Combating Workplace Exploitation with Workplace Justice Visa (Subclass 408)
Has your employer underpaid you, discriminated against you or bullied you at work? Workplace exploitation is a serious concern in Australia, particularly for vulnerable migrant workers who may be relying on employer sponsorship to remain in the country. Given the power imbalance between sponsors and workers, it is not uncommon for employers to take advantage of their employees. Although temporary workers previously had to choose between losing their sponsorship and enduring the abuse, the government has recently taken steps to address this issue by introducing the Workplace Justice pilot program and creating a new stream under the Temporary Activity (Subclass 408) visa for this purpose.
What constitutes workplace exploitation?
Workplace exploitation includes various forms of misconduct, such as:
Underpayment or non-payment of entitlements
Unlawful unpaid work
Deposits for a job
Misclassification of workers as contractors
Unlawful deductions
Unfair dismissal
Non-compliance with health and safety requirements
Bullying
Sexual harassment
Discrimination
Coercion
As the definition is quite broad, if you feel that your employer has mistreated you, then you will likely be able to apply for this visa.
What if I don’t have an employer-sponsored visa?
Although workplace exploitation commonly occurs in situations where an employee holds a work-sponsored visa and cannot leave their job without breaching their visa conditions, this is not necessary to obtain a Workplace Justice visa. The main requirement is that you either hold or have recently held a substantive visa with work rights. The substantive visa must have at most 28 days left, or it must have ceased within 28 days of making the application.
Unfortunately, if you hold a bridging visa with work rights and fall outside of this 28-day period, you will not be eligible for a Workplace Justice visa.
Why do I need a certificate and who can grant one?
You will need to have a certificate issued by a certifying entity as evidence that you have experienced workplace exploitation. A list of certifying entities can be found under section 7 of LIN 24/055. You will need to give details of the matter and your employer as part of this certificate. Providing this information is not proof that you have been exploited, but it will allow you to remain in Australia while you pursue legal action against your employer. Essentially, you will need to show that you have an actual claim that can be made.
How long can I stay in Australia?
A Workplace Justice visa (Subclass 408) is a temporary visa that lasts for a period of 4 years. However, if your matter has not been resolved in those 4 years, then you can apply for a further Workplace Justice visa. As this visa is substantive, you will only be eligible to apply when it is close to expiring.
How Can Agape Henry Crux Help
With the introduction of the Workplace Justice Visa in hopes for temporary visa holders to remain in the country while pursuing legal action. 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. 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 and Cantonese. 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.
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