A Senate committee recently conducted an inquiry into how Temporary Work Visa programs in Australia impact our labour market and the visa holders. Their findings and recommendations are set out in a report to be released in mid-March 2016. This article examines the exploitation of Temporary Work (Skilled) (Subclass 457) Visa holders in Australia.

Who are Temporary Work Visa holders?

There are more than 1.8 million Temporary Visa holders in Australia who have a dedicated visa to facilitate their temporary migrant work including:

  • Temporary Work (Skilled) (Subclass 457); and
  • Seasonal Worker (Subclass 416) visas.

This figure also includes those on a temporary visa which has work rights attached including:

  • New Zealand (Subclass 444);
  • Student (Subclasses 570 to 576);
  • Temporary Graduate (Subclass 485); and
  • Working Holiday Maker (417 and 462) visas.

What is the Temporary (Skilled) (Subclass 457) visa?

This visa has two main features including:

  • Allowing skilled workers to come or remain in Australia and work for an approved business for up to four years; and
  • Enabling these businesses to fill short to medium term positions where they are unable to find suitably skilled Australian workers.

Why are 457 visa holders more vulnerable?

The Senate report sets out a number of factors which contribute to the vulnerability of 457 visa holders. These include:

  • Dependence on their employer;
  • There is an inherent power imbalance in the employment relationship because the 457 visa holder is dependent on their sponsoring employer to maintain their employment. This can mean they are less likely to speak out if they are underpaid, denied their entitlements or otherwise treated poorly by their employer.

Limited right of residence

The visa holder is dependent on their employer not only for ongoing employment but also their right to stay in the country, especially in cases where the visa holder is seeking to use this visa as a pathway to permanent residence.

To get permanent residence, the visa holder must stay with their sponsor for a minimum of two years before they are eligible for an employer-sponsored permanent residency visa with that employer. This makes the visa holder more prone to exploitation and less likely to report poor treatment in the workplace for fear of putting their permanent residence at risk.

Limited right to work

The limited right of a visa holder to work can make them more vulnerable if they are employed against workplace law.

For example, if a visa holder is employed in a different or lower job classification than what is stated on their visa, they could have their visa cancelled or commit a criminal offence. This means that disclosing the arrangement can put their visa and permanent residence at risk so they may prefer to continue with their employment rather than disclosing it. The employer then has more power over the visa holder which can leave them open to exploitation.

Access to justice

Visa holders are covered by Australian workplace law but they often face greater difficulty in enforcing their workplace rights and accessing justice compared to permanent residents and citizens. This can be for a number of reasons:

  • The visa holders are in Australia for a shorter period and matters can often take a long time to resolve;
  • The visa holder may be more reluctant to seek recourse because of fears about their visa status;
  • The visa holder may have limited English skills;
  • The visa holder’s residency status is not guaranteed while they are seeking to challenge their dismissal or make a workplace claim; and
  • The visa holder’s remedy for dismissal can be complicated by the subsequent termination of the employer sponsorship arrangement, which requires the visa holder to find another sponsor within ninety days or face removal from Australia.

How are 457 visa holders exploited?

The report sets out several areas of concern for 457 visa holders identified by JobWatch; an employment rights legal centre in Victoria, including:

  • Underpayment and/or non-payment of entitlements;
  • Unfair dismissal;
  • Discrimination;
  • Unreasonable request of workers by employers;
  • Work in contravention of visa conditions;
  • Harassment of workers by employers;
  • Threats of deportation; and
  • Employers are requiring payment for sponsorship.

If you have any questions as an employee or an employer about these issues, get in touch with our Employment Lawyers on 1300 544 755.

Lachlan McKnight

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