanmati Verma has been busy lodging applications for three stressed migrant workers who have come across her desk.

Among those Ms Verma says she has helped is a woman with a long-running sexual harassment claim against her former employer and company.

She had no other avenue to stay in Australia past August and had been preparing to leave the country in defeat.

“She was in selling-the-fridge stage,” Ms Verma said.

What do we know about the new visa?

The new visa gives the applicant full working rights and is available for between six and 12 months.

Applicants can re-apply for it if they need to.

The federal government has also brought in a protection against visa cancellation when a worker alleges exploitative or abusive behaviour against their employer.

Both the visa and protections are being trialled for two years.

Migrant worker hopes measure will be good for ‘self-respect’

Legal advocates have long despaired that Australia’s visa system tethers migrant workers to their employers.

This makes it difficult for them to speak up when they experience exploitation — such as wage theft, sexual harassment or overwork — out of fear that their visas will be revoked and they will be deported from the country.

This was the experience of Indian-born chef Inderjit Kaur, who came to Australia in 2009 with her husband Dalijit on student visas from Punjab.

In late 2017, Inderjit responded to a Google advertisement for a chef’s position in a restaurant in a regional Victorian town.

She was told they could arrange the crucial 457 visa, where employers sponsor workers to stay in Australia long-term.

The only catch was that Inderjit was asked to work for free while her visa was being processed.

She agreed but did not expect it would take seven months and that over this time she’d be working 20 hours a week unpaid in the restaurant’s kitchen.

Eventually, Indjerit’s 457 visa came through but her employer then asked her to contribute towards the cost of her visa, which is illegal, and to pay back any wages that would be paid to her going forward.

She refused and was fired. She had just 60 days left to find a new employer or her visa would be cancelled.

“I was scared. I followed the rules but I lost my job,” Inderjit said.

Inderjit Kaur is a migrant worker in Australia who took her employer to court for exploitation and won.(ABC News: Emilia Terzon)

Ms Verma, who helped Inderjit with emergency visas to stay in Australia and fight her former employer, believes Inderjit would have been greatly helped by the newly introduced visa protections.

“I feel happy for migrant workers,” Inderjit said of the new protections.

“I hope this announcement will be good for workers’ self-respect.

“Everybody is facing problems but nobody is able to openly speak.”

Inderjit is still in Australia under emergency protections.

After filing a case under the Fair Work act, a judge ruled her former boss at the restaurant had “preyed upon” her “vulnerability in that she was a foreign national who was desperately seeking a 457 visa”.

“The respondents’ underpayment contraventions were deliberate, egregious, and grossly exploitative,” the judge added.

Why were visas introduced?

The new visa protections were pushed through by Andrew Giles, who was dumped as immigration minister on Sunday, after scrutiny over a High Court decision that saw 150 immigration detainees released last year.

Mr Giles said last week that the reforms were about encouraging “migrant workers to speak up if they are exploited at work”.

“These pilot programs form part of ongoing critical and pragmatic reform necessary for addressing migrant worker exploitation,” he said in a statement.

New immigration minister Tony Burke could not be contacted for comment.

Tony Burke took over the immigration portfolio in a reshuffle on Sunday.(ABC News: Matt Roberts)

Various business industry groups, some of which have been agitating about extra pressures on small businesses during the cost-of-living crisis, declined to comment.

The Small Business Association of Australia’s chief executive Anne Nalder told the ABC their body supported any measure to stamp out exploitation.

However, she said the issue went further and that more needed to be done to educate employers and workers about employment law.

“The visa situation is complex and needs an informed conversation,” she said.

“I feel there are too many loopholes of which some take advantage of.”

Meanwhile, the opposition’s spokesperson for immigration, Dan Tehan, questioned whether the new visa could be exploited.

“The Coalition supports action against migrant worker exploitation,” he said in a statement.

“The new immigration minister must ensure this visa is not exploited by people making non-genuine claims to extend their stay in Australia.”

Ms Verma said the new visas were the result of two years of co-design between advocates and the Labor government, and they required support from advocates — such as migrant lawyers — to be lodged.

“It is simply a first step, it is not the complete picture,” she said.

“We really need to look at the way, as a country, we treat migrant workers and how we see them as part of our community.”