For many years, some temporary visa holders in Australia have suffered from workplace exploitation by their employers. Many of these migrant workers do not report such exploitation due a range of concerns including losing their jobs, having their employer-sponsored visa canceled, or being left without a valid visa while their case is under investigation.
In response to these concerns, the Department of Home Affairs has introduced on July 24, 2024, a new visa called the Workplace Justice Visa (Subclass 408). This pioneering initiative aims to support temporary migrants who have faced workplace exploitation.
The visa allows these individuals to remain in Australia for a designated period to address issues related to unfair treatment, such as wage theft, unsafe working conditions, unlawful wage deductions, or other forms of exploitation.
At Work Visa Lawyers, we have been advocating for a Workplace Justice Visa for several years. For instance, we called for a vulnerable person visa in a migration strategy blog published on November 21, 2022.
Click here to read more about the Workplace Justice Visa (WJV).
What is Workplace Exploitation?
Main types of exploitation that may be covered by the Workplace Justice Visa:
- underpayment or non-payment of wages or other workplace entitlements;
- unlawful, unpaid or underpaid training or trials;
- up-front payment or deposit for a job;
- misclassification of workers as independent contractors instead of employees;
- unlawful deductions from wages;
- unfair dismissal;
- non-compliance with workplace health and safety requirements;
- bullying, in relation to work or an arrangement in relation to work;
- sexual harassment, in relation to work or an arrangement in relation to work;
- discrimination, in relation to work or an arrangement in relation to work;
- coercion, undue influence or pressure, or misrepresentation, in relation to work or an arrangement in relation to work.
Recent case of exploitation
In a recent case highlighted by the Fair Work Ombudsman, a record $15.3 million in penalties was imposed on the operators of Sushi Bay outlets in NSW, Darwin, and Canberra for the deliberate exploitation of vulnerable migrant workers. The companies involved underpaid 163 workers, primarily Korean nationals on student, working holiday, and 457 skilled worker visas, by a total of $653,129 between February 2016 and January 2020.
The workers were exploited through practices such as falsifying records to conceal underpayments, with individual amounts ranging from $48 to $83,968.
This case underscores the severe consequences for businesses that engage in wage theft and exploitation of migrant workers.
Protection against visa cancellation
A crucial aspect of this visa is the protection against visa cancellation. Migrants will not face deportation threats when they come forward to report exploitative employers, if they can meet the requirements for the Workplace Justice Visa.
Who can apply for the Workplace Justice Visa and visa duration
Temporary migrants who have experienced workplace exploitation may be eligible to apply for this visa and can stay in Australia for 6 to 12 months.
Certification requirement for the Workplace Justice Visa
To apply, migrants must obtain certification from an authorized entity or government agency. This certification verifies their claims of exploitation and the need for an extended stay to resolve these issues.
Challenges of the Workplace Justice Visa
Some of the main challenges of the 408 Workplace Justice Visa include:
- Obtaining the certification of your workplace exploitation claim from a participating government agency or an accredited third party
- Holding a temporary substantive visa with work rights, with no more than 28 days remaining; or having held a temporary substantive visa with work rights that has ceased within 28 days
At present, we do not know how long it will take for the participating government agency or accredited third party to provide this certification. Since the temporary migrant can only apply for the Workplace Justice Visa when their visa is close to expiring or has already expired, this could make the process of obtaining the Workplace Justice Visa more difficult.
The Workplace Justice Visa Pilot Program represents a significant step towards ensuring fair working conditions and protecting migrant workers in Australia. It not only provides a temporary solution for those facing exploitation but also reinforces the commitment to upholding human rights within the workforce. As the pilot program is rolled out, it is expected to have a profound impact on the ability of migrant workers to seek redress for injustices they face in the workplace.
Are you being exploited and looking to apply for the Workplace Justice Visa?
Our team of experienced Immigration Lawyers and Migration Agents is ready to assist you with your visa application.
Please contact us if you need assistance with your 408 Workplace Justice Visa application. You can book an appointment online or call us at (+61) 8 8351 9956.
Based in Adelaide, South Australia, we provide Australian immigration advice to people and businesses from all over the world.
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