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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION AMENDMENT (STRENGTHENING EMPLOYER COMPLIANCE)
BILL 2023
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for Immigration, Citizenship and Multicultural
Affairs, the Honourable Andrew Giles MP)
Migration Amendment (Strengthening Employer Compliance) Bill 2023
OUTLINE
The Migration Amendment (Strengthening Employer Compliance) Bill 2023 (the Bill)
amends the Migration Act 1958 (the Migration Act) to strengthen the legislative
framework in the Migration Act to improve employer compliance and protect temporary
migrant workers from exploitation.
The amendments in the Bill seek to deter employers from misusing migration rules to
exploit temporary migrant workers. The Bill also contains provisions to improve employer
compliance using both deterrence and remediation, and to protect temporary migrant
workers from employers that have been found to have engaged in serious, deliberate or
repeated non-compliance.
Government amendments
These Government amendments (UB100) respond to recommendations made by the
Senate Legal and Constitutional Affairs Legislation Committee in its report Migration
Amendment (Strengthening Employer Compliance) Bill 2023 [Provisions], released on
31 August 2023 following its inquiry into the Bill. This includes amendments to:
• remove the exclusion of accessorial liability for breaches of the Fair Work Act 2009
(Fair Work Act) from the Bill, recognising the need to ensure the anti-avoidance
framework is sufficiently robust (recommendation 1); and
• insert an objects clause for the employer prohibition scheme (recommendation 5).
The Government amendments also address views expressed by the Senate Standing
Committee for the Scrutiny of Bills in Scrutiny Digest 10 of 2023, and by the
Parliamentary Joint Committee on Human Rights in Report 9 of 2023. The amendments
have also been informed by careful consideration of evidence given by expert witnesses to
the Senate Legal and Constitutional Affairs Legislation Committee in the course of its
inquiry, and by consultation with industry, businesses and other non-government
stakeholders.
The amendments have been developed in close consultation between the Department of
Home Affairs and the Department of Employment and Workplace Relations, together with
the Fair Work Ombudsman and the Australian Border Force. The amendments ensure the
Bill is comprehensive, robust, balanced and fair to both employers and temporary migrant
workers.
The amendments include:
• establishing a definition for the expression arrangement in relation to work to
clarify the scope of arrangements covered by the new offences and civil penalty
provisions in the Bill;
• inserting an objects provision for the prohibited employer provisions in proposed
Subdivision E of Division 12 of Part 2 of the Migration Act;
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• amending the Bill to ensure that the accessorial liability provisions in the Fair Work
Act apply, and non-traditional employment relationships are captured, in relation to
the Fair Work Act contraventions for the purposes of the prohibited employer
declaration measure;
• amending the Bill so that the triggers for a prohibited employer declaration measure
encompass court orders and enforceable undertakings relating to contraventions of
any civil remedy provision in the Fair Work Act;
• amending the Bill so that the Migration Amendment (Strengthening Employer
Compliance) Act 2023 will commence in its entirety on 1 July 2024;
• specifying matters in the Migration Act that the Minister must consider when
deciding whether to make a prohibited employer declaration, instead of leaving the
criteria to be prescribed in the Migration Regulations 1994;
• establishing maximum periods that can be specified for a prohibited employer
declaration made in relation to a 'migrant worker sanction', with a graduated scale
reflecting the relative seriousness of lower-order non-compliance through to serious
criminal offending involving human trafficking and slavery;
• clarifying that the work that is in scope of this legislation is work that is done, or is
to be done, by the temporary migrant worker in Australia; and
• other minor and technical amendments.
FINANCIAL IMPACT STATEMENT
The amendments of the Bill have no revenue impact over the forward estimates period.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
government amendments of the Bill. The Statement assesses that the amendments are
compatible with Australia's human rights obligations. A copy of the Statement is at
Attachment A.
3
AMENDMENTS OF THE MIGRATION AMENDMENT (STRENGTHENING
EMPLOYER COMPLIANCE) BILL 2023 (UB100)
NOTES ON AMENDMENTS
Amendment (1)--Clause 2, page 2 (table)
1. This amendment substitutes a new commencement table in clause 2 of the Bill. As
amended, the Bill provides that the whole of the Migration Amendment (Strengthening
Employer Compliance) Act 2023 (the Amendment Act) commences on 1 July 2024.
2. Clause 2 of the Bill currently provides for the majority of amendments in the
Amendment Act to commence on a day to be fixed by Proclamation, within the period of
12 months after Royal Assent--or on the day after the end of that period, if no Proclamation
is made to effect earlier commencement.
3. This amendment provides clarity and certainty for employers, workers, migrant
communities, industry, unions and other stakeholders in relation to the commencement of
these important reforms. Fixing 1 July 2024 as the commencement date for the amendments
of the Migration Act 1958 also provides time for the Department of Home Affairs and the
Australian Border Force to engage with stakeholders, to ensure that employers, labour hire
intermediaries and other parties to the employment chain are aware of the new requirements,
and have had the opportunity to implement any necessary changes to their business
processes and practices in advance of the commencement date.
Amendments (2), (3), (4), (5), (7) and (9)
4. These are consequential amendments, required to support the insertion, by
Amendment (10), of new item 2A in the Schedule to the Bill. New item 2A inserts proposed
section 245AGA in the Migration Act.
5. Proposed section 245AGA provides for the meaning of the expression arrangement
in relation to work for the purposes of proposed sections 245AAA, 245AAB and 245AAC
of the Migration Act.
Amendments (6) and (8)
6. These amendments clarify and ensure consistency in the jurisdictional scope of the
new criminal offences in proposed sections 245AAA, 245AAB and 245AAC of the
Migration Act.
7. The amendments make clear that the work that is within scope of the three new
offences and associated civil penalty provisions is work that is done, or is to be done, by the
temporary migrant worker in Australia. The amendments also ensure consistency between
proposed sections 245AAB and 245AAC and proposed section 245AAA, where paragraph
245AAA(1)(c) is already expressed in terms of dealing with work that is done, or is to be
done, in Australia.
Amendment (10) --Schedule 1, page 7 (after line 21)
8. This amendment inserts new item 2A in the Schedule to the Bill. New item 2A
inserts proposed section 245AGA in the Migration Act. Proposed section 245AGA provides
for the meaning of the expression arrangement in relation to work for the purposes of
proposed sections 245AAA, 245AAB and 245AAC of the Migration Act.
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9. The Bill does not currently include a definition of this expression for the purposes
of the offences and civil penalty provisions in proposed sections 245AAA, 245AAB and
245AAC. Establishing the meaning of arrangement in relation to work in the legislation,
rather than relying on the ordinary meaning of the term and extrinsic material, makes clear
that both work-related and non-work-related activities are included. By inserting new
section 245AGA in the Bill, this Amendment clarifies the intent and scope of the new
offences and associated civil penalty provisions for those unscrupulous employers and
others in the employment chain who use a person's immigration status to exploit them in the
workplace.
10. New subsection 245AGA(1) provides that the term 'arrangement in relation to work'
means an arrangement, in connection with a person (the first person) allowing another
person to:
• accept certain conditions; or
• perform, or refrain from performing, an activity, whether for the first person or
someone else; or
• participate in, or refrain from participating in, an activity, whether for the first person
or someone else.
11. The kinds of exploitative behaviours experienced by temporary migrant workers in
connection with work also extend beyond the workplace. New subsection 245AGA(2)
clarifies, to avoid doubt, that the performance of an activity includes a reference to the
performance of a work-related activity or a non-work activity. The purpose of this
subsection is to ensure that it is clear that the offences and civil penalty provisions in
proposed sections 245AAA, 245AAB and 245AAC encompass work-related activities and
also activities that are not directly related to work, such as arrangements for a person to
accept unsafe housing arrangements, to surrender a passport, or to perform sexual favours.
12. Together, proposed subsections 245AGA(1) and (2) provide that an 'arrangement in
relation to work' covers both work-related activities and non-work related activities.
Proposed subsection 245AGA(2) is supported by a note including examples of non-work
activities that would constitute an arrangement in relation to work under subsection
245AGA(1).
13. The development of new section 245AGA was informed by consideration of
evidence submitted to the Legal and Constitutional Affairs Legislation Committee during
its inquiry into the Bill by expert witnesses, as well as subsequent stakeholder consultation.
This Amendment also responds to concerns raised in submissions and by witnesses in the
course of the Committee's inquiry into the Bill, including that in the absence of a statutory
definition of the term 'arrangement in relation to work', a narrow interpretation may be
adopted, and would not extend to activities such as sexual harassment or unsafe conditions
or accommodation.
Example
Person A is an international student studying pharmacy, who has recently arrived in
Australia. Before the semester starts, Person A attempts to find part-time work to
support their stay; however, they are finding it difficult to find employment.
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Person A secures work with a labour hire intermediary (LHI X) and explains that they
are restricted from working more than 48 hours a fortnight during the term, in line with
their work-related visa condition (condition 8105). LHI X notes Person A's work
restrictions and arranges a contract with an employer.
Person A has been working 48 hours a fortnight. After two months, LHI X requests
Person A to accept an additional contract with another employer. If Person A accepts
this additional contract, they would be working more than 48 hours a fortnight.
Person A politely declines LHI X's request, and explains that their visa does not allow
them to work additional hours.
The following month, the LHI X director makes sexual advances towards Person A.
Person A rejects those advances and the LHI director threatens Person A that they will
report them to Home Affairs to have their visa cancelled if they don't comply despite
the fact that Person A has not breached their visa condition.
Whether or not Person A had worked the additional hours in breach of a work-related
visa condition, LHI X may be liable for prosecution, or a civil penalty, under new
section 245AAA of the Migration Act.
Amendment (11) - Schedule 1, item 5, page 8 (before line 23)
14. This amendment inserts an Objects section to set out the objects of proposed
Subdivision E (Prohibited Employers) in Division 12 of Part 2 of the Migration Act.
15. New section 245AYAA of the Migration Act is intended to be a guide to the reader
of the objectives of Subdivision E. This section would provide that the objects of proposed
Subdivision E are:
• to protect, to the extent possible, non-citizens (other than holders of permanent visas)
from being exploited, or further exploited, by employers;
• to ensure that such non-citizens are not exposed to employers or workplaces that
have engaged in serious, deliberate or repeated non-compliance with certain laws;
and
• to ensure that non-compliance is dealt with in a way that considers the impact of any
sanctions on such non-citizens, the employer and the community as a whole.
16. New section 245AYAA of the Migration Act outlines key features of Subdivision E,
including the Minister's power to declare persons to be prohibited employers, requirements
in relation to proportionality, and promoting employer compliance with relevant laws.
17. This amendment is made in response to the Senate Legal and Constitutional Affairs
Legislation Committee's report Migration Amendment (Strengthening Employer
Compliance) Bill 2023 [Provisions]. In recommendation 5 in its report, the Committee
recommended that a clarifying amendment be made to the Bill to insert an objects clause
for the employer prohibition scheme [paragraph 2.110 of the Report].
18. The amendment confirms the objects of the prohibited employer provisions of the
Migration Act are to protect migrant workers from exploitation in the form of serious,
deliberate or repeated non-compliance with certain laws and to ensure the non-compliance
is dealt with in a way that considers relevant factors.
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Amendments (12), (13) and (14)
19. These amendments omit the definitions of 'involved in', 'relevant fair work
provision', and 'remuneration-related matter' from the Bill. These expressions are no longer
required as a consequence of the insertion of substituted sections 245AYH and 245AYI by
Amendment (16).
Amendments (15)--Schedule 1, item 5, page 13 (line 28) to page 14 (line 4)
20. This Amendment omits current subsection 245AYG(1) from item 5 of the Schedule
to the Bill, and substitutes a redrafted subsection 245AYG(1).
21. Amendments (15), (16) and (17) involve redrafts of sections 245AYG, 245AYH,
245AYI and 245AYJ to ensure that Fair Work Act contraventions involving accessories are
captured on the face of the Migration Act, not just by prescription by regulation. This
addresses some of the complexity within the Bill that gave rise to part of recommendation 1
from the Legal and Constitutional Affairs Legislation Committee report.
22. New subsection 245AYG(1) also omits the term 'employee' and instead makes
reference to the contravention being in relation to another person, who at the time of the
contravention was a non-citizen (other than the holder of a permanent visa).
Amendment (16)--Schedule 1, item 5, page 14 (line 18) to page 21 (line 29)
23. This amendment omits proposed sections 245AYH and 245AYI from item 5 of the
Schedule to the Bill, and substitutes redrafted sections 245AYH and 245AYI.
24. As substituted, section 245AYH sets out when a person is subject to a migrant
worker sanction as a result of a contravention of certain civil remedy provisions of the Fair
Work Act. Section 245AYI sets out when a person is subject to a migrant worker sanction
as a result of an enforceable undertaking. This amendment will:
• broaden the Fair Work Act triggers for a prohibition measure to encompass court
orders and enforceable undertakings relating to contravention of any civil remedy
provision, as defined in section 539 of the Fair Work Act.
• remove the requirement that a Fair Work order was not be made on the basis that a
person was 'involved in' a contravention, to capture contraventions established
under section 550 of the Fair Work Act and
• remove the requirement for Fair Work contraventions to relate to an 'employee,
prospective employee, or former employee'.
25. This amendment will ensure that all appropriate Fair Work Act contraventions are
included on the face of the Act, rather than by regulation. This includes sexual harassment
and general protections. The amendment will also help to future-proof the prohibition
measure as any changes to section 539 of the Fair Work Act would be reflected in the
Migration Act, without the requirement for further legislative action.
26. This amendment will also ensure that accessorial liability provisions in the Fair
Work Act apply in relation to the contravention of civil remedy provisions of the Fair Work
Act, and that non-traditional employment relationships are captured. The amendments are
intended to ensure proper accountability through the employment chain and prevent actors
from evading being susceptible to prohibition orders, for example through phoenixing
activity.
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Amendment (17)--Schedule 1, item 5, page 22 (line 3) to page 23 (line 37)
27. This Amendment omits subsections 245AYJ(1) and (2) from item 5 of the Schedule
to the Bill, and substitutes redrafted subsections 245AYJ(1) and (2).
28. This amendment has the effect of ensuring that contraventions involving non-
traditional employment relationships are captured, by removing the requirement that a non-
citizen must be an employee of the person (or in some cases a prospective employee or
former employee) at the time of the relevant contravention. This amendment also removes
the requirement that the relevant Fair Work Act compliance notice relate to a 'remuneration
related matter', in order to ensure that all appropriate Fair Work Act contraventions are
captured.
Amendments (18) and (19)
29. These amendments insert the words 'for a period' after 'employer' in proposed
subsections 245AYK(1) and (3) in item 5 of the Schedule to the Bill, to reflect that this
expression has been adopted by effect of Amendment (20) with respect to new subsection
245AYK(5).
30. Proposed subsection 245AYK(1) of the Migration Act provides that the Minister
may, in writing, declare a person to be a prohibited employer. Proposed subsection
245AYK(3) of the Migration Act provides that the Minister must give written notice before
declaring a person to be a prohibited employer. When read with new subsection
245AYK(8A) in Amendment (21), the effect of adding the words 'for a period' to these
subsections is that the Minister's declaration would also be required to set out the period of
time a person is declared to be a 'prohibited employer.'
31. The addition of these words also reflects that the duration of the Minister's
declaration is to be proportionate to the person's misconduct. This approach to the
Minister's power is also reflected in paragraph 245AYAA(2)(b) of the objects clause
outlined in Amendment (11).
Amendment (20)--Schedule 1, item 5, page 25 (lines 28 to 33)
32. This amendment substitutes proposed subsection 245AYK(5) of the Migration Act.
33. Before this amendment, proposed subsection 245AYK(5) provided that, in making
a decision whether to declare a person to be a prohibited employer, the Minister must
consider any written submission made by the person, so long as it is received by the Minister
within the required period, and any criteria prescribed by the regulations.
34. New subsection 245AYK(5), as substituted by this Amendment, addresses
Principle (iv) of the Senate Standing Committee for the Scrutiny of Bills Guidelines, in
relation to the inclusion of significant matters in delegated legislation. As amended,
subsection 245AYK(5) sets out the matters to which the Minister must have regard (criteria
to inform the prohibition decision) on the face of the Migration Act, rather than leaving
these matters to be prescribed by the regulations. This amendment also addresses views
expressed in submissions made to the Legal and Constitutional Affairs Legislation
Committee in the course of its inquiry into the provisions of the Bill, and reflected in
paragraphs 1.5 and 1.6 of the additional comments from Senator Paul Scarr in the
Committee's Report.
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Amendment (21)--Schedule 1, item 5, page 26 (after line 11)
35. This amendment inserts new subsection 245AYK(8A) into proposed section
245AYK in item 5 of the Schedule to the Bill.
36. Proposed subsection 245AYK(8) of the Migration Act provides that the declaration
of a person as a prohibited employer has effect during the period specified in the declaration
(unless sooner revoked).
37. New subsection 245AYK(8A), as inserted by this Amendment, provides for the
maximum period that can be specified, for the purposes of subsection 245AYK(8), in the
declaration by the Minister of a person as a prohibited employer under proposed subsection
245AYK(1) of the Migration Act.
38. Proposed section 245AYB of the Migration Act provides that the term migrant
worker sanction has the meaning given by proposed sections 245AYE to 245AYJ of the
Migration Act. Table item 1 in the table under new subsection 245AYK(8A) provides that
for the most serious non-compliance in relation to which a person is subject to a migrant
worker sanction--offences dealing with slavery and slave-like conditions, and trafficking
in persons and debt bondage--there is no upper limit on the period that may be specified in
the declaration. Table item 2 deals with other offences within the meaning of 'migrant
worker sanction', and provides that a maximum period of 10 years can be specified in the
declaration. Table item 3 provides that a maximum period of 5 years can be specified in a
declaration if the non-compliance is not in relation to an offence covered by table item 1 or
2. Item 3 includes the work-related civil penalty provisions of the Migration Act, relevant
civil remedy provisions of the Fair Work Act, a bar placed on an approved work sponsor
under current paragraphs 140M(1)(c) or (d) of the Migration Act, and other migrant worker
sanctions within the meaning given by proposed section 245AYB of the Migration Act. The
maximum periods set out in the table reflect the relative seriousness of the range of migrant
worker sanctions that are within the scope of proposed Subdivision E of Division 12 of Part
2 of the Migration Act.
39. Proposed subsection 245AYAA (as inserted by Amendment (11)) makes clear that
where the Minister is empowered to declare a person to be a prohibited employer, the
imposition of the declaration--including the duration of such a prohibition--is to be
proportionate: paragraph 245AYAA(2)(b). Proposed subsection 245AYK(5) of the
Migration Act (as amended by Amendment (20)) sets out the matters to which the Minister
must have regard in making a decision about whether to declare a person to be a prohibited
employer for a period. Proposed subsection 245AYK(8A) operates to complement this, by
setting out maximum periods that reflect the relative seriousness of certain non-
compliance--and particularly in circumstances where a migrant worker sanction is the
result of one or more criminal convictions related to the exploitation of a temporary migrant
worker.
Amendment (22)--Schedule 1, item 5, page 27 (line 6)
40. This amendment is a technical correction, to ensure that proposed subsection
245AYL(3) correctly refers to proposed subsection 245AYL(2), as intended.
9
Amendments (23), (24) and (25)
41. These are technical amendments, to ensure the note concerning section 40B of the
Fair Work Act is appropriately included as a note under proposed subsection 245APA(2) of
the Migration Act when the Amendment Act commences on 1 July 2024.
42. The purpose of current item 42 in Schedule 1 to the Bill was to insert a note at the
end of new subsection 245APA(2) of the Migration Act (as inserted by item 41 in
Schedule 1). Table item 4 of current clause 2 of the Bill operates to make the
commencement of item 42 contingent on the commencement of the Fair Work Legislation
Amendment (Protecting Workers Entitlements) Act 2023 (the Protecting Workers
Entitlements Act).
43. Following the commencement of section 40B of the Fair Work Act on 1 July 2023,
it is no longer necessary for the addition of the note under new subsection 245APA(2) to be
a contingent amendment. As a result, Amendments (23), (24) and (25) operate together to
ensure that the note dealing with section 40B of the Fair Work Act under proposed
subsection 245APA(2) of the Migration Act commences at the same time as the other
amendments in the Amendment Act.
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Supplementary Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Parliamentary Amendments to the
Migration Amendment (Strengthening Employer Compliance) Bill 2023
These amendments are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the parliamentary amendments
The Migration Amendment (Strengthening Employer Compliance) Bill 2023 (the Bill)
amends the Migration Act 1958 (the Migration Act) to strengthen the Government's
response to the exploitation of migrant workers in Australia by targeting employers and
third party providers who misuse visa programs to exploit temporary migrant workers. It
also implements Recommendations 19 and 20 from the Report of the Migrant Workers'
Taskforce (the Taskforce Report).
The proposed amendments to the Bill have been informed by the report of the Senate
Legal and Constitutional Affairs Legislation Committee, as well as additional feedback
from government and non-government stakeholders, and address a number of comments
made by the Parliamentary Joint Committee on Human Rights in its Report 9 of 2023. The
amendments have been developed in close consultation between the Department of Home
Affairs and the Department of Employment and Workplace Relations, together with the
Fair Work Ombudsman and the Australian Border Force, and informed by consultation
with industry, unions, businesses and non-government stakeholders.
The overarching aim of the amendments is to support clarity and transparency, protect
temporary migrant workers, and to ensure that instances of non-compliance can be
addressed in a way that is robust, balanced and fair to both employers and migrant
workers.
The amendments to the Bill focus on two of the measures:
• the new criminal offences and associated civil penalty provisions for using a
person's migration status to exploit them in the workplace; and
• the mechanism to prohibit employers who have exploited temporary migrant
workers from accessing temporary migrant workers for a period of time.
These measures and the amendments to them are outlined below.
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New offences
The Bill establishes criminal offences and associated civil penalty provisions for a
person who coerces or unduly influences or pressures:
• a lawful non-citizen to work in breach of a work-related visa condition, or
• an unlawful non-citizen to accept or agree to a work arrangement to avoid an
adverse effect on their continued presence in Australia
• a lawful non-citizen to accept or agree to a work arrangement in order to:
o meet a work-related visa requirement, or
o avoid an adverse effect on their status as a lawful non-citizen.
Amendments
The amendments clarify the intent of the offences by:
• providing a definition of 'an arrangement in relation to work'; and
• clarifying the geographical scope.
Following consideration of evidence submitted to the Senate Legal and Constitutional
Affairs Legislation Committee by expert witnesses, the recommendations by the
Committee, and subsequent stakeholder consultations, the Government proposes
amendments to the Bill to establish a definition in the Migration Act for the term
'arrangement in relation to work'. The amendments will also ensure it is applied
consistently in the new offences and associated civil penalty provisions.
Establishing a definition in the legislation, rather than relying on the ordinary meaning of
the term and explanatory text in the Bill's explanatory memorandum, will make clear that
both work-related and non-work-related activities are included. The objective is to ensure
that the relevant offences encompass arrangements which are not directly tied to work
activity. Examples of such activities are outlined in a non-exhaustive list so as not to
inadvertently narrow the scope of the offences. The examples include unsafe housing
arrangements, the surrender of passports or the performance of sexual favours. These
amendments clarify the intent and scope of the new offences and associated civil penalty
provisions, targeting unscrupulous employers and others in the employment chain who use
a person's migration status to exploit them in the workplace.
The proposed amendments would also include some minor technical and consequential
amendments, including to clarify that the offences relate to migrant worker exploitation
that takes place in Australia.
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Prohibition on certain employers allowing additional non-citizens to begin work
The Bill establishes a mechanism to prohibit an employer from allowing, for a
specified period, any additional temporary migrant workers to work, if the employer
is subject to a 'migrant worker sanction' because:
• the employer is convicted of a work-related offence against the Migration Act
• a court makes an order against the employer in relation to the treatment of a
migrant worker in contravention of:
o a work-related provision in the Migration Act, or
o a specified provision under the Fair Work Act 2009 (Fair Work Act),
including a failure to comply with a compliance notice issued for alleged
contraventions of certain provisions, or
o an offence relating to slavery, slavery-like practices or trafficking in persons
under Division 270 or 271 of the Criminal Code.
• the employer has been barred from sponsoring migrant workers through the
Migration Act's Employer Sponsorship Framework.
• the employer has failed to comply with a compliance notice issued under the Fair
Work Act for alleged contraventions of certain provisions or failed to comply with
the terms of an enforceable undertaking reached with the Fair Work Ombudsman
under the Fair Work Act.
Amendments
The amendments to the prohibition measure include:
• the inclusion of an objects clause to clarify the intent of the measure;
• amendments to the Fair Work Act 2009 (Fair Work Act) triggers, including to
ensure that accessorial liability, non-traditional employment relationships, and all
appropriate Fair Work Act contraventions, are captured, and
• the inclusion of the matters to be considered to inform prohibition decisions in the
Bill, which removes the need for these additional elements to be prescribed in the
Migration Regulations 1994 (Migration Regulations).
The amendments to the Bill that support the prohibition include:
• an objects clause outlining the intent of the prohibition and emphasising the
objective of proportionality;
• amendments to the 'migrant worker sanctions' to ensure all relevant conduct that
triggers the consideration of a prohibition declaration and anti-avoidance measures
are included;
• the matters the Minister must consider when making a prohibited employer
declaration ; and
• the maximum duration of the prohibition proportionate to the nature of the migrant
worker sanction.
13
These amendments are in addition to the following existing measures in the Bill that support
the prohibition:
• a defined set of circumstances that trigger the consideration of whether to declare a
person to be a prohibited employer, namely where the employer is subject to a
migrant worker sanction;
• a process that allows the employer to show cause as to why they should not be
prohibited from employing additional temporary migrant workers;
• a requirement to publish information about the prohibited employer;
• additional reporting requirements for the employer for 12 months following the
prohibition;
• merits review rights of the decision to impose a prohibition, which would also allow
the merits review body to consider the duration of the prohibition;
• consequences for failing to comply with the prohibition.
Objects clause
The objects clause proposed for the prohibition measure seeks to emphasise the underlying
intent of the measure, that is, to protect vulnerable temporary migrant workers. The
objects are set out in the amendments as follows:
• to protect, to the extent possible, non-citizens (other than holders of permanent visas)
from being exploited, or further exploited, by employers;
• to ensure that such non-citizens are not exposed to employers or workplaces that
have engaged in serious, deliberate or repeated non-compliance with certain laws;
• to ensure that non-compliance is dealt with in a way that considers the impact of any
sanctions on such non-citizens, the employer and the community as a whole.
The objects clause will also set out key features of the prohibition measure, including the
Minister's power to declare persons to be prohibited employers, requirements in relation to
proportionality of the prohibition and the duration of the prohibition, and promoting
employer compliance with relevant laws.
This objects clause is supported by other amendments to the measure, in particular the
inclusion of criteria to be considered in making a prohibited employer declaration and the
intended maximum duration of a prohibition linked to the type of migrant worker sanction,
described further below.
Amendments to migrant worker sanctions
The amendments will ensure that 'migrant worker sanctions', being the triggers for the
consideration of imposing a prohibited employer declaration, would encompass court
orders and enforceable undertakings relating to contravention of any civil remedy
provision, as defined in s 539 of the Fair Work Act.
Currently, the Bill provides that only a subset of Fair Work Act civil remedy provisions
could trigger the prohibition measure, with others able to be prescribed by regulation.
14
These amendments will address stakeholder concerns about the exclusion of certain Fair
Work Act civil remedy provisions, including sexual harassment and general protections.
The amendments provide that contraventions established under s 550 of the Fair Work
Act, which provides that a person 'involved in' a contravention is taken to have
contravened that provision, are included. The amendments will also ensure that
contraventions involving non-traditional employment relationships are captured, by
removing the requirement that a non-citizen must be an employee of the person (or in
some cases a prospective employee or former employee) at the time of the relevant
contravention.
These amendments ensure that accessorial liability and non-traditional employment
relationships are included, which will assist in mitigating anti-avoidance risks The
amendments will help to ensure proper accountability through the employment chain and
prevent actors from evading being susceptible to prohibition orders, for example through
'phoenixing' activity.
Matters to be considered when making a prohibition declaration
The amendments specify mandatory matters relevant to the Minister's decision to make a
prohibited employer declaration on the face of the Migration Act, instead of leaving these
matters to be prescribed in the Migration Regulations. The matters that the Minister must
consider in deciding whether to make a prohibition declaration include the nature and
severity of the non-compliance; the impact of the non-compliance on individuals affected
by the non-compliance and on the relevant industry; the impact of making a declaration on
other employees, services in the community, and the industry as a whole; whether the non-
compliance was intentional, reckless or inadvertent; the employer's history of compliance
and non-compliance; the time passed since the non-compliance; and the employer's
response to the non- compliance.
The list of matters has been developed in consultation with a number of government and
non-government stakeholders to ensure it is robust, fair and proportionate - and it can
achieve the policy intent.
Duration of prohibition
The amendments provide for maximum periods that can be specified for a prohibited
employer declaration, being 5 years for contravention of a civil penalty provision, 10 years
for nearly all other offences, and no maximum period for offences relating to slavery,
slavery-like practices or trafficking in persons under Division 270 or 271 of the Criminal
Code. The objects clause also clarifies that the duration of the prohibition is to be
proportionate to the person's misconduct. Within this framework decision makers have the
tools to impose a prohibition that is proportionate to the nature of the non-compliance, and
which appropriately protects temporary migrant workers from employers who have
engaged in serious, deliberate or repeated exploitation of temporary migrants.
Human rights implications
These amendments engage the following rights:
• Right to work and the right to just and favourable conditions of work - Articles 6
and 7 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR)
15
• Right to freedom from slavery and servitude - Article 8 of the International
Covenant on Civil and Political Rights (ICCPR)
• Right to privacy in Article 17 of the ICCPR.
Rights relating to just and favourable conditions of work
The amendments to the Migration Amendment (Strengthening Employer Compliance) Bill
engage Article 7 of the ICESCR, which states:
The States Parties to the present Covenant recognize the right of everyone to
the enjoyment of just and favourable conditions of work which ensure, in
particular:
(b) Safe and healthy working conditions [ ... ]
The amendments seek to further promote rights to just and favourable conditions of work.
Criminal offences
The amendments to the criminal offences provide an inclusive definition of the term
'arrangement in relation to work' to ensure the scope of the offence captures holistically a
range of exploitative behaviours known to have adversely affected temporary migrant
workers' rights to safe and healthy working conditions.
Without limiting the scope, the examples provided demonstrate that both work related and
non-work related have an impact on rights relating to just and favourable conditions of
work. The definition and examples recognise that there is a power imbalance between
temporary migrant workers and those allowing them to work, and the need to explicitly
focus on behaviours that seek to exploit that power imbalance.
Prohibition measure
The amendments to the prohibition measure include considerations to inform the
Minister's decision to make a prohibited employer declaration. These amendments
recognise the impact of the non-compliance on temporary migrant workers and others in
the workplace, and through the application of the prohibition, they seek to uphold
standards of safe and healthy working conditions by protecting temporary migrant workers
from those employers for an appropriate period.
The amendments to the relevant Fair Work Act triggers (migrant worker sanctions) also
help to uphold safe and healthy working conditions by ensuring more comprehensive
protection for migrant workers by including anti-avoidance measures and setting out a
range of additional Fair Work Act civil penalty provisions that can trigger consideration of
the prohibition, including sexual harassment. The amendments further enhance the
protections in the Bill by ensuring unscrupulous employers, who have engaged in unsafe
and unfair behaviours cannot circumvent the prohibition measure.
The prohibition may have some broader workforce impacts. For example, if an employer
is suffering labour shortages, and that employer is highly dependent on temporary migrant
workers to meet demand, the inability to employ additional temporary migrant workers
may have a negative impact on the existing workers (through workload pressures or the
16
ongoing viability of the business itself).1 While this could have unintended consequences
for existing workers, the prohibition decision is a discretionary decision and the matters
for consideration included by the amendments explicitly draw attention to consequences
for existing workers to inform decisions about whether to impose the prohibition and the
duration of the prohibition. To this end, the working conditions of all workers potentially
affected by the measure are core parts of the consideration.
The Bill aims to combat the misuse of Australia's migration program and the exploitation
of migrant workers. The measures in the Bill, together with the amendments to the Bill,
seek to protect temporary migrant workers from unscrupulous employers. In doing so,
these measures should positively enhance just and favourable working conditions for
temporary migrant workers by targeting employers who are non-compliant with their
workplace obligations or who are misusing the visa status of those workers to exploit
them.
Rights relating to freedom from slavery and servitude
Article 8 of the ICCPR states:
No one shall be held in slavery; slavery and the slave-trade in all their forms shall
be prohibited. No one shall be held in servitude. No one shall be required to
perform forced or compulsory labour...
Through the proposed criminal offences, this Bill seeks to address potential gaps in
existing laws that seek to address the issue of modern slavery.
The definition provided in the amendments explicitly identifies behaviours associated with
issues of modern slavery, including the withholding of a person's passport.
The inclusion of the definition and the explicit references to behaviours associated with
modern slavery remove any doubt about the seriousness of such behaviours and the need
to ensure temporary migrant workers will not be subject to those behaviours.
The amendments to the Bill therefore further promote the rights relating to freedom from
slavery and servitude.
Right to privacy
As noted in the Statement of Compatibility with Human Rights that accompanied the Bill,
as well as in the response to the further questions of the Parliamentary Joint Committee on
Human Rights, the Government considers that the publication of employers who are
subject to a prohibition declaration is necessary to protect migrant workers from
employers who have engaged in unscrupulous work practices and to deter employers from
engaging in such practices.
The publication of employers who are subject to a prohibition declaration engages and
may limit the right to privacy. The amendments to the Bill will set out a range of
additional civil penalty provisions that may trigger consideration of a prohibition,
1
It is important to note that the employer can employ other workers, including Australian citizens and permanent residents. The
employer may need to consider how it can attract those other workers.
17
removing the need to prescribe triggers through the Migration Regulations. This provides
greater certainty, clarity and transparency to employers and migrant workers.
The amendments clarify that the objects of the provisions relating to the prohibition
measure are to protect temporary migrant workers from being exposed to employers or
workplaces that have engaged in serious, deliberate or repeated exploitation of temporary
migrant workers.
The amendments to the Bill will also introduce further safeguards, on the face of the
Migration Act, relating to the matters that must be taken into account when considering
the making of a prohibition declaration. These matters include, but are not limited to, the
nature and severity of the non-compliance and the employer's history of compliance and
non-compliance. The amendments also set a maximum period for a prohibition
declaration, being 5 years for contravention of a civil penalty provision, 10 years for
nearly all other offences and no maximum period for offences relating to slavery, slavery-
like practices or trafficking in persons under Division 270 or 271 of the Criminal Code.
The objects clause further clarifies that imposing such a prohibition, including the duration
of such a prohibition, is to be proportionate to the person's misconduct.
These amendments are further intended to ensure that the prohibition, and its duration, are
proportionate to the nature and severity of the non-compliance, which helps to ensure that
interferences with the privacy rights of employers would not be arbitrary.
Conclusion
The amendments to the Migration Amendment (Strengthening Employer Compliance) Bill
2023 are compatible with human rights as they protect the human rights of vulnerable
migrant workers in Australia and introduce additional safeguards relevant to the privacy
rights of employers.
The Honourable Andrew Giles MP
Minister for Immigration, Citizenship and Multicultural Affairs
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