Underpaid By Your Sponsor? Learn How to Enforce Your Workplace Rights
Workplace exploitation of temporary visa holders is a significant issue where employers prey upon vulnerable migrant workers who are afraid of having their visas cancelled. As they need to meet the work conditions of their visa, many individuals are effectively prevented from taking action against their employers, leading to underpayment and poor workplace conditions. With new legislative changes taking effect from July 2024 onwards, the Australian Government has made it safer for workers to speak up against exploitative employers without the fear of losing their visas.
What are the new legal changes for Workplace Exploitation?
The main changes are the introduction of a new Workplace Justice visa stream under the Temporary Activity Visa (Subclass 408), a safeguard against visa cancellation for individuals with work rights who take action against their employer, and a discretionary safeguard for individuals without work rights or who have breached other visa conditions. To prove that you have faced workplace exploitation, you will need to provide a certification from an employment lawyer under the Fair Work Ombudsman or a listed third-party organisation (found under LIN 24/057).
What is the new Workplace Justice (subclass 408) visa?
The new Workplace Justice visa (Subclass 408) allows temporary visa holders to remain in Australia at the end of their stay to pursue action for workplace exploitation.
Under this visa, you will have full work rights. It can last between 6 - 12 months, and you can reapply for another if your matter is still ongoing.
You are eligible for this visa if:
You held or hold a temporary visa with work rights that expired or will expire within 28 days
You provide certification of workplace exploitation from a listed government or third-party organisation
You can also apply for a substantive visa while you hold a Workplace Justice visa, allowing you to remain in Australia on a new visa after resolving your matter.
How can I get a certification of workplace exploitation?
You will need to provide evidence of your workplace exploitation claim by certifying it through either the Fair Work Ombudsman or an accredited third party. You should also report issues with workplace exploitation to the Department of Home Affairs as soon as possible. You will need to fill out a form that describes the details of your workplace exploitation and how it is connected with your breach of visa conditions.
Your certification will need to include:
A statement from the certifier (employment lawyer) that there is a reasonable belief that exploitation has occurred based on the evidence you have provided;
A statement from the certifier that you are committed to pursuing your rights in a timely manner; and
A statement from the certifier that there are adequate resources to investigate or resolve the matter
It is important to remember that the purpose of a Workplace Justice visa is to allow you to pursue your rights against your employer. Therefore, you will need to make sure that the time limits for doing so have not passed. If you are unable to take action against your employer, then you cannot be granted this visa.
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How Can Agape Henry Crux Help
If you have experienced workplace exploitation, please contact our team to represent to take action on your behalf and ensure that justice is served. At Agape Henry Crux, our Accredited Specialist Immigration Lawyers and our team of immigration lawyers and migration agents are specialised in handling highly complex matters. We can also provide guidance as to any further actions you can take if you wish to remain in Australia. You can book a consultation with one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or email us at info@ahclawyers.com.
We speak fluent English, Mandarin, Cantonese and Malay. If this isn’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
