Sarah Hanson-Young (SA, Australian Greens) Share this | Hansard source

The incorporated speech read as follows—

I rise today to speak on the Migration Legislation Amendment (Worker Protection) Bill 2008.

The bill is a welcome move in proving a more robust framework for temporary working visa arrangements, particularly for workers on 457 visas.

457 visas have been a very contentious part of Australia’s broader immigration system. The Australian Greens have always had serious concerns about the scheme while recognising the policy intent behind it.

It is a scheme that needs to balance a genuine need for skilled workers in certain industries and occupations with protection for those workers. There is also a need to ensure the scheme does not provide a disincentive for the provision of training opportunities for workers in Australia.

This is a difficult balancing act. In the past we believe the balance was not met. We along with many others were concerned that 457 visas were becoming the first option for employers, often resulting in workers being exploited.

Bill provisions

The bill before us today is a start in beginning to address some of the problems of 457 visas.

The bill addresses four key areas:

• Expanded powers to monitor and investigate employer non-compliance with the 457 visa scheme;
• A framework for punitive penalties for employers found to be in breach of their obligations
• Improved information sharing between government agencies to improve compliance; and
• A redefined sponsorship obligations framework for employers of 457 visa workers and a range of other temporary work visas

The improved compliance regime, inspectorate powers and information sharing provisions are welcome. It is always the case that the integrity of a scheme such as this depends as much on compliance than on the standards to be complied with.

We support the provision setting out the investigative powers to monitor workplaces and conduct site visits to determine whether employers are complying with the redefined sponsorship obligations and making those powers similar to the powers of workplace, inspectors under the Workplace Relations Act 1996.

We expect sufficient resources will be provided by the Department to ensure that the compliance framework is effective and those sponsors that do try and exploit workers will be discovered and investigated.

We further support the instigation of a civil penalty regime with fines of up to $33 000 as well as the ability to cancel an employer’s approval as a sponsor or bar them from making applications for approval as a sponsor for a period of time. We believe a civil penalty regime is entirely appropriate for the breaching of sponsorship obligations.

Some concern has been raised from the business community about the transitional provisions of the bill extending these measures to existing 457 visa sponsors. The Greens support the transitional provisions and the application of the new compliance regime, powers of inspectors and information sharing laws applying to current sponsors. We also support any new sponsorship obligations made by regulation to apply to current visa sponsors and workers.

Lack of regulations

The main concern we have with this bill is that it provides for sponsorship obligations to be made by regulations but we have not yet had a chance to consider what the Government believes those obligations should be.

It would have been preferable to debate this bill in the context of draft regulations.

I ask the Minister to guarantee that he will release an exposure draft of the regulations, particularly those establishing the sponsorship obligations, before they are finalised.

While the regulations will be disallowable, a disallowance is a blunt instrument for dealing with details and these regulations will be full of details. An exposure draft on the regulations will allow a debate on the details.

I would also like to take this opportunity to draw the Senate’s attention to the United Nations Convention on the Protection of All Migrant Workers and their Families. It is not a Convention Australia has signed but it does lay down the basic rights of migrant workers. Particularly with respect to workers rights issues, we would expect the Government to take the Convention into consideration.

The convention holds that migrant workers should be afforded basic human rights such as not being held in slavery or servitude or be required to perform forced or compulsory labour; that migrant workers have freedom of expression and freedom of religion; that migrant workers shall to be subject to arbitrary or unlawful interference with their privacy or be arbitrarily deprived of property - all pretty non-controversial I would think.

Equally with respect to employment it should be non-controversial to apply these Convention standards - that migrant workers shall be treated equally in respect of remuneration, and other condition of work such as overtime, hours of work, rest breaks, holidays with pay, health and safety and termination of the employment relationship.

The Convention also states that migrant workers have the right to medical care and that the children of migrant workers have the right to access education.

We urge the Government to take into account the Convention and consider a “rights based” approach to protecting temporary workers.

Pacific Islander Seasonal Worker scheme

A rights based approach is particularly important if the seasonal worker program will be covered by this bill in the future.

We are unclear at this stage whether it is the Government’s intention for the seasonal worker program to be governed by this legislation. The framework certainly suggests that it should be, with regulations being able to establish different obligations for different visas, and with the enforcement and compliance regime.

The Greens are not opposed to the trail of a seasonal worker scheme but we are concerned to ensure that the exploitation of 457 workers that has occurred is not repeated again.

Issues with 457 visas

Turning now to some of the issues that have been raised about the 457 visa program:

We agree with the Australian Manufacturing Workers Union when in welcoming more robust regime of obligations, reporting, regulation and enforcement, it also indicated:

“it remains our position that the fundamental issues that must be addressed relate to the reintroduction of labour market testing, mandatory payment of market rates and employment of 457 workers on collective agreements.

We believe that these reforms would remove the motive and capacity of employers to use 457 workers in circumstances other than those where a legitimate skills shortage exists. They would also mediate the inherent vulnerability of 457 workers attributed to the direct link between the employment relationship with a single employer and the right to stay in Australia to work. Failure to address these questions will leave in place the source of the current problems.”

The submissions to the Deegan Review and the Discussion Paper provide a useful summary of the problems encountered by many 457 visa workers and point to issues that the Government needs to address.

Wages and costs

The issue of wages for 457 workers is important for a couple of key reasons. Appropriate wages ensure that migrant workers are not exploited but they also mean that the temporary worker scheme is not used to undermine wages for other workers.

We welcome the increase in the Minimum Salary Level made recently but we question whether the MSL formula is the most appropriate way of dealing with wages. We would like to see a requirement for salaries to be at market rates. The 457 scheme must be about bringing in needed skilled workers, not cheap labour.

The Greens are also inclined to support requirements for sponsors to pay travel costs, costs associated with recruitment migration agent services and registration or licensing fees. We also believe there is a strong case for sponsors to pay for income protection and medical expenses or health insurance for visa holders.

Exploitation

It is not just through low wages that temporary migrant workers can be exploited. There is no question that there have been and are 457 visa workers who have exploited. The trade unions have played an important role in exposing these situations such as appalling accommodation, unjustified deductions from pay, workers doing work they are trained for.

Most significantly we recognise that many 457 workers, especially those working in the semi-skilled jobs, are vulnerable to threats of deportation.

As John Sutton from the CFMEU said at the Senate Inquiry hearing into the bill:

“Wherever there are manual workers coming from a developing country, a poor country, and they are under a sponsorship arrangement where they have the knowledge that, if the sponsorship is terminated, the department will ask them to leave the country in 28 days, there are some pretty powerful forces at work that not in all instances but in many instances lead to pretty serious exploitation.”

Skills/training opportunities

A final important matter I wish to touch on is skills and training. The 457 visa program is specifically designed to allow temporary workers with skills not readily available to employers. The program needs to be carefully directed to areas with genuine skills shortages and to ensure that 457 visas do not become a substitute for local skills development.

While we recognise that no matter how fast we can train people up, some industries will continue to need temporary workers. The engineering profession for example demonstrated the shortage could not readily be made up though local training —we just aren’t graduating enough engineers.

But the government needs to make sure that employers are also investing in the local workforce for long term sustainability. We support obligations on employers to demonstrate a commitment to education and training for the long term.

Similarly, the Greens support a requirement not to use 457 workers as strike breakers. This goes against the intention of the program and could undermine the local workforce exercising their democratic rights.

These are some of the matters we expect the regulations setting out the sponsorship obligations to address.

Conclusion

On a number of the issues I have raised today I wish to seek some clarification from the Minister.

The Greens believe the 457 visa program cannot be an easy or cheap alternative for employers. We support the measures in this bill to improve the integrity of the scheme and in particular the compliance framework.

We would have preferred to have debated this bill having had an opportunity to consider draft regulations. The obligations on sponsors that the regulations will contain are pivotal to the future integrity of the scheme.

The Greens will be considering the regulations carefully and as I mentioned before expect the Minister to provide an exposure draft and open them up to appropriate debate and scrutiny.

Despite the lack of regulations the Greens are prepared to support this bill now given the other elements of the bill relating to a stronger compliance framework will apply to current sponsors of 457 workers.