Kate Lundy (ACT, Australian Labor Party, Shadow Minister for Sport and Recreation) Share this | Hansard source

Labor has long argued for sanctions for employers when non-visa holders are employed, but we are also pleased to see a focus on sanctions relating to the breaching of visa conditions in the Migration Amendment (Employer Sanctions) Bill 2006. I refer specifically in the bill to point 3 in the list of offences, allowing a non-citizen to work in breach of a visa condition, and also point 7, referring a noncitizen for work in breach of a visa condition. These are very important points and relate to what those visa conditions are. As we have seen with the experience in Canberra of migrant workers on 457 visas, those visa conditions include the payment of the award and meeting occupational health and safety requirements. Putting penalties in place to protect workers against a breach of visa conditions can in fact have the effect of protecting them against underpayment of the award wage.

Following the raising of these problems in this parliament, as I did earlier this year, I pursued the issue with the Minister for Immigration and Multicultural Affairs at Senate estimates. It became clear back then that there was no sanction of any substance under the Migration Act at all. The minister had the capacity to prevent employers found to be exploiting workers in this way from being host employers again, but there was nothing further than that. It was only after pressure from Labor, I believe for many years, that action has finally been taken, albeit now there is some waiting period as well.

At the time, the government appeared to have no choice but to pursue those breaches through the Workplace Relations Act and certainly the Office of Workplace Services was charged with the responsibility to conduct those investigations. In other words, the only way any penalty or disincentive could be pursued on behalf of migrant workers working under a 457 visa was through an investigation and prosecution mounted by the Office of Workplace Services. I am pleased to say that the Office of Workplace Services has followed through with its prosecutions and Federal Court decisions are now pending in two cases of two restaurants here. But, as we know, the only thing Senator Vanstone had to offer under the Migration Act was that these businesses would no longer be permitted as sponsoring businesses for the purposes of employment of 457 visa holders. That was clearly a gap and I think that that has been acknowledged by inclusion of the two points in this bill which I mentioned earlier.

In this bill, the sanctions relate specifically to employers who are in breach of a visa condition. The regulations provided for by the act that I mentioned before do include the payment of the appropriate minimum wage in the award. So, in the future, once this bill comes into effect, DIMA will be able to pursue the prosecutions of employers who employ workers under 457 visas in breach of the award and the standards applying. That is the theory anyway.

I want to reflect on what I presume was a very frustrated minister when it was discovered that visa conditions could effectively be ignored and workers exploited under the auspices of the Migration Act. The Howard government, while they could stop an employer from using the Migration Act, could not recover any payments nor could they sanction an employer in a meaningful way. I think it was quite ungracious of the minister for immigration to reflect poorly on Labor’s role in bringing these matters to her attention because it appears to have had a tangible effect, given these new penalties. I particularly note the aggravated offences where exploitation has occurred. I think that is a reflection and an acknowledgement that exploitation has occurred and that it will be viewed particularly harshly.

Going back to workplace relations, I would also hope that the immigration minister stays on the back of the Minister for Employment and Workplace Relations to ensure that the Office of Workplace Services pursues these breaches in an ongoing fashion. I applaud what I perceive as being enthusiasm on the immigration minister’s part but note the motivation is probably to give the Howard government some political cover on a mismanaged 457 temporary migrant worker visa scheme that is currently, as we know, capable of being ruthlessly rorted at the expense of the rights and wellbeing of temporary migrant workers.

But I do not think that was enough for the minister. I presume that she kept pushing the investigations and they were expanded to cover many other restaurants here as well. It seems to me that the Howard government was seeking even more political cover for the crumbling credibility of the 457 visa scheme under her stewardship. What better way to do this than to demonstrate that it was not just 457 visa holders that were being ripped off but local workers as well? This was quite a brilliant own goal by Senator Vanstone, which I dutifully acknowledged at the time. Senator Vanstone came ripping in here full of personal vitriol against me, saying that heaps of workers have been ripped off and that that was proof that incorrect and illegal payment of wages was not peculiar to temporary migrant workers. As I did then, I thank Senator Vanstone for pushing the Office of Workplace Services to follow through with these investigations. What she has achieved appears to be quite comprehensive. She has demonstrated that, under the Howard government’s industrial relations laws, many workers—and many young workers in hospitality, in particular—have been underpaid over a long period of time. She has demonstrated that this is not peculiar to the plight facing many temporary migrant workers but is affecting local workers as well. This of course is a devastating outcome for those workers who now presumably will have their case followed through and that underpayment repaid.

I noted at the time, when the minister was hastily constructing some political cover for her failure to protect temporary migrant workers from exploitation, that a joint press release with DEWR was issued which sought to reassure the Australian people that the Office of Workplace Services would act on bad practice. I think she has demonstrated that unscrupulous employers are motivated to rip off both local and migrant workers. When bringing these revelations of widespread problems to the parliament through a question from a Liberal colleague in question time, the minister highlighted the absolute folly of the Howard government’s extreme IR changes. She said at the time that unions ought to have done more for these local workers, when it was the unions that brought forward the original complaints, unions that require access to workplaces to represent their members and unions that the Howard government has sought so comprehensively to smash.

I do not believe the Howard government can have it both ways. The fact is that, under this government, employers have felt emboldened to exploit vulnerable workers. The situation in Canberra shows that that does extend beyond vulnerable temporary migrant workers here to help us fill a skills shortage—and there is a genuine shortage of chefs in Canberra and the surrounding region. Employers have felt that they are able to further exploit workers because of the rhetoric and nature of the industrial relations laws that the Howard government has introduced. I think that is a very poor reflection on those changes and is testimony to the necessity of the ongoing campaign of the Labor opposition and the ACTU.

The real test of Senator Vanstone will be whether she now chases the Office of Workplace Services to undertake similar investigations in the hospitality sectors of other cities and whether, when this bill is implemented, she will pursue investigations, prosecutions and penalties for employers found to be breaching and breaking the law in the future. If this level of activity does not continue, that will reinforce the fact that it was mere political expediency to make a lot of noise now and to hope that it all goes away. I do not think it will, for this reason: many people do not realise that, although the government has been happy to publicise the restaurant prosecutions to date, those prosecutions have related to offences prior to the new extreme industrial relations Work Choices legislation being put in place. They in fact relate directly to the industry award in place at the time and, I might say, an industry award that continues.

Since that time, the opportunities for exploitation have worsened and the government has undermined its own ability to use the industry awards as a base to enforce a minimum standard. That ought to give Senator Vanstone something to think about. How on earth do you maintain those minimum standards under a 457 temporary migrant worker visa scheme when there are no minimum standards in place and individual contracts prevail? I do not think both schemes can operate in conjunction without undermining the very intent and capacity for us to successfully utilise the temporary migrant scheme and prevent it being exploited. That is the dilemma facing the Howard government and it is a dilemma that will accompany it until it is kicked out of office at the next federal election.

To recap what I said at the beginning, the most important thing about this bill is that it finally identifies sanctions and penalties for employers who are in breach of visa conditions. There are obviously penalties applying to other aspects as well, such as employers allowing noncitizens to work. None of those have ever been there before. That has, as I said, allowed exploitation to run rife amongst unscrupulous employers and they should have been brought to heel many years ago. It is ridiculous that it is now 2006, the cat is already out of the bag, exploitation is occurring and this government is playing catch-up after many years of chronic neglect. I condemn it for that because it has brought the genuinely needed temporary migrant worker scheme into disrepute and has caused a great deal of conflict and angst amongst many Australian workers and, indeed, for the employers out there who are trying to compete and do the right thing by paying their workers well. How do those employers compete fairly against employers who are undercutting wages and exploiting migrant workers? That is not good for business and it is particularly not good for small business in Australia if those employers doing the right thing are the ones to suffer and have their businesses damaged by the dodgy operators in the Australian market at the time. I commend the bill to the Senate and I look forward to hearing further discussion.

Debate interrupted.