Migrant Worker Exploitation Scheme
In 2024, the federal government passed legislation introducing a scheme to ensure compliance with the Migration Act 1958 by employers who sponsor workers from overseas. The scheme includes both criminal and civil penalties, and empowers the Minister to prohibit non-compliant employers from retaining migrant workers for a stated period. This page outlines the penalties and protections that exist under the new migrant worker exploitation scheme.
Legislation
The Migration Amendment (Strengthening Employer Compliance) Act 2024 makes changes to the Migration Act 1958.
Purpose of the scheme
The changes were introduced to establish criminal offences and associated civil penalties for persons who influence or pressure workers who are non-citizens to breach the conditions of their visa, or to accept exploitative work arrangements in order to meet work-related visa conditions.
The scheme is intended to protect vulnerable workers, to promote compliance with immigration laws, and to increase transparency by maintaining a public record of employers who have been non-compliant.
Pressuring worker to breach visa conditions
The amending legislation introduces criminal and civil penalties for employers who pressure immigrant workers to agree to work arrangements that breach their visa conditions
Criminal penalty
A person commits an offence if they knowingly or recklessly coerce or put pressure on a worker who is a lawful non-citizen to agree to a work arrangement that results (or would result) in a breach of a work-related visa condition.
This offence carries a maximum penalty of imprisonment for two years, a fine of 360 penalty units, or both.
Civil penalty
A person who commits this offence may also be issued with a civil penalty.
The maximum civil penalty is a fine of 240 penalty units.
Pressuring worker through prospect of adverse effect on visa
There are also criminal and civil penalties that apply when a person coerces or pressures an immigrant worker to agree to a work arrangement through the worker’s belief that if they do not accept or agree:
- there will be an adverse effect on their visa status
- they will be unable to provide information or documents about work they have done in Australia in connection with their visa.
Criminal penalty
A person who is guilty of this offence is liable to a maximum penalty of imprisonment for two years, a fine of 360 penalty units, or both.
Civil penalty
A person who is guilty of this offence is also liable to a civil penalty. The maximum civil penalty is a fine of 240 penalty units.
Prohibited Employer Registry
Under the Migration Act 1958, the Immigration Minister now also has the power to declare persons to be prohibited employers. This may occur when an employer or workplace has engaged in serious, deliberate or repeated non-compliance with laws.
Once an employer has been prohibited, it is listed on the Prohibited Employer Register. This is a public register that provides information about employers, sponsors and third parties who have been prohibited from retaining additional migrant workers due to serious breaches of the Migration Act 1958.
When the minister is considering making a prohibition decision, the employer will receive a notice outlining the reasons that it may be made subject to a prohibition. The employer will be given 28 days to make a submission explaining why it should not be prohibited.
If the Minister declares a person to be a prohibited employer, they must not hire additional non-citizens for the period that the prohibition is in place. After the prohibition ends, they can resume hiring temporary migrant workers but are required to comply with special reporting requirements.
An employer can seek a review of a prohibition decision by the Administrative Appeals Tribunal (AAT).
Whistleblower protection
Under the changes, it is no longer an offence for a person who holds a temporary visa to breach the work conditions of that visa. This change is designed to encourage migrant workers to report exploitative work conditions without fear of jeopardising their visa status.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.