Home Affairs policy on Fair Work referrals uncovered

Ever since worker exploitation was thrust into the spotlight in 2015 with reports of 7-Eleven franchises underpaying staff and doctoring records to cut costs, the Fair Work Ombudsman (FWO) has lost little time in investigating similar businesses employing migrants, and where exploitation may be prevalent. A quick scan of their media releases for this year show a lot of activity with workplaces where temporary visa holders have been employed.

The FWO recently audited a number of Domino’s Pizza franchises, releasing a compliance report. Interestingly:

  • A major factor for non-compliance from franchisees was that 65 per cent were from non-English speaking backgrounds with minimal knowledge of workplace relations laws,

  • Visa data from two franchises with the same sole director showed that 19 per cent of the 51 employees did not hold a visa with work rights,

  • Allegations were made that franchises were offering visa sponsorship, although none were led to be proven.

A big concern with the FWO investigations has been the unwillingness of exploited workers to come forward. In a media release linked above, the FWO recognised that visa holders, particularly international students, may have been breaching their visa conditions by working more hours than allowed. Furthermore, the FWO admitted that it was “disappointing when we come across instances of international students themselves offering to work for lower wages for more hours.” This represents a complicity not previously covered by the media.

In a recent Freedom of Information request made to the Department of Home Affairs (Home Affairs), the referral protocols between the FWO and Home Affairs were released. This gives keen insight into the likelihood of Home Affairs acting against visa holders when worker exploitation may have occurred.

The document states that from February 2017, Home Affairs will generally not cancel a visa, detain or remove from Australia a temporary visa holder provided they commit to abide by their visa conditions in the future, and that there are no other grounds for cancelling their visa, such as character, health, fraud, and national security concerns.

For those who held visas without work rights, Home Affairs have stated that they will assess each referral on a case-by-case basis and make no further commitment. One expects those referred not holding any visa will not be afforded any protection.

The document states the protocol is an attempt to encourage temporary visa holders to report exploitation to the FWO. It would be interesting to see if there has been any analysis done to see whether it has achieved any success.