‘No bird in a cage ever speaks. What is there to say? The sky is everywhere, churning above its head, blue and endless, calling out to it. But the caged bird can’t answer anything except “I cannot”.’[1]

– Sonya Hartnett

I INTRODUCTION – TAKING FLIGHT

Entrapment.

Fear.

Isolation.

The caged bird struggles under the burden of these emotions, yearning for relief from his desolate plight. The wiry walls of his cage shield him from a world vast and unknown to him, but one that his soul desires with fervent passion. Unable to spread his wings, he sings of freedom, his voice piercing the night as he mourns the loss of a life he has never tasted. He serenades the world with a beautiful lament, hoping someone will stop to listen and understand his grief. Yet as his voice crescendos, the howling wind drowns him out and eventually he quietens, his voice hoarse.

Why sing if no one will listen?

The caged bird’s aspirations to explore an unventured world dwells deep within the souls of countless humans around Earth. The experiences of numerous people globally are not so disparate from the predicament of the caged bird. One day we may wake up and find our homes being swept away by torrential floods, leaving us destitute. Others fall asleep to the crack of guns and the boom of explosions in the distance, and wonder whether they will be the next victim of a war they cannot control. Day by day, so many of us work ourselves to exhaustion to provide a roof above our heads and food on our plates - the bare minimum to live. Much like the caged bird, many humans feel trapped by their surrounding circumstances.

Life presents us with many challenges. We survive through them. We repair what has been destroyed, heal what must be mended. Yet often, these challenges awaken hidden desires within us. We relish in the premise of a new start. And so, many of us pursue change, and exchange the lives of our past for a nebulous, yet exciting future.

This experience is common to migrant workers who come to Australia for a better future. With hopeful hearts, they arrive to gain an improved quality of life and seek job opportunities with decent working conditions.

Their expectations could not be further removed from the reality of their situation.

II FROM ONE CAGE TO ANOTHER – THE EXPLOITATION OF MIGRANT WORKERS

Australia is a place where dreams morph into nightmares for migrant workers. Aspirations for a better life deteriorate rapidly as migrant workers encounter poor working conditions and wage underpayment and theft. Abuse and discrimination is rife in workplaces, leading to many workers feeling unsafe at work.

Wage underpayment and theft is a pervasive problem affecting migrant workers. Up to 16% of migrant workers are paid below the minimum wage, while contrastingly, up to 9% of all Australian workers are underpaid.[2] It is essential to note that statistical figures are not a holistic guide of the proportion of migrant workers underpaid. True figures of wage underpayment are likely to be significantly higher, as some forms of exploitation may not be captured by the Australian Bureau of Statistics (‘ABS’) data.[3] Furthermore, migrant worker exploitation is mostly a hidden crime. This increases the difficulty of gauging the true extent of the issue across Australia.[4]

Cases of migrant worker exploitation can range from wage underpayment to more severe exploitation and modern slavery.[5] Although substandard working conditions and wage underpayment do not constitute modern slavery, they may indicate that an individual may be heading towards living in a state of modern slavery.[6]

A Visa System

A key systemic factor impacting wage underpayment derives from the visa system enabling workers to migrate to Australia. In particular, the type of visa through which migrant workers come to Australia significantly impacts their treatment in the workforce. A survey of 700 migrant workers conducted by the Migrant Workers Centre in 2021 found that 65% of temporary visa holders in Australia faced wage underpayment.[7] 91% of migrant workers who were found to be underpaid were on temporary visas with no means of obtaining permanent residency.[8] The results provide a strong indication that migrant workers on temporary visas are substantially exploited by employers.

Several other factors, such as age and industry, contribute to the disproportionate underpayment of migrant workers. Most migrant workers tend to be of a younger age, which affects the amount they are paid. A study conducted by the Grattan Institute found that workers in the 20–29 age group were approximately six times more likely to be underpaid than workers in the 30–39 age group.[9] Additionally, many migrant workers work in industries where wage underpayment is prevalent, such as hospitality and horticulture.[10] The ethnicity and gender of migrant workers may also impact the wages they receive. These subsidiary factors may further hinder migrant workers from speaking up and taking action against the abuse and exploitation they face, especially if they are on a temporary visa.

B Workplace Rights Awareness

A lack of awareness of workplace rights, compounded with language barriers, prevent migrant workers from taking action against exploitation. In Australia, work, health and safety laws apply to all workers, regardless of their visa status.[11] However, many migrant workers are unaware of their rights, or do not take action due to fear of facing repercussions for breaching their visa conditions, which could result in visa cancellation.[12] This fear is heightened for migrant workers who obtained visas via migration agents rorting the visa system.[13] These workers are especially vulnerable to facing exploitation, and in serious cases, may become victims of human trafficking.[14]

Current systems to protect migrant workers are not often utilised. The Assurance Protocol, an arrangement between the Department of Home Affairs and the Fair Work Ombudsman which aims to protect workers from workplace exploitation, has only been invoked 79 times since it was first introduced in 2019.[15] The lack of usage of the Protocol indicates that migrant workers are unassured that this system will adequately protect their rights. Further, although trade union memberships may assist workers in securing higher pay and stronger wage growth, in 2022, union membership in Australia was at its lowest level in 40 years at 12.5%.[16] Moreover, only few migrant workers hold union memberships, which gives them less bargaining power with employers.[17]

Migrant workers are essential to the Australian economy, with temporary migrants constituting 7% of Australia’s labour force.[18] Yet research indicates that recent migrants arriving in Australia are 40% more likely to face wage underpayment compared to long-term Australian residents.[19] Employers often normalise the exploitative conditions migrant workers face.[20] With net migration projected to rise to 650,000 over 2023 and 2024, it is imperative to address the systemic issues pervading Australia’s migration system immediately.[21] As the inflow of migrant workers increases, the systemic problems impeding better working standards and conditions for migrant workers must be unrooted.

III SPREAD YOUR WINGS

Migrant workers may seek protection via several bodies, such as the Fair Work Ombudsman via the Assurance Protocol and the Australian Human Rights Commission. However, current statistics emphasise that these measures are not being used to their maximum potential. Increased reform and awareness is critical for migrant workers and their lawyers to trust current systems and those being implemented to take action against employers.

In 2019, the Migrant Workers Taskforce released a report detailing 22 recommendations to help mitigate the issue of exploitation for migrant workers.[22] The Albanese government has pledged that they will implement all recommendations made in the report.[23]

On 22 June 2023, the Labor government introduced the Migration Amendment (Strengthening Employer Compliance) Bill 2023 into the House of Representatives.[24] If passed, the Bill will amend the Migration Act 1958 (Cth) to criminalise coercing of workers to breach their visa conditions.[25] The Bill also employs prohibition notices to prevent employers with previous records of workplace exploitation from hiring workers on temporary visas.[26] In addition, penalties and new compliance tools will increase to have a deterrent effect on exploitation.[27] The Bill also proposes to repeal s 235 of the Migration Act 1958, which discourages workers from reporting exploitation.

The government has asserted that the Bill responds to recommendations 19 and 20 from the Migrant Workers Taskforce Report.[28] Although the Bill is a positive step towards reducing migrant worker exploitation, it is important for legislative changes to target the systemic roots of the issue. Migrant workers suffer in silence, fearing the repercussions they may face by speaking up. To counter this, whistleblower protections are crucial for migrant workers to speak out freely against employers.

The Migrant Justice Institute has proposed developing a visa which may enable migrant workers to stay in Australia while pursuing action against employers, thus ensuring visa security and the right to continuing working.[29] The assurance of visa security may build greater trust between migrant workers and the government. Improving existing protocols may also help migrant workers take action against various kinds of exploitation.[30] The Australian government is considering strengthening the Assurance Protocol, which may be expanded to protect workers against discrimination, as well as workplace exploitation. This may increase pathways through which migrant workers can take action against employers. Migrants must also be provided with greater awareness that these pathways for justice exist.

In the end, tides of change can only sweep over the nation through the voices of migrant workers. Migrant workers must trust the processes being enacted and be confident to speak out against the exploitation they encounter. Worker exploitation is a problem that has been ignored for too long, and has festered with little means of control as a result. Above all, we must listen to what migrant workers have to say, and act accordingly. One person speaking up may seem insignificant, but their power should not be underestimated.

Our voices have wings. Let them fly.

[1] Sonya Hartnett, The Midnight Zoo (Viking Penguin, 2010).

[2] Grattan Institute, Short-changed: How to Stop the Exploitation of Migrant Workers in Australia (Report, May 2023) 3.

[3] Biwa Khan, ‘Tens of Thousands of These Workers Are Exploited. Could This Plan Put an End to It?’, Special Broadcasting Service News (online, 24 May 2023) <https://www.sbs.com.au/news/article/tens-of-thousands-of-these-workers-are-exploited-could-this-plan-put-an-end-to-it/ht1kc8ut2>.

[4] Bang Xiao, ‘Hidden in Plain Sight’, Australian Broadcasting Corporation (online, 18 December 2021) <https://www.abc.net.au/news/2021-12-18/visa-temporary-modern-slavery-new-australian-immigration/100645446>.

[5] Ibid.

[6] Addressing Modern Slavery in Government Supply Chains (Report, July 2020) 2.

[7] Emma Field, ‘Australia Relies on Migrants to Fill Job Shortages but Many Are Exploited, Survey Reveals’, Australian Broadcasting Corporation (online, 1 December 2021) <https://www.abc.net.au/news/rural/2021-12-01/migrant-visa-study/100661266>.

[8] Ibid.

[9]Brendan Coates, Trent Wiltshire and Tyler Reysenbach, ‘Up to 1 in 6 Recent Migrants Get Less than the Minimum Wage. Here’s Why’, The Conversation (online, 23 May 2023) <https://theconversation.com/up-to-1-in-6-recent-migrants-get-less-than-the-minimum-wage-heres-why-206067>.

[10] Ibid; Unions NSW, Wage Theft: The Shadow Market Empowering Migrant Workers to Enforce their Rights (Report, December 2022) 10.

[11] ‘Migrant Workers’, Safe Work Australia (Web Page) <https://www.safeworkaustralia.gov.au/safety-topic/managing-health-and-safety/migrant-workers>.

[12] Xiao (n 4).

[13] Nick McKenzie, Amelia Ballinger, and Wing Kuang, ‘It’s easy’: Migration Agents Offering Fake Visas for $500 a Month’, The Age (online, 13 October 2022) <https://www.theage.com.au/politics/federal/it-s-easy-migration-agents-offering-fake-visas-for-500-a-month-20221018-p5bqng.html>.

[14] Ibid.

[15] Andrew Giles, ‘Tackling Temporary Worker Exploitation’ (Speech, Solidarity Hall, Victorian Trades Hall, 5 June 2023) <https://minister.homeaffairs.gov.au/AndrewGiles/Pages/tackling-temporary-worker-exploitation-05062023.aspx>.

[16] Greg Jericho, ‘Hollywood Actors Know Strength Comes From Unity. Australian Workers, Can I Get an ‘Amen’?’, The Guardian (online, 20 July 2023) <https://www.theguardian.com/business/grogonomics/2023/jul/20/actors-writers-strike-union-hollywood-australia-wages-industrial-action-workers>.

[17] Rhiana Whitson, ‘Senate Inquiry Calls for Laws to Stamp Out ‘Systemic, Sustained and Shameful’ Wage Theft’, Australian Broadcasting Corporation (online, 30 March 2022) <https://www.abc.net.au/news/2022-03-30/brt-wage-theft-inquiry-report/100952990>.

[18] Will Mackey, Brendan Coates and Henry Sherrell, Migrants in the Australian Workforce: A Guidebook for Policy Makers (Grattan Institute Guidebook No 2022-6, May 2022), 3.

[19] Tom McIlroy and Michael Read, ‘Underpayment Rife, with Recent Migrants 40pc More Likely to Be Exploited’, The Australian Financial Review (online, 23 May 2023) <https://www.afr.com/politics/federal/underpayment-rife-with-recent-migrants-40pc-more-likely-to-be-exploited-20230522-p5daf7>.

[20] Whitson (n 17).

[21] Tom McIlroy and Michael Read, ‘Migration system overhaul to save budget billions’, The Australian Financial Review (online, 14 April 2023) <https://www.afr.com/politics/federal/migration-system-overhaul-to-save-budget-billions-20230414-p5d0fo>.

[22] Australian Government, Report of the Migrant Workers’ Taskforce (Report, March 2019).

[23] Minister for Home Affairs, ‘Exploitative Employers on Notice: New Legislation Introduced by Albanese Government’ (Media Release, 22 June 2023) <https://minister.homeaffairs.gov.au/ClareONeil/Pages/exploitative-employers-notice-new-legislation-introduced-albanese-government.aspx> (‘Migration Amendment Bill Media Release’); see also Grattan Institute (n 2).

[24] Minister for Home Affairs, ‘Exploitative employers on notice: New legislation introduced by Albanese Government’ (Media Release, 22 June 2023) <https://minister.homeaffairs.gov.au/ClareONeil/Pages/exploitative-employers-notice-new-legislation-introduced-albanese-government.aspx>.

[25] Migration Amendment Bill Media Release (n 23); Migration Amendment (Strengthening Employer Compliance) Bill 2023 (Cth) pt 1.

[26] Migration Amendment (Strengthening Employer Compliance) Bill 2023 (Cth) pt 2.

[27] Ibid pts 3-5.

[28] Senate Standing Committees on Legal and Constitutional Affairs, ‘Labor Senators’ Additional Comments’ (Additional Comments, 2023) <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/MigrantWorkers/Report/Section?id=committees%2Freportsen%2F024865%2F79464>.

[29] ‘Organisations and Unions Across Australia Call for Whistleblower Protections for Migrant Workers’, Migrant Justice Institute (Web Page, 28 February 2023) <https://www.migrantjustice.org/highlights/highlights/2023/2/27/breaking-the-silence-whistleblower-protections-to-enable-migrant-workers-to-address-exploitation>.

[30] Brendan Coates, Trent Wiltshire and Tyler Reysenbach, ‘Do More to Protect Migrant Workers’, Grattan Institute (online, 6 June 2023) <https://grattan.edu.au/news/do-more-to-protect-migrant-workers/>.