New study goes deeper into international student exploitation

A UNSW Sydney and UTS project will lead the international education sector to respond to exploitation of international students in accommodation and at work.

The NSW Government through Study NSW has announced $78,670 in funding for a study to be led by UNSW Law Senior Lecturer Bassina Farbenblum and UTS Law’s Dr Laurie Berg.

It follows a 2017 report by Berg and Farbenblum, Wage Theft in Australia, that found a quarter of international students surveyed were earning $12/hr or less and 43% of students earned $15/hr or less – well below minimum wage.

“This study will give the international education sector a deeper understanding about the problem of student exploitation, finding out what information international students need to avoid exploitation at work and in their accommodation, and to address it when it happens,” Ms Farbenblum said.

See further at: http://humanrights.unsw.edu.au/news/new-study-goes-deeper-international-student-exploitation

Article: Lessons from the 7-Eleven Wage Repayment Program for remedying migrant worker exploitation in Australia

Temporary migrants comprise approximately 11% of the Australian workforce and are systemically underpaid across a range of industries. The most vulnerable of these workers (including international students and backpackers) rarely successfully recover unpaid wages and entitlements. In 2015, media revealed systematic exploitation of 7-Eleven’s international student workforce, reflecting practices that have since been identified in other major Australian franchises. In an unprecedented response, 7-Eleven head office established a wage repayment program, which operated until February 2017. As of mid-2017, the program had determined claims worth over $150 million — by far the highest rectification of unpaid wages in Australian history.

Drawing on interviews with international students and a range of stakeholders across Australia, this article uses 7-Eleven as a case study to illuminate systemic barriers that prevent temporary migrants from accessing remedies for unpaid entitlements within existing legal and institutional frameworks. We identify the unique attributes of the 7-Eleven wage repayment program that have contributed to its unusual accessibility and efficacy, and which may point to conditions needed to improve temporary migrants’ access to justice through state-based institutions and business-led redress processes.

Wage Theft in Australia: Findings of the National Temporary Migrant Work Survey

On 21 November, 2017, Laurie Berg and Bassina Farbenblum released the report Wage Theft in Australia: Findings of the National Temporary Migrant Work Survey. The survey is the most comprehensive study of wage theft and working conditions among international students, backpackers and other temporary migrants in Australia. It draws on responses from 4,322 temporary migrants across 107 nationalities of every region in the world, working in a range of jobs in all states and territories. Its unprecedented scope indicates that Australia has a large silent underclass of migrant workers, primarily made up of international students and backpackers, who are paid well below the minimum wage in at least 12 main industries.

Key findings include:

• Almost a third (30%) of international students and backpackers earned $12 per hour or less. This is about half the minimum wage for a casual employee in many of the jobs in which temporary migrants work.

• Underpayment was widespread across numerous industries but was especially common in food services, and especially severe in fruit and vegetable picking

• Severe underpayment was experienced by every major nationality of backpackers and international students in this country - at least one in five Americans, British, Indians, Brazilians, and Chinese earned roughly half the minimum wage.

• At least three quarters of underpaid international students and backpackers know that they’re being paid less than the minimum wage. One reason they stay in these jobs paying illegally low wages is that the overwhelming majority believe that everyone else on their visa is earning less than the minimum wage too. 

• A substantial number also work in conditions that could amount to criminal forced labour, including being required to pay cash back to their employer after receiving their wages, having their passport confiscated by their employer, or paying an upfront 'deposit' for their job

Article: migrant workers' access to justice in Australia and the Fair Work Ombudsman

In Migrant workers' access to justice for exploitation in Australia: The role of the national Fair Work Ombudsman, Bassina Farbenblum and Laurie Berg consider whether Australia’s government agencies and institutional frameworks are suitable to enabling remedies for temporary migrant workers, and how well they deliver remedies to individuals in practice.

Drawing on new empirical data, the article focuses on the role of the national labour inspectorate, the Fair Work Ombudsman (FWO). FWO has undertaken various education, compliance and deterrence initiatives directed to systemically improving conditions for migrant workers. This article considers the extent to which individual migrant workers seek assistance from FWO to recover their personal unpaid wages, and the remedial outcomes of individual claims lodged with the agency. We illuminate structural factors contributing to migrants’ reluctance to engage with FWO, as well as factors contributing to low wage recovery rates for those who do contact FWO. We conclude that although these challenges are numerous and multi-layered, they are not all inevitable. Reforms should incorporate a new migrant-centred approach that recalibrates the risks and costs of seeking remedies against the likelihood of obtaining a just outcome.

OSF funds Global Study on Digital Technology and Migrant Worker Protection

Bassina Farbenblum and Laurie Berg have been awarded funding from the Open Society Foundations to undertake the first global study of digital technology initiatives intended to improve migrant worker protection and access to justice. The study will explore the ways in which technology is being mobilised to transform the labour migration landscape and the host of risks and challenges that it brings.

Digital technology offers the promise to fill information gaps and empower workers in new and previously uncontemplated ways. Technological initiatives aiming to capture “worker voice” have proliferated in recent years. These include provision of information by migrant workers to businesses within supply chains, consumer reporting platforms that pool data on migrants’ experiences with recruitment agencies, apps which capture worker complaints and provide targeted information, referrals to support services, and technological innovations to assist evidence-gathering and legal claims-making. Apps and digital platforms have also emerged to promote safe migration by providing verifiable payment systems and recruitment processes for migrant workers.

The outcomes of many of these early stage initiatives have not yet been fully assessed. Farbenblum and Berg’s study will consider how effectively digital platforms are mitigating the problems encountered by migrant workers which the platforms are designed to address, and the contexts and conditions that enable these platforms to effectively deliver benefits to migrant workers. It will focus on a number of key emerging issues, including individual outcomes for workers, protections for workers who use the technology (e.g. privacy, data security, and informed consent), platform design, resourcing, and legal and other risks to platform hosts.

The study will culminate in a public report and global forum in London in 2018. These are intended to catalyse a more informed, rigorous and migrant-centred approach to development of digital interventions by NGOs, states, business, unions and donors globally. 

For more information, see Transformative Technology for Migrant Worker Protection.

Joint letter to the Migrant Worker Tasforce on key reforms

Laurie Berg and Bassina Farbenblum joined a number of unions, academic and other stakeholders in presenting Key reforms to address employer exploitation of temporary migrant workers: A joint letter to the Migrant Worker Taskforce. 

Key proposed reforms include:

• Reduce the vulnerability of temporary migrants through immigration law and visa reforms, and by introducing a 'firewall' between the Fair Work Ombudsman and Immigration Department

• Provide equal workplace rights to all temporary migrants including migrants working in breach of their visa, and prohibit discrimination based on migrant status

• Enable temporary migrants to effectively enforce their workplace rights including enhancing their ability to collectively organise (especially in unions); enabling easy access to support and effective and affordable enforcement avenues; and ensuring an enforcement authority dedicated to protecting their rights, working in concert with other well-resourced organisations

• Regulate high risk areas, including cash-in-hand industries, labour hire entities, sham contracting and accommodation providers

• Prevent employers profiting from law-breaking by making penalties sufficiently deterrent and placing the onus of proof on employers who do not provide payslips, without exception

• Ensure that beneficiaries of work are accountable when they are able to influence employment practices, including within supply chains and sub-contracting relationships

• Recognise that with the passage of time temporary migrant workers can become settled members of Australian society, at which point they should have greater access to services and a pathway to residence

New book: Migrant Rights at Work

Taking the treatment of temporary migrants working in Australia as a key case study, Laurie Berg's book explores how the influence of immigration law extends beyond its functions in regulating admission to and exclusion from a country. Berg examines the ways in which immigration law and enforcement reconfigure the relationships between migrant workers and employers, producing uncertain and coercive working conditions. This book raises important ethical questions about the differential rights of temporary and unauthorised migrant workers, and permanent residents, and where the line should be drawn between exploitation and legitimate employment.

Find out more at https://www.routledge.com/Migrant-Rights-at-Work-Laws-precariousness-at-the-intersection-of-immigration/Berg/p/book/9781138805552