Left adrift? Migrant workers caught in the tide of COVID-19


Article by Sharmilla Bargon (Employment Practice, Redfern Legal Centre) and Regina Featherstone (Migrant Employment Legal Service, Redfern Legal Centre).

For employment lawyers, COVID-19 has moved our practice at a relentless and dizzying pace. Unanticipated business losses resulted in rapid job cuts, stand-downs, wage reductions and redundancies. We became increasingly concerned for our clients left adrift with no safety net, facing strict visa pressures with few legal rights: migrant workers and international students.

In this tumult, it was clear to us that swift, decisive action was needed. Community legal centres called on the federal government to shield vulnerable migrant workers from the fallout of the evolving crisis and urged businesses to retain employees.

This article highlights some of the particular challenges the pandemic crisis presents for migrant workers, arguing that extending supports to these workers is not only key to ensuring they do not fall between the cracks but also to helping the nation’s economic recovery.


Retain, not rehire

In response to comments made by the CEO of the Business Council of Australia, we urged the peak business body to encourage its members to rely on stand-down provisions, directing employees to welfare payments, and only terminating employment as an absolute last resort.

Once a worker has been dismissed, they have no certainty of reemployment. Without any prospect of stability, people are unable to plan ways to pay their rent or mortgage, feed their families or keep the lights on. For many workers, it is not simply a case of being rehired down the track: dismissal destroys the trust between workers and employers, often built up over years of service.

Termination of employment stops 'continuity of service', disentitling workers to hard-won long service leave benefits in the future. For some migrant workers, it triggers a need for a previously sponsored employee to get a job within 60 days – a serious challenge in these uncertain times.

Positively, we received confirmation from the Business Council that they are trying wherever possible to help companies retain staff.


Visa cancellation relief

Early in the crisis, in mid-March 2020, the federal government announced that international students were able to work beyond the 40-hours-per-fortnight cap on their visas. At this time, the Hon Alan Tudge MP indicated that the government would consider “providing flexibility with other temporary visas should the need arise.” Accordingly, we called on the federal government to take urgent action to protect the visas of those sponsored by their employers so that these workers can find other jobs if stood down, terminated or made redundant.

People on sponsored visas cannot work for another employer without breaching visa conditions. Further, if they lose their job, their visa conditions require them to find another sponsored role within 60 or 90 days, or risk breaching their visas and jeopardising their permanent residence pathway. Our clients were telling us that compliance with these visa conditions was forcing them into poverty and destitution.

Akshay* was working as a chef for a catering company on a sponsored visa. He was stood down without pay for one month after a COVID-19 business downturn. Akshay was told his employer was ‘about to go bust’ and could not afford to pay the 10 weeks’ annual leave he was owed. Akshay was willing to stack shelves at the local supermarket but could not work elsewhere without risking his visa. He could not go home: India, his home country had closed its borders. Akshay had been left with no way to support himself and feared he would soon go hungry.

*Name has been changed

Many international students and migrant workers like Akshay are simply not able to ‘make their way home’ as suggested by the federal government. Airlines are not flying; charter flights are prohibitively expensive; and borders are closed.

These Australian taxpayers are not eligible for the JobKeeper wage subsidy, the JobSeeker payment, or any other social security allowances.

As it stands, temporary visa holders who lose their jobs or are stood down have nowhere else to turn.

We recently wrote to the Minister for Families and Social Services urging that the federal government extend financial support to those on temporary visas.


Fair Entitlements Guarantee

Akshay was told that his employer couldn’t afford to pay him his annual leave. And yet, if the catering company were to become insolvent, all Australian citizens and permanent residents on the payroll would be able to claim their rightful entitlements back through the Fair Entitlement Guarantee (FEG) scheme.

They would each receive up to 13 weeks’ wages, notice, redundancy pay and unpaid annual leave and long service leave. Akshay, who had worked the same hours and paid the same tax as his colleagues, would not be entitled to access the scheme.

The inaccessibility of the FEG has been a longstanding issue for temporary visa holders. We hold concerns that this disparity will be exacerbated by the COVID-19 pandemic and the government’s legislative response package. There are over 900,000 workers on temporary visas servicing Australian businesses, often in insecure roles in industries that have been the hardest hit by COVID-19, such as hospitality and retail. If these businesses fail, many international students and migrant workers will not only lose a stable income, but – due to being unable to access FEG – will not be able to access wages already earned for hours worked prior to insolvency.

Temporary visa holders have limited legal recourse to assert their rights to be paid owed entitlements. These workers deserve the same fair and equitable treatment as their domestic counterparts. Now, more so than ever, it is essential that we protect the rightful fruits of their labour. We have urged the federal Attorney General to extend FEG eligibility to temporary visa holders to access to their wages and entitlements.


Supporting migrant workers is key to post COVID-19 economic recovery

Australian migration and education programs encouraged migrant workers and international students to come to Australia to learn and to fill gaps in the labour market. Migrant workers and international students have contributed substantially to the Australian economy, in the form of visa costs, wages earned, money spent, and taxes paid to the Australian Government. Their contribution is substantial – our educational export marketplace was worth $32 billion last financial year.

It is in Australia’s interest to support these experienced and highly skilled workers now, to ensure we are best placed to rebuild our economy as soon as circumstances allow.

Our proposal to offer temporary migrants visa cancellation relief would allow these visa holders to remain in Australia supporting businesses providing essential services as the CIOVID-19 crisis unfolds. When social gathering sanctions are lifted, the Australian economy will continue to rely on the expertise of these migrant workers to restore key industries including agriculture, tourism, hospitality and education.

As long as the COVID-19 pandemic and restrictions remain ongoing, it is our responsibility to support migrant workers and international students. We are being inundated with urgent requests for help from clients who are weeks away from homelessness and are already going hungry. We have urged the government to provide access to welfare benefits to international students and migrant workers, and to extend the FEG eligibility to all tax paying workers. We need swift action and decisive responses to avert a looming humanitarian crisis.

The advocacy work referenced in this article was undertaken variously in collaboration with Redfern Legal Centre’s International Student Legal Service NSW, Community Legal Centres NSW, Marrickville Legal Centre, and the Migrant Employment Legal Service.


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