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Monday, 26 November 2012
Page: 13321


Mr KELVIN THOMSON (Wills) (16:42): The bill implements the government's response to the independent report of the 2010 review of the Migration Amendment (Employer Sanctions) Act 2007, conducted by Mr Stephen Howells. In 1999, the Howard government was presented with the results of a review into illegal work in Australia which concluded that the extent of illegal work in Australia was a significant problem and that measures in place at the time were insufficient to address the problem. The 1999 report recommended the adoption of a range of employer sanctions. Critically, the report recommended sanctions which encompassed both fault based offences with criminal penalties and strict liability offences with civil penalties as well as infringement notices. Unfortunately, the Howard government failed to act on these recommendations. It was not until 2007 that it belatedly introduced legislation which provided for criminal sanctions.

The 2010 review of these measures, conducted by the barrister Stephen Howells, found that the existing Howard government sanctions were wholly ineffective. These measure have not provided a practical mechanism to instil in businesses the need to comply, nor acted as a deterrent to illegal work hire practices. Illegal work hire practices undermine the integrity of Australia's migration program and can result in the exploitation of vulnerable workers. Such conduct may also put at a disadvantage those businesses that only engage workers who are entitled to work and it reduces work opportunities for Australian citizens.

The Howells review recommended implementation of the 1999 scheme, with a little modification, including graduated tiers of education, warnings, infringement notices, non-fault civil penalties and criminal offences. This is intended to encourage voluntary compliance by businesses, and when this does not occur, provide effective sanctions. The amendment in this bill will amend the criminal offences and create new non-fault civil penalty provisions for persons who: firstly, allow an unlawful non-citizen to work; secondly, refer an unlawful non-citizen to a third person for work; thirdly, allow a lawful non-citizen to work in breach of a work related visa condition; and finally, or refer a lawful non-citizen to a third person for work in breach of a work related visa condition. The Howells report provided a compelling analysis and critique of the effectiveness of the current framework for dealing with the problem of illegal work. It concluded that the prevalence of illegal work had increased markedly since the 1999 review, with potentially more than 100,000 workers currently being employed without valid work rights. This bill allows the government to crack down on employers who hire illegal workers by setting out a range of civil and criminal penalties. The graduated system of sanctions will operate as a last resort and should only be of concern to those employers who seeks to circumvent the law. The legislation's key amendments include: amending the criminal offences and creating new, non-fault civil penalty provisions and an infringement notice scheme for people who allow or refer an unlawful noncitizen to work, or allow or refer a lawful noncitizen to work in breach of a work related condition; creating statutory defences where reasonable steps are taken at reasonable times to verify a foreign national worker's entitlement to work; broadening the application of criminal offences and civil penalty provisions to hold a person liable for participating in an arrangement or series of arrangements that result in a foreign national working without lawful entitlement; extending both criminal and civil liability, in certain circumstances, to executive officers of bodies corporate, partners in a partnership and members of an unincorporated association's committee of management; and creating search warrant and notice to produce powers specifically to facilitate the investigation of suspected breaches of these offences and civil penalties.

In order to address the illegal practices of sham contracting, informal labour hire and use of illegal workers by various entities within a conglomerate, the application of the criminal offences and civil penalty provisions will be broadened so that a person who participates in the chain of events that results in a noncitizen being allowed or referred to work without the required permission can be held liable for contravening work related offences and work related provisions. In addition, the bill will extend both criminal and civil liability to executive officers of bodies corporate, partners in a partnership and members of an unincorporated association's committee of management in appropriate circumstances. It also introduces investigative powers to allow authorised officers to gather evidence of suspected breaches of the work related offences and work related provisions.

To the extent that the government's legislative response may be resisted by some employers, those arguments are likely to have the underlying theme that the introduction of strict liability offences will impose requirements that are too onerous or burdensome on employers, that it is not the responsibility of employers, that more education is the answer, that more time is needed, or that there will be an impost on business. Similar arguments were run throughout the Howard government years to resist and delay the changes which were recommended by the 1999 review. The case for change has been clearly articulated by the ACTU as follows:

It is not seriously contested that illegal work is a problem for a whole of variety of reasons, both for the illegal workers themselves, as well as all those working legally, whether they be Australian citizens and residents, or overseas workers with valid work rights. The prevalence of illegal work … affects … those employers who are doing the right thing, and the broader community. Major concerns with illegal work include:

employees employed illegally are more susceptible to exploitation and less likely to raise matters such as ill-treatment, safety concerns or under-payment because of their highly precarious status;

it has the effect of driving down local wages and conditions, lowering safety standards, and taking away local employment opportunities;

those employers employing illegal workers are less likely to comply with other legal obligations such as industrial relations, OHS, workers' compensation and taxation laws; and

In the worst cases, it can involve labour trafficking, forced labour, and slavery.

The real issue then becomes what practical measures are required to address the problem to reduce and remove the impact and incidence of illegal work. This means measures to deter employers who might be tempted to employ overseas workers without valid work rights and to ensure that those who do the wrong thing can be dealt with effectively.

One of the more disturbing aspects of illegal work is the use of student visas to bring people to Australia for exploitation in the sex industry. Anecdotal evidence given to the Drugs and Crime Prevention Committee of the parliament of Victoria for its inquiry into people-trafficking for sex work, and its subsequent report in June 2010, suggests that the number of trafficked women on student visas is quite large and growing. Certainly, Commonwealth prosecutors working on trafficking cases have seen evidence of trafficked women entering Australia on student visas. Indeed, being on a student visa did not exclude them from working legitimately in the sex industry. The prosecutors told the committee the problem was that in such cases it was very difficult to prove these women were working more than the 20 hours permitted on such a visa or that they had been brought to Australia to be exploited as trafficking victims.

The report of the committee indicated that trafficking can occur whether women arrive through legal means with valid visas and documentation, or through illegal means. It is not unusual for traffickers to arrange documentation such as student, visitor, tourist or working holiday visas on the basis of incorrect, forged or otherwise fraudulent applications in the source country. At this stage of the recruitment process money may also be deposited in an account opened in the victim's name to give veracity to her application for a visa. This may be particularly the case if the woman has made an application for a tourist visa. She will then be able to show she has sufficient means to support herself in Australia even though it is highly unlikely she will have access to, or control over, those monies once she has reached her destination. There is also some evidence that traffickers may arrange for sham marriages to a 'mule' or other person in order to strengthen their visa applications.

Concern has also been expressed to the committee about the role played by some colleges that accept overseas students particularly in Sydney and Melbourne. There have been strong suggestions that this under regulated sector is being used to provide a cover for traffickers and their operations. In particular, it has been observed that some colleges have been less than vigilant in monitoring attendance rates of people on student visas when they are obliged to do so. Evidence given to the inquiry by trafficking victims support workers also indicated that, in some instances, women are even paid to attend college, or at least make an appearance, as substitutes for the enrolled victim. Nina Vallins, the Executive Director of Project Respect, stated:

We are aware of cases where women have come in on student visas and they never set foot in the school. The school is in on it. The school is paid off or whatever it is to tick the women off on their roll, or there have been cases where someone else would go to the school on behalf of that woman and pretend to be her. But clearly there are these very dodgy schools which are assisting traffickers in their operations. It is a frustration for us that there does not appear to be monitoring of the schools.

The Salvation Army also told the committee how bona fide students may get caught up in trafficking once in Australia. Captain Danielle Stricklandsaid that in her view many young women who are legitimately here as students and are finding it hard to make ends meet are susceptible to being recruited for sex work whilst in Melbourne. That is, they are subjected to a form of domestic trafficking.

There are also many documented examples of exploitation of workers on 457 visas, the temporary migrant workers. I was recently made aware by the Australian Institute of Marine and Power Engineers of the dismissal of the Danish engineer, Tonny Lind, who was on a 457 visa sponsored by Maersk Australia. According to the Australian Institute of Marine and Power Engineers, Mr Lind questioned the company regarding whether his rate of pay was less than what he was entitled to. When the company did not address his concerns he sought advice from the union and then went to the Fair Work Ombudsman. The company subsequently dismissed Mr Lind,making reference in their letter of dismissal to the fact that he was seeking redress through Australian authorities over his pay and, as a result, instant dismissal was warranted pursuant to Danish law. This seems extraordinary to me and tends to confirm the concerns I have expressed for a number of years that 457 visas are open to abuse as a vehicle to pay reduced wages and conditions.

There was also the recent decision by Fair Work Australia in reference to the Giovenco Industries and Rio Tinto Alcanmaintenance agreement of 2012. The Australian Institute of Marine and Power Engineers has also expressed concerns to me about this agreement. The Institute of Marine and Power Engineers believes that in this case 13 senior employees were made redundant, and the company then employed five workers of Filipino background just prior to the vote on the agreement, and that the latter were not allowed enough time nor had the ability to meaningfully understand the enterprise bargaining agreement that they were to vote on. The nominated bargaining agent for the agreement at the time, Mr Michael Huddy, asserted that the five workers were employed on 15 February just prior to the vote on 20 February and therefore did not receive a notice of representation rights at least 21 days prior to the employer requesting that they approve the proposed enterprise agreement under section 173 of the Fair Work Act of 2009. Mr Huddy noted that the vote on 20 February was 46 votes yes and 43 votes no and that this followed a previously unsuccessful vote a couple of months earlier in December 2011. Fair Work Australia determined that no breach of notice of representation rights had occurred as the requirement to notify in section 173 arises at notification time and applies only to employees employed at notification time, and was subsequently not applicable to the Filipino workers.

I believe this agreement raises serious concerns about the potential for abuse of subclass 457 visas. The case highlights a loophole in the act that allows an employer to secure an agreement in circumstances where it could well be that the aforementioned five workers were not in a position to understand their rights and options.

Recent estimates put the number of unlawful noncitizens and lawful noncitizens working without permission in Australia at around 100,000. This is despite the fact that the Department of Immigration and Citizenship continues to have considerable success in locating illegal workers. We must tackle the continuing practice of allowing or referring unlawful noncitizens, or lawful noncitizens without the required permission, to work. It remains a serious issue as it undermines the integrity of Australia's migration program and has resulted in the exploitation of vulnerable people. It places Australian businesses engaging noncitizen workers without permission to work at a competitive advantage and penalises employers who do the right thing. Its effect is to reduce taxation revenue as well as work opportunities for Australians and those noncitizens with permission to work.

This bill addresses the government's long-held concern about the serious matter of illegal work in Australia and demonstrates the government's determination to tackle the difficult issues associated with this practice. I commend the bill to the House.