The incorporated speech read as follows—
I rise to speak on the Migration Legislation Amendment (Worker Protection) Bill 2008.
This bill was introduced to the Senate by Senator Evans, the Minister for Immigration and Citizenship to provide for better protection of migrant workers in Australia.
The amendments before the Senate today arose out of a review of the 457 visa program which the Rudd Government announced earlier this year.
The subclass 457 or Temporary Business Entry visa was introduced by the Howard Government in August 1996 to provide temporary relief for businesses suffering from skills shortages.
Under the 457 visa, an employer can sponsor an overseas worker to work in Australia on a temporary basis.
The 457 visa was intended as a stop-gap measure —not a substitute —for the shortage of skills in Australian industries.
However, the explosion of 457 visa applicants in recent years is symptomatic of the failure of the Howard Government to address Australia’s skills crisis.
In the first year of the visa program’s operation, 1997-98, there were just over 30,000 visas granted.
These figures include eligible secondary applicants – or family members living in Australia with the primary applicant for the period of their stay.
The number of visas granted has steadily increased over time, but appears to have increased dramatically in the past three or four years.
By 2005-06 the number of 457 visas granted had reached just over 70,000, up from 48,000 the previous year.
In the year to June 2008 (the year just gone) a massive 110,000, of what are now known as Temporary Skilled Migration Visas, were issued.
The rapid growth in 457 visas is symptomatic of the Howard Government’s failure over its twelve long years in office to plan for the skills needs of Australia.
While they were raking in masses of revenue off the back of the resources boom, they had plenty of opportunity to invest in the skills and qualifications of Australians.
Instead they allowed Australia’s skills crisis to continue unchecked.
The Rudd Government, on the other hand, is serious about addressing the skills crisis.
One of the roles of government is to forecast the skills needs of the country and to take steps to skill our workforce so that Australia’s skills needs can be met first and foremost by Australian workers.
The Rudd Government will give priority to training and skilling Australian workers so that our own workforce can meet the skills needs of industry.
We will work to ensure that Australia’s workforce has the capabilities necessary to fill as many Australian jobs as possible.
This is why we announced in the May Budget that we would make a $19.3 billion investment in education and training to provide employment opportunities for Australians.
We have committed to this investment for the future because we recognise that skills are a vital element in a productive economy.
Having said that, we recognise that developing qualifications takes time and so, therefore, will not meet the immediate skills needs of industry.
Consequently – we support the 457 visa program as a temporary measure to meet short term skills shortages.
But a program for temporary overseas workers should not end up becoming a long term response to Australia’s failure to plan for its own skills needs as it was under the previous government.
The other unfortunate side effect of the 457 visa program has been the mistreatment and exploitation of workers.
While the vast majority of employers do the right thing, the Rudd Government share concerns, with others, about the incidence of employer breaches in the subclass 457 visa program.
There were 1353 employers formally warned and 192 sponsors formally sanctioned in 2007-2008.
Comparatively in 2006-2007 there were only 95 sanctions and 313 formal warnings – so you can see that this government is acting to protect these workers.
Australia cannot take pride in its 457 visa program until we take serious steps to combat the human misery visited on overseas workers by some unscrupulous employers.
I quote Senator Evans who recently stated:
“The temporary working visa scheme is only sustainable if the community is confident that overseas workers are not being exploited or used to undermine local wages and conditions”.
This is what the bill before the Senate today seeks to address.
On 28 August 2007 the Sydney Morning Herald reported three deaths of workers sponsored on 457 visas.
In two of the three cases, the workers were undertaking menial labouring work instead of the skilled work they were brought over for.
They had also complained to their families that their working conditions had been a lot tougher than they were told to expect before they came to Australia.
In the third case, the worker was killed by a tree while operating a chainsaw—a job for which he had no previous experience.
All three left behind families including wives and children.
Clearly employers are breaching their obligations under the temporary skilled migration program if they expect overseas workers to engage in work that do not employ the skills they were apparently brought over for.
However, it is one thing to have reasonable obligations for sponsors of 457 visas, it is another entirely to have the monitoring and oversight to effectively enforce those obligations.
The workers referred to by the Herald’s article may have survived had they felt confident to complain about the conditions they were employed under.
These cases reveal an unfortunate feature of the 457 visa program which is the vulnerability of workers to exploitation.
This vulnerability has been exposed in various court cases.
For example fifteen 457 visa holders employed by Hanssen Pty Ltd signed unapproved Australian Workplace Agreements for which their employer failed to provide information statements.
The workers did not speak up for fear of deportation and their employer exploited that fear.
A similar vulnerability was identified by the Federal Magistrate in the case of Zefirrelli Pizza Restaurant, who underpaid employees on 457 visas.
There have been other examples where visa holders who question the actions of their employer have been dismissed and then deported as an example to other workers to ensure their compliance.
When we hear about cases of workers on 457 visas who got justice because one of them was brave enough to complain to the authorities, it really should make us wonder how many more cases go unreported.
As I said in my speech on Fair Work Australia, there is no greater financial or human cost in workplace relations than the failure to have effective Occupational Health and Safety arrangements.
Such arrangements rely on the ability of workers to raise complaints and issues.
457 visa workers cannot raise OH&S concerns if they are silenced by fear.
OH&S is especially important for 457 visa workers as they tend to be employed in high-risk industries such as construction, manufacturing and mining.
This is why the temporary skilled migration scheme needs proactive monitoring, why workers need to be made aware of their rights, and why employers need to have their obligations enforced with penalties that provide an effective deterrent.
I note that last Monday, in an article in the West Australian, the Shadow Minister for Immigration said that the Opposition would support our reforms.
The Shadow Minister, Sharman Stone, went on to admit that the 457 visa scheme led to exploitation of workers.
While I welcome the Opposition’s support, I would like to know why they decided to wait for the Rudd Government to put forward the legislation before supporting reform.
Have cases of worker exploitation only recently come to their attention?
We identified exploitation of overseas workers years ago and have been calling for changes to 457 visas ever since.
So why did the Opposition fail to lead on temporary skilled migration reform when they were in Government?
I would be very interested to hear Dr Stone explain in The Other Place why she suddenly sees reform of the temporary skilled migration system as necessary after the litany of complaints and concerns that were raised for many years while her party was in Government.
Of course the Rudd Government recognises that reform is overdue and we are leading on it.
On 18 April 2008, the Minister for Immigration and Citizenship, Senator Evans, established an independent integrity review into the 457 subclass visa.
The terms of reference of the review included:
- measures to strengthen the integrity of the 457 visa program
- the employment conditions that apply to workers employed under the temporary skilled migration program
- the adequacy of measures to protect 457 visa holders from exploitation
- the health and safety protections and training requirements that apply in relation to temporary skilled workers
- the English language requirements for the granting of temporary skilled migration workers’ visas, and
- the opportunities for Labour Agreements to contribute to the integrity of the temporary skilled migration program.
The Migration Amendment (Worker Protection) Bill is the Government’s response to the review’s recommendations.
It contains a number of measures to strengthen the integrity of Australia’s temporary skilled migration program and to minimise the exploitation of workers.
The bill contains improved sanction powers—including new powers—against a sponsor who fails to satisfy a sponsorship obligation.
In the event of a sponsor failing to satisfy their obligations, the Department of Immigration may initiate civil proceedings against them in the Federal Court.
A penalty of up to 60 penalty units (currently $6,600) can be imposed on an individual or 300 penalty units (currently $33,000) on a body corporate.
The Department may cancel the sponsor’s approval as a sponsor and bar them for a time from making further applications for approval as a sponsor.
The bill also contains provisions for improved monitoring and information sharing.
It will allow the Department to collect contact details of 457 visa holders from larger employers for the purpose of providing them with information about their rights and entitlements while in Australia.
The bill will allow for greater information sharing between the Department, the sponsor and the visa holder allowing all three parties to be better informed of each others’ circumstances.
There will also be provisions for information sharing between Commonwealth, State and Territory governments to facilitate a whole-of-government approach to compliance.
Provisions in the bill will amend the Taxation Administration Act 1953 to allow the Commissioner of Taxation to disclose tax information to the Department of Immigration and Citizenship.
This will allow the Department to confirm with the Tax Office what taxable salary is being paid to visa holders for the purpose of ensuring that the minimum required salary is being paid.
The bill will introduce a better regime for monitoring compliance with the obligations of the visa.
New inspector powers will be granted modelled on the workplace inspector powers in the Workplace Relations Act 1996.
Inspectors will have the power to
- enter the premises without force,
- inspect the premises,
- interview any person,
- require the production of documents, and
- copy such documents.
The bill will also improve the framework for sponsorship, setting out obligations for approved sponsors in Regulations that for the first time will be enforceable by law.
The Regulations will be developed in consultation with stakeholders and finalised in the coming months.
The Regulations will establish a process to vary an approval so that an approved sponsor does not have to go through the whole sponsorship process again just to seek a variation to their sponsorship.
The bill introduces a range of provisions to better protect temporary overseas skilled workers. It includes:
- improved monitoring powers,
- the introduction of civil penalties for sponsors who breach obligations,
- clarifying sponsor obligations and ensuring they are enforceable under the Act, and
- greater information sharing between governments and Government agencies
This reform process is central to maintaining the integrity of Australia’s temporary skilled migration regime and restoring community confidence in the protection of the rights of overseas workers.
While these reforms are important and necessary, the Government is open to advice and feedback on further reform.
The Rudd Government has therefore established a Skilled Migration Consultative Panel comprising representatives from State and Territory governments, the business community and other industrial stakeholders.
This Panel will consider proposals for temporary skills migration reform and advise on their impact on business, the Australian workforce and the broader community.
In conclusion, let me re-iterate:
The Rudd government has worked to strengthen the integrity of the temporary skilled working visa program by:
- As of 1st August this year increasing the minimum salary level for subclass 457 visa holders (for the first time in two years) and that applies to existing visa holders.
- Appointed an Industrial Relations Commissioner, Barbara Deegan to review the integrity of the current subclass 457 visa program with the aim of better protecting overseas workers.
- This report will be referred to the Skilled Migration consultative Panel which is made up of industry, union and state government representatives.
- And introduced the Migration Legislation Amendment (Worker Protection) Bill 2008 which has four main provisions:
(1) expanded powers to monitor and investigate concerns of non-compliance by sponsors
(2) the establishment of penalties for employers found in breach of their obligations
(3) Improved information sharing to allow immigration officials to check the tax records of employers and employees to ensure they are paying the correct wages; and
(4) Better defined sponsorship obligations for employers and other sponsors.
The details of the obligations will be finalised in consultation with the consultative Panel by early next year.
I would like to congratulate the Minister on his initiative in bringing this reform proposal to the Senate and for the sake of 457 visa holders throughout Australia I urge all Senators to support it. Thank you.