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Published online by Cambridge University Press: 01 January 2025
Increasing attention is being given to the exploitation of temporary migrant workers in Australia, in particular in relation to wage underpayments. But very little focus has been given to the ability of temporary migrant workers to access legal remedies under Australian employment law. This article examines whether temporary migrant workers are able to make and pursue a claim for unfair dismissal within the federal jurisdiction. As unfair dismissal law seeks to protect job security and provides an essential check on managerial prerogative, it is important that temporary migrant workers are able to access this legal avenue to protect them from arbitrary dismissal. We argue there are serious deficiencies in the application, coverage and content of federal unfair dismissal law in relation to temporary migrant workers in Australia.
We also thank Irene Nikoloudakis for her research assistance, and the anonymous referees for their helpful comments and suggestions.
1 A federal unfair dismissal law was introduced in 1993 by the Keating Labor Government as part of its Industrial Relations Reform Act 1993 (Cth). Legal protection from unfair dismissal is now enshrined in pt 3–2 of the Fair Work Act 2009 (Cth). Although employees who have been dismissed can make an adverse action claim under the general protection provisions in pt 3– 1 of the Fair Work Act 2009 (Cth), this article focuses on their ability to make an unfair dismissal claim in the federal jurisdiction in the event of dismissal.
2 This is not the first case involving Glad Group's treatment of visa holders. The case of Fair Work Ombudsman v Glad Group Pty Ltd [2012] FMCA 731 (21 August 2012) involved the underpayments of 31 temporary migrant workers who were employed to perform cleaning services by Glad Group.
3 Bista v Glad Group Pty Ltd [2016] FWC 3009 (19 May 2016) [43]–[44].
4 Ibid [54].
5 Howe, Joanna, Rethinking Job Security: A Comparative Analysis of Unfair Dismissal Law in the UK, Australia and the USA (Routledge, 2016) ch 1CrossRefGoogle Scholar.
6 On the centrality of work, see Budd, John W, The Thought of Work (Cornell University Press, 2011CrossRefGoogle Scholar); Meyers, Frederic, Ownership of Jobs: A Comparative Study (University of California Press, 1964)Google Scholar; Njoya, Wanjiru, Property in Work: The Employment Relationship in the Anglo-American Firm (Ashgate Publishing, 2007)Google Scholar; Hepple, Bob, ‘A Right to Work?’ (1981) 10 Industrial Law Journal 65CrossRefGoogle Scholar; Owens, Rosemary, Riley, Joellen and Murray, Jill, The Law of Work (Oxford University Press, 2nd ed, 2011) ch 1Google Scholar.
7 For an examination of the ideas of ‘justice’, ‘dignity’ and ‘autonomy’ as part of unfair dismissal law's normative mission, see Collins, Hugh, Justice in Dismissal: The Law of Termination of Employment (Oxford University Press, 1992)CrossRefGoogle Scholar.
8 For more on the remedy of reinstatement, see Howe, Joanna, ‘Why Do So Few Employees Return to their Jobs? In Pursuit of a Right to Work Following Unfair Dismissal’ in Mantouvalou, Virginia (ed), A Right to Work (Hart Publishing, 2014) 255Google Scholar; Meyers, Frederic, Ownership of Jobs: A Comparative Study (University of California Press, 1964)Google Scholar.
9 Laurie Berg, Migrant Rights at Work: Law's Precariousness at the Intersection of Migration and Labour (Routledge, 2016).
10 Claudia Taranto, ‘Workers without Borders: The Rise of Temporary Migrant Labour’ ABC (online), 18 May 2015 <http://www.abc.net.au/radionational/programs/earshot/the-rise-of-temporary-migrant-labour/6472368>.
11 This article will refer to skilled workers as ‘457 visa holders’. However, at the time of writing, the federal Turnbull Government announced the abolition of the 457 visa and its replacement with a new Temporary Skills Shortage visa: Malcom Turnbull and Peter Dutton, ‘Putting Australian Workers First’ (Media Release, 18 April 2017).
12 Alexander Reilly, ‘Protecting Vulnerable Migrant Workers: The Case of International Students’ (2012) 25 Australian Journal of Labour Law 181; Alexander Reilly et al, ‘“I Choose to Stay Silent” International Students’ Engagement with the Fair Work Ombudsman’ (Report, Fair Work Ombudsman, 2016) 39.
13 Shamsher Kainth, ‘7 Eleven Exploitation Continues Despite Investigations’, SBS (online), 31 March 2016 <http://www.sbs.com.au/yourlanguage/punjabi/en/content/7-eleven-exploitation-continues-despite-investigations?cid=inbody:indianorigin-7-eleven-franchise-owner-penalised-over-200000>.
14 Interview with Gabrielle Marchetti, Principal Lawyer, Jobwatch and Western Community Legal Centre Representative (Melbourne, 30 March 2016).
15 For example, see the cases of Farzady v Monochromatic Engineering Pty Ltd [2015] FWC 7216 (20 October 2015) and Mezino v Baia the Italian Pty Ltd [2017] FWC 3692 (14 July 2017) where the employer's promise of sponsorship for permanent residency was withdrawn following dismissal.
16 Howe, Joanna, ‘Poles Apart? The Contestation between the Ideas of No Fault Dismissal and Unfair Dismissal for Protecting Job Security’ (2013) 42 Industrial Law Journal 122CrossRefGoogle Scholar; Stewart, Andrew et al, Creighton & Stewart's Labour Law (Federation Press, 6th ed, 2016) ch 23Google Scholar. In some cases the wording of the Australian provisions pertaining to unfair dismissal were identical to those found in the International Labour Organization's convention and recommendation: Creighton, Breen and Stewart, Andrew, Labour Law: An Introduction (Federation Press, 2nd ed, 1994) 203Google Scholar.
17 Industrial Relations Reform Act 1993 (Cth) pt VIA div 3.
18 For example, between 1997 and 1998 six Bills were passed through the House of Representatives seeking to extract businesses with less than 15 employees from the unfair dismissal laws. These failed to pass the Senate where the Coalition Government did not have a majority as they were unable to garner the support of the minor parties who held the balance of power. Additionally, between 2001 and 2004 the Coalition Government attempted on five further occasions to pass laws exempting businesses with more than 20 employees from the unfair dismissal system. Again, these Bills failed to become law. See also Pittard, Marilyn, ‘Unfair Dismissal Law: The Problem of Application to Small Business’ (2002) 15 Australian Journal of Labour Law 154Google Scholar.
19 Howe, above n 6.
20 [1971] AR (NSW) 95.
21 Fair Work Act 2009 (Cth) ss 382, 384, 386.
22 Ibid s 382.
23 Ibid s 388.
24 Ibid s 383(a).
25 Ibid s 383(b).
26 Ibid pt 5–1.
27 In 2014–15 there were 14,624 unfair dismissal applications made, which accounts for 42.8% of all applications made to the FWC in that year: Fair Work Commission, Annual Report 2014–15 (2015) 70 <https://www.fwc.gov.au/documents/documents/annual_reports/ar2015/fwc-ar-2015-web.pdf>.
28 Explanatory Memorandum, Fair Work Bill 2008 (Cth) 340.
29 Bernadette O’Neill, ‘General Manager's Report into the Operation of the First Three Years of the Fair Work Act 2009 (Cth) Unfair Dismissal System’ (Report, Fair Work Australia, December 2012) 30.
30 Compensation is capped at six months’ salary or half the amount of the high-income threshold immediately before the dismissal, whichever is lower: Fair Work Act 2009 (Cth) s 392(5)–(6).
31 Department of Immigration and Border Protection, Temporary Entrants and New Zealand Citizens in Australia (31 December 2015) Department of Home Affairs, 1 <https://www.homeaffairs.gov.au/ReportsandPublications/Documents/statistics/temp-entrants-newzealand-dec31.pdf>.
32 Department of Immigration and Border Protection, Subclass 457 Quarterly Report (30 June 2016) Department of Home Affairs, 1 <https://www.homeaffairs.gov.au/ReportsandPublications/Documents/statistics/457-quarterly-report-30-06-2016.pdf>.
33 Turnbull and Dutton, above n 12.
34 The number of new Work and Holiday visa (subclass 462) arrangements that commenced in recent years is at a historical high. Between 2014 and 2016, arrangements have commenced with China, Israel, Portugal, the Slovak Republic, Slovenia, Spain, Poland and Hungary. Arrangements have been signed but not yet commenced with Hungary and Vietnam. Department of Immigration and Border Protection, Working Holiday Maker Visa Programme Report (30 June 2016) Department of Home Affairs, 6 <https://www.homeaffairs.gov.au/ReportsandPublications/Documents/statistics/working-holiday-report-jun16.pdf>.
35 Ibid 34.
36 Mandatory visa condition 8547. Migration Regulations 1994 (Cth) regs 417.611, 462.611.
37 See generally Reilly, ‘Protecting Vulnerable Migrant Workers’, above n 13.
38 Department of Immigration and Border Protection, Student Visa and Temporary Graduate Visa Programme Six Monthly Report (30 June 2016) Department of Home Affairs, 7 <https://www.homeaffairs.gov.au/ReportsandPublications/Documents/statistics/student-temp-grad-programme-report-2015-16.pdf>.
39 A 2016 study found that four fifths of Australian farms relied on temporary migrants to perform low skilled horticultural work: Joanna Howe et al, ‘Sustainable Solutions: The Future of Labour Supply in the Australian Vegetable Industry’ (Final Report, Horticulture Innovation Australia, 2017).
40 Berg, above n 10, 96; Reilly, Alexander, ‘Low-Cost Labour or Cultural Exchange? Reforming the Working Holiday Visa Programme’ (2015) 26 Economic and Labour Relations Review 474CrossRefGoogle Scholar.
41 Fair Work Ombudsman, 2015–16 Fair Work Ombudsman Annual Report (2016) 1 <https://www.fairwork.gov.au/annual-reports/annual-report-2015-16>.
42 Baldwin, John and Davis, Gwynn, ‘Empirical Research in Law’ in Cane, Peter and Tushnet, Mark (eds), The Oxford Handbook of Legal Studies (Oxford University Press, 2003) 880Google Scholar.
43 These cases were found by doing a database search of the Commission's decisions database (<https://www.fwc.gov.au/search/documents>) using the terms: ‘unfair dismissal’ and ‘visa holder’; ‘457 visa’; ‘international student’; ‘working holiday’; and ‘485 visa’.
44 Although the Commission's Annual Report provides general data on unfair dismissal outcomes prior to arbitration, these are not disaggregated according to visa status.
45 For a discussion of the factors that contribute to the vulnerability of temporary migrant workers in Australia, see UNSW Human Rights Clinic, ‘Temporary Migrant Workers in Australia’ (Issues Paper, 15 October 2015) <http://www.law.unsw.edu.au/sites/law.unsw.edu.au/files/file_attach/migrant_workers_paper_final_artwork_16_oct.pdf>.
46 Joo-Cheong Tham, Submission No 3 to Senate Standing Committees on Education and Employment, The Impact of Australia's Temporary Work Visa Programs on the Australian Labour Market and on the Temporary Work Visa Holders, 29 April 2015, 10.
47 Interview with Catherine Hemingway, WEstjustice (Melbourne,18 August 2016).
48 Interview with Grant Courtney, Secretary, Australasian Meat Industry Employees Union (AMIEU) New South Wales (Sydney, 27 January 2016); Interview with Catherine Hemingway, WEstjustice (Melbourne, 18 August 2016); Fiona David, ‘Labour Trafficking’ (Research and Public Policy Series Paper No 108, Australian Institute of Criminology, 2010) xiii.
49 Interview with international students (Focus Group, Sydney, 13 October 2016); Reilly, ‘Protecting Vulnerable Migrant Workers’, above n 13, 184, 187.
50 Interview with Slater and Gordon Representative (Sydney, 1 November 2016).
51 These legal centres include community legal centres such as Kingsford Legal Centre and Redfern Legal Centre in Sydney and WEstjustice in Melbourne, which have specialist employment practices, as well as union-associated legal centres such as the Young Worker Legal Service in Adelaide and Melbourne. JobWatch is an employment rights legal centre which provides telephone and other assistance to Victorian workers and has a dedicated service for international students (www.jobwatch.org.au).
52 Kingsford Legal Centre, Submission No 87 to Productivity Commission, Workplace Relations Framework, 13 March 2015, 9; Interview with Catherine Hemingway, WEstjustice (Melbourne, 18 August 2016).
53 Interview with Slater and Gordon Representative (Sydney, 1 November 2016). Law firm Slater and Gordon has developed an online tool through which workers can submit information for an unfair dismissal claim, and if they meet jurisdictional requirements, can for $300 receive legal advice and assistance to draft an unfair dismissal application form. Firms such as Clayton Utz provide pro bono assistance with unfair dismissal matters for vulnerable clients but few if any are temporary migrants: Interview with David Hillard, Pro Bono Partner, Clayton Utz (Sydney, 29 February 2016).
54 Kainth, above n 14.
55 Interview with Catherine Hemingway, WEstjustice (Melbourne, 18 August 2016).
56 Interview with AMIEU South Australia Representative (Adelaide, 23 February 2016).
57 Australian case law is currently unclear as to whether work in contravention of visa conditions would lead to the invalidity and unenforceability of his or her employment contract, and result in loss of common law and statutory rights including unfair dismissal rights. See Clibborn, Stephen, ‘Why Undocumented Workers Should Have Workplace Rights’ (2015) 26(3) Economic and Labour Relations Review 465CrossRefGoogle Scholar; Berg, above n 10, XX.
58 Only in extremely rare circumstances can a working holiday maker be employed by the same employer for longer than six months: Migration Regulations 1994 (Cth) sub-regs 2.05(1)–(2). See also Department of Immigration and Citizenship, Australian Government, Working Holiday Maker Visa Program Report (2013) 4.
59 Interview with Kingsford Legal Centre Representative (Sydney, 5 February 2016).
60 Guddaye v Padmanabham Venkata Lakshmi Mannapuri [2014] FWC 463 (22 January 2014).
61 See also Stewart et al, above n 17, 775.
62 WEstjustice, ‘Not Just Work: Ending the Exploitation of Refugee and Migrant Workers’ (Final Report, 15 November 2016) 19.
63 Fair Work Act 2009 (Cth) s 384(2)(a).
64 See, eg, Il Migliore Pty Ltd v McDonald (2013) 236 IR 160.
65 Fair Work Ombudsman, ‘Inquiry into the Wages and Conditions of People Working under the 419 Working Holiday Visa Program’ (Visa Enquiry Report, October 2016) 21.
66 WEstjustice, above n 63, 126.
67 Howe, Joanna, ‘“Predatory Princes”, “Migration Merchants” or “Agents of Development”? An Examination of the Legal Regulation of Labour Hire Migration Intermediaries’ in Howe, John, Chapman, Anna and Landau, Ingrid (eds), The Evolving Project of Labour Law: Foundations, Development and Future Research Directions (Federation Press, 2017) 192Google Scholar.
68 Fair Work Act 2009 (Cth) s 386(2)(a).
69 Interview with Slater and Gordon Representative (Sydney, 1 November 2016).
70 Fair Work Act 2009 (Cth) s 383. The high income threshold is amended on an annual basis. In 2016–17 the high income threshold was $142 000. Although the high income threshold only excludes workers who are not covered by an award or an enterprise agreement: Ibid ss 382(1)(b)(i)–(ii).
71 Kevin Rudd and Julia Gillard, ‘Forward with Fairness: Labor's Plan for Fairer and More Productive Australian Workplaces’ (Australian Labor Party, April 2007) 19.
72 Fair Work Act 2009 (Cth) s 394(2).
73 Ron McCallum, Michael Moore and John Edwards, Towards More Productive and Equitable Australian Workplaces: An Evaluation of the Fair Work Legislation (Department of Education, Employment and Workplace Relations, 2012) 224 (recommendation 40).
74 Interview with Slater and Gordon Representative (Sydney, 1 November 2016). Whilst employers must provide to their employees a Fair Work Information Statement that provides information on the 21-day limit under s 124 of the Fair Work Act 2009 (Cth) it is unlikely that all employees read this carefully.
75 Interview with Catherine Hemingway, WEstjustice (Melbourne, 18 August 2016).
76 Interview with International Students (Focus Group, Sydney, 13 October 2016).
77 Fair Work Act 2009 (Cth) s 394(3).
78 (2011) FWAFB 975 (16 February 2011).
79 Ibid [13].
80 [2009] FWA 457 (2 October 2009) [28]–[29] (Commissioner Williams).
81 Ginnane v Ambergold Holdings Pty Ltd [2014] FWC 7650 (24 November 2014); Ginnane v Ambergold Holdings Pty Ltd [2015] FWCFB 522 (29 January 2015).
82 [2013] FWC 7272 (20 September 2013).
83 Ibid [19].
84 Ibid [22].
85 Ali v Industries Services Training Pty Ltd [2011] FWA 9177 (22 December 2011) [28].
86 Kanji v Green Home Green Planet Pty Ltd [2015] FWC 7058 (13 October 2015) [27].
87 Ibid [28]–[29].
88 Interview with Catherine Hemingway, WEstjustice (Melbourne, 18 August 2016).
89 Productivity Commission, Workplace Relations Framework, Report No 76 (2015) 568.
90 Ibid.
91 Ibid 569.
92 The FWC does not release data on applications lodged by applicants’ temporary visa status, nor on temporary migrants’ participation rates in conciliation or outcomes.
93 Interview with Grant Courtney, Secretary, AMIEU New South Wales (Sydney, 27 January 2016); Interview with Margaret McCabe and Bridget Akers, Legal Aid New South Wales (Sydney, 8 February 2016); Australian Council of Trade Unions, Submission No 167 to Productivity Commission, Workplace Relations Framework, 350; Productivity Commission, Australian Government, above n 92.
94 WEstjustice, above n 64, 133.
95 Fair Work Commission, above n 28.
96 Ibid.
97 Interview with Commission Member, Fair Work Commission (Sydney, 11 August 2016).
98 Ibid.
99 Interview with Gabrielle Marchetti, Principal Lawyer, Jobwatch and Western Community Legal Centre Representative (Melbourne, 30 March 2016).
100 The Productivity Commission in 2015 recommended that more detailed information should be provided about the processes used for conciliation and the aggregate outcomes of conciliation, possibly through an independent performance review: Productivity Commission, above n 92, 170.
101 Interview with Slater and Gordon Representative (Sydney, 1 November 2016); Interview with Gabbi Watson-Munro, WEstjustice (Melbourne, 30 March 2016); Interview with Commission Member, Fair Work Commission (Sydney, 11 August 2016).
102 Interview with Catherine Hemingway, WEstjustice (Melbourne, 18 August 2016).
103 Berg, above n 10, 75.
104 Interview with Commission Member, Fair Work Commission (Sydney, 11 August 2016).
105 Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20.
106 Ibid 28.
107 See also, Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).
108 Robbins v Oscars of Essendon Pty Ltd [2013] FWC 8411 (30 October 2013) [70] (emphasis added).
109 Farzday v Monochromatic Engineering Pty Ltd [2015] FWC 7216 (20 October 2015).
110 Ibid [64].
111 Ibid [66].
112 Clarito v Hitec Welding Pty Ltd [2014] FWC 9453 (24 December 2014) [28]; Garcia v Hitec Welding Pty Ltd [2014] FWC 9457 (24 December 2014) [67].
113 Garcia v Hitec Welding Pty Ltd [2014] FWC 9457 (24 December 2014) [69].
114 Antony Emurugat v Utilities Management Pty Ltd [2008] AIRC 1114 (11 July 2008) [33].
115 Liddell v Lembke (1994) 127 ALR 342, 360 (Wilcox CJ and Keely J).
116 Newtronics Pty Ltd v Salenga (Unreported, Australian Industrial Relations Court, Polites SDP, Acton DP and Smith C, 29 April 1999) 6, affirming the decision of the Full Bench in Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
117 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1555]–[1556].
118 For cases involving temporary migrant workers where this is deemed the case, see: Applicant v Microsoft Australia Pty Ltd [2012] FWA 3353 (19 July 2012); Clarito v Hitec Welding Pty Ltd [2014] FWC 9453 (24 December 2014); Robbins v Oscars of Essendon Pty Ltd [2013] FWC 8411 (30 October 2013); Zare v Arc Holdings (WA) Pty Ltd [2015] FWC 8322 (17 December 2015).
119 See, eg, Virata v NSW Motel Management Services Pty Ltd [2015] FWC 7932 (24 November 2015) [68]; Farzady v Monochromatic Engineering Pty Ltd [2015] FWC 7216 (20 October 2015) [70]; Webster v Mercury Colleges Pty Ltd [2011] FWA 1807 (8 April 2011) [47].
120 In general, the average and median compensation amounts awarded fall well below the statutory cap: Howe, above n 6.
121 The application of the compensation cap reduced this amount to $27 124.76 as it was limited to half the applicant's salary over a 26-week period: Farzady v Monochromatic Engineering Pty Ltd [2015] FWC 7216 (20 October 2015) [95] .
122 The application of the compensation cap reduced this amount to $27 500: Virata v NSW Motel Management Services Pty Ltd [2015] FWC 7932 (24 November 2015) [84].
123 See especially Joanna Howe and Rosemary Owens (eds), Temporary Labour Migration in the Global Era: The Regulatory Challenges (Hart Publishing, 2016) ch 1.
124 Whether this is also true in the case of an ‘outer limits’ contract that has a fixed duration, but may also be terminated on notice, is presently under review: Khayam v Navitas English Pty Ltd [2017] FWCFB 4092 (16 August 2017).