If Julia Gillard and her government are serious about stopping the rorts arising from Australia’s migrant worker scheme, then something will be done about the cleaning workers who have not only just lost their jobs but their entitlements too.
The sad truth is that when a business goes bust Australian workers have their leave, unpaid wages and superannuation protected by the government but foreign workers do not. This leaves foreign workers in a precarious position as they not only lose their job but money that is legitimately theirs and which they have earned. This is particularly horrible for minimum wage workers, such as the international students who worked as cleaners for Swan Services in Sydney’s CBD which has just announced it is going into liquidation.
While Gillard’s rhetoric has been about stopping business rorts of 457 visa workers, this is not a case of a business rort but a government rort: a situation where the government has designed the Fair Entitlements Guarantee to exclude foreign workers from protection of their entitlements. As these foreign workers can’t vote and don’t have a strong voice in the public arena this government rort can go undetected. However, these workers through their productive effort contribute to the national economy, they pay Australian taxes and they deserve access to protection of their entitlements just like any other worker. To argue otherwise is just plain unfair.
Even leaving aside the moral argument, it is possible to see a national benefit to enabling foreign workers to receive their unpaid entitlements from the government’s Fair Entitlements Guarantee when an Australian business goes under. This is because international student workers, and in particular, 457 visa workers will be much less likely to see Australia as a desirable employment destination if they are aware of this loophole. Some years ago I provided advice to a German 457 visa worker who possessed specialist technology skills in high demand in Australia. When her company went bankrupt the three Australian workers received their entitlements from the government scheme, but she did not. This situation made her unwilling to consider reapplying for another job in Australia on the 457 visa program.
Until now the Labor government‘s response has been that a foreign worker can pursue a civil remedy to get back their unpaid entitlements. This is somewhat disingenuous given the significant time and expense associated with pursuing civil claims. More importantly, the government’s response conveniently ignores the underlying fact that even if a foreign worker is successful in a court case by proving that entitlements are owed, the worker would still never be repaid the entitlements because of their employer’s insolvency. The ineffectiveness of civil remedies in protecting workers’ entitlements in the event of bankruptcy was precisely one of the reasons that led to the establishment of a government-scheme for protecting Australian workers’ entitlements.
Foreign workers have been a hot topic this election year. Gillard’s western Sydney outing saw her commit to protecting both Australian jobs and foreign workers by stopping the rorts in the 457 visa program. Just last week the Senate’s Legal and Constitutional Affairs Committee considered this very question as part of an inquiry into 457 visas. The cleaning workers from Swan Services may not be able to vote on September 14, and they have even less of a voice than 457 visa workers as they are minimum wage workers, however there is both a moral and economic argument for protecting their entitlements when their employer goes bust.
If the Prime Minister is serious about stopping businesses from exploiting foreign workers, then she will lead from the front and stop this government-rort once and for all.Dr Joanna Howe is a lecturer in the University of Adelaide law school and as a Rhodes Scholar completed her doctorate in labour law at the University of Oxford. Last week she presented evidence to the Senate’s Legal and Constitutional Affairs Committee inquiry into 457 visas. Source: The Age – Foreign workers excluded from the Aussie fair go
- Australia to investigate one million foreign workers in fraud crackdown (craighill.net)
- More than 10,000 temporary work visa frauds in Australia (craighill.net)
- Enforcement the answer to visa rorts: govt (news.smh.com.au)
- 457 visas: ‘System being rorted’ (smh.com.au)
- Visa changes to crack down on rorts (theage.com.au)
- 457 visas: ‘10,000 are rorting system’ (theage.com.au)
- Opposition rejects 457 visa rort claims (news.theage.com.au)
- Brendan O’Connor signals 457 visa changes in effort to crack down on employers (abc.net.au)
- Immigration report finds 457 visas rarely rorted (abc.net.au)
- Rorting of work abuses found to be rare (radionz.co.nz)