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Short Stay Visa Holders and Occupational Trainees in Australia’s Labour Migration Program: Regulatory Challenges at The Apex of Temporariness

Published online by Cambridge University Press:  01 January 2025

Joanna Howe Open the ORCID record for Joanna Howe [Opens in a new window]  and
Irene Nikoloudakis
Joanna Howe
Affiliation:
Adelaide Law School, The University of Adelaide, Adelaide, SA, Australia
Irene Nikoloudakis
Affiliation:
Adelaide Law School, The University of Adelaide, Adelaide, SA, Australia
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Abstract

This article addresses a gap in the scholarly literature on the legal regulation of temporary labour migration by tracing the legislative history and regulation of work visas for short stay specialists and occupational trainees. By reason of their acute temporariness, both short stay workers and occupational trainees could be regarded as having a migration status that makes them vulnerable in their work relations. In addition, this vulnerability means they may accept terms and conditions that undercut domestic labour standards. Although the detailed legislative tracing of both visas reveals various attempts to re-regulate both visas in favour of greater scrutiny of employer requests for overseas labour, tightening access requirements and increasing enforcement and monitoring capacity, these have been largely incapable of preventing instances of egregious exploitation. These case studies on two little-known visas mirror the growing concerns around the integrity of Australia’s temporary labour migration program more generally and point to the myriad tensions, challenges and complexities inherent in the regulation of temporary labour migration programs around the globe.

Keywords

short stay visa holdersoccupational traineestemporary labour migrationmigrant workersprecarious work
Type
Articles
Information
Federal Law Review , Volume 50 , Issue 1 , March 2022 , pp. 40 - 61
Copyright
Copyright © 2022 The Author(s)

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References

1. For a useful definition of precarious work, see Gerry Rodgers, ‘Precarious Work in Western Europe: The State of the Debate’ in Gerry Rodgers and Janine Rodgers (eds), Precarious Jobs in Labour Market Regulation: The Growth of Atypical Employment in Western Europe (International Institute for Labour Studies, 1989) 1.

2. Barbara Deegan, Visa Subclass 457 Integrity Review: Final Report (Report, October 2008) <https://www.homeaffairs.gov.au/reports-and-pubs/files/457-integrity-review.pdf>; Laurie Berg, Migrant Rights at Work: Law’s Precariousness at the Intersection of Immigration and Labour (Routledge, 2016).

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5. Joanna Howe et al, ‘A Tale of Two Visas: Interrogating the Substitution Effect between Pacific Seasonal Workers and Backpackers in Addressing Horticultural Labour Supply Challenges and Worker Exploitation’ (2018) 31(2) Australian Journal of Labour Law 209.

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10. Department of Home Affairs, ‘Temporary Entrants Visa Holders in Australia’, Temporary Visa Holders in Australia (Dataset, 26 August 2021) <https://data.gov.au/dataset/ds-dga-ab245863-4dea-4661-a334-71ee15937130/details?q=Temporary%20visa%20holders%20in%20Australia>. This includes both primary and secondary visa applicants.

11. The electronic counterparts to the subclass 456 visa included the Sponsored Business Visitor (Short Stay) visa (subclass 459), Electronic Travel Authority (Business Entrant — Short Validity) (subclass 977), Electronic Travel Authority (Business Entrant — Long Validity) (subclass 956) and the eVisitor visa (subclass 651).

12. Neville Roach, Committee of Inquiry into the Temporary Entry of Business People and Highly Skilled Specialists, Business Temporary Entry: Future Directions (Report, 1995) (‘Roach Report’).

13. Simon Crean and Julia Gillard, Protecting Australia and Protecting the Australian Way: Labor’s Policy on Asylum Seekers and Refugees (Policy Paper, December 2002) 10, 11, citing Nick Bolkus, ‘Streamlining of Temporary Business Entry Arrangements’ (Media Release B 111/95, 2 November 1995).

14. Gao [2001] MRTA 3997, [39].

15. Crean and Gillard (n 14) 10.

16. Ibid 11.

17. Commonwealth, Parliamentary Debates, Senate, 11 September 2003, 14922 (Nick Sherry).

18. Joint Standing Committee on Migration, Parliament of Australia, Inquiry into Eligibility Requirements and Monitoring, Enforcement and Reporting Arrangements for Temporary Business Visas (August 2007) 24‐5.

19. Migration Institute of Australia, Submission No 9 to Joint Standing Committee on Migration, Inquiry into Eligibility Requirements and Monitoring, Enforcement and Reporting Arrangements for Temporary Business Visas (February 2007) 6. Similar concerns were echoed in a study commissioned by the European Australian Business Council in 2011, which found that 30 per cent of European companies in Australia stated they had missed out on business opportunities because they were unable to employ staff from overseas for short periods: European Australian Business Council, Review of Australian Temporary Work Visas (Issues Paper, August 2011) 4.

20. Stefanie Balogh, ‘“Black Slave” Ordered from Hospital’, The Australian (Sydney, 1 November 2002) 5.

21. Commonwealth, Parliamentary Debates, House of Representatives, 24 June 2003, 17340 (Julia Gillard, Shadow Minister for Immigration and Population).

22. Australian Manufacturing Workers’ Union, Submission No 40 to Joint Standing Committee on Migration, Inquiry into Eligibility Requirements and Monitoring, Enforcement and Reporting Arrangements for Temporary Business Visas (13 February 2007) 49.

23. [2013] FCCA 1177.

24. [2014] FCA 1365.

25. Roach Report (n 12) 5.

26. Commonwealth, Parliamentary Debates, Senate, 23 May 2011, 48 (Kruno Kukoc, First Assistant Secretary, Migration and Visa Policy Division).

27. Commonwealth, Parliamentary Debates, Senate, 23 May 2011, 49 (Kruno Kukoc, First Assistant Secretary, Migration and Visa Policy Division).

28. Commonwealth, Parliamentary Debates, Senate, 22 May 2006, 139 (Abul Rizvi, Deputy Secretary, Department of Immigration and Multicultural Affairs).

29. Visa Executive, ‘Australia — Revised Policy — Condition 8112 as at 7 March 2008’ (Web Page, 7 March 2008) <http://www.visaexecutive.com/latest-news/australia-revised-policy-condition-8112-as-at-7-march-2008>.

30. Commonwealth, Parliamentary Debates, Senate, 23 May 2011, 50 (Kruno Kukoc, First Assistant Secretary, Migration and Visa Policy Division).

31. Ibid.

32. Department of Immigration and Citizenship, Australian Government, Annual Report 2012–13 (2013) 92.

33. Department of Immigration and Citizenship, ‘Simpler Visas: Implementing a Simpler Framework for Temporary Residence Work Visas’ (Discussion Paper, December 2010) 4 (obtained by the authors via a freedom of information request); Explanatory Statement, Migration Amendment Regulation Bill 2013 (No 1) (Cth).

34. Migration Regulations 1994 (Cth) sch 2 cls 400.211, 400.213, 400.214.

35. ‘Temporary Work (Short Stay Activity) Visa (Subclass 400)’, Squire Patton Boggs (Web Page, 21 March 2013) 2 <https://www.squirepattonboggs.com/en/insights/publications/2013/03/temporary-work-short-stay-activity-visa-subclass>.

36. Migration Amendment Regulation 2013 (No 1) (Cth) sch 1.

37. Migration Legislation Amendment (2014 Measures No 2) Regulation 2014 (Cth) sch 1. See also Explanatory Statement, Migration Legislation Amendment (2014 Measures No 2) Regulation 2014 (Cth).

38. Migration Regulations 1994 (Cth) sch 2 cl 400.241.

39. Migration Amendment Regulation 2013 (No 1) (Cth) sch 1. Visa holders that were in the invited participant stream could not receive a salary, wages or other forms of remuneration except appearance fees, prize money, reimbursement for reasonable expenses incurred by the visa holder and payments made by a person who was overseas and employed the visa holder.

40. Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth) sch 1 pt 4.

41. Explanatory Statement, Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth).

42. Department of Immigration and Border Protection, Simplification of Temporary Work Visas (Regulation Impact Statement, 7 November 2011) 9 [4.5.2].

43. Fragomen, Submission No 21 to the Education and Employment References Committee, The Impact of Australia’s Temporary Work Visa Programmes on the Australian Labour Market and on Temporary Work Visa Holders (1 May 2015).

44. Department of Immigration and Border Protection, Procedures Advice Manual 3: Schedule 2 (to Visa 500) (Reissued 21 September 2018) [4.3.2].

45. Fragomen (n 44) 17.

46. Procedures Advice Manual 3: Schedule 2 (to Visa 500) (n 45) [4.3.1].

47. Law Council of Australia, Skilled Migration and 400 Series Visa Programmes Discussion Paper (Discussion Paper, 29 October 2014) 5.

48. Fair Work Ombudsman, ‘Taiwanese Company Faces Court for Refusing to Back-Pay Two Filipino Workers Almost $62,000’ (Media Release, 16 June 2016) <https://www.fairwork.gov.au/about-us/news-and-media-releases/2016-media-releases/june-2016/20160616-chia-tung-litigationmr>; Fair Work Ombudsman v Chia Tung Development Corp Ltd [2016] FCCA 2777.

49. Fair Work Ombudsman, ‘Filipino Worker Short-Changed More Than $20,000 in Just Three Months’ (Media Release, 13 February 2016) <https://www.fairwork.gov.au/about-us/news-and-media-releases/2016-media-releases/february-2016/20160213-reddot-eu>.

50. Adele Ferguson and Sarah Danckert, ‘ChAFTA has Opened Door to Unqualified Workers’, The Sydney Morning Herald (online, 4 June 2016) <http://www.smh.com.au/business/workplace-relations/chafta-has-opened-door-to-unqualified-workers-20160602-gpajfz.html>.

51. Fergus Hunter and Eryk Bagshaw, ‘“A New Frontier”: The Little-Known Alternative to the 457 Foreign Worker Visa’, The Sydney Morning Herald (online, 2 September 2017) <http://www.smh.com.au/federal-politics/political-news/a-new-frontier-the-littleknown-alternative-to-the-457-foreign-worker-visa-20170901-gy8p0j.html>; Fergus Hunter and Eryk Bagshaw, ‘Labor Calls for Urgent Action on Foreign Worker Visas after Reports of Exploitation’, The Sydney Morning Herald (online, 24 September 2017) <http://www.smh.com.au/federal-politics/political-news/labor-calls-for-urgent-action-foreign-worker-visas-after-reports-of-exploitation-20170922-gymsaz.html>.

52. Department of Home Affairs (Commonwealth), Statistics Regarding the Temporary Work (Short Stay Specialist) Visa (Subclass 400) <https://www.homeaffairs.gov.au/foi/files/2019/fa181100299-document-released.PDF>.

53. Department of Home Affairs (Commonwealth), ‘Subclass 400: Temporary Work (Short Stay Specialist) Visa’ (1 September 2021) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-work-400>.

54. Department of Immigration and Border Protection, ‘FA 17/01/00660: Visa Holders in Australia on the 400 Temporary Work (Short Stay Activity) Visa as at 30 June 2013; 30 June 2014; 30 June 2015 and 30 June 2016’ (15 February 2017) <https://www.homeaffairs.gov.au/foi/files/2017/FA170100660-document-released.pdf>.

55. Department of Home Affairs (Commonwealth), ‘Visa Simplification: Transforming Australia’s Visa System’ (Policy Consultation Paper, 31 July 2017) <https://minister.homeaffairs.gov.au/peterdutton/Pages/transforming-australias-visa-system-july17.aspx>.

56. Commonwealth, Parliamentary Debates, Senate, 7 September 2017, 6678 (Michaelia Cash, Minister for Employment and Minister for Women).

57. Atlassian, Submission to Department of Immigration and Border Protection, Visa Simplification: Transforming Australia’s Visa System (6 September 2017) 2.

58. Australian Maritime Officers Union, Submission to Department of Immigration and Border Protection, Visa Simplification: Transforming Australia’s Visa System (15 September 2017) 2‐3.

59. Wolfgang Babeck, Submission to Department of Immigration and Border Protection, Visa Simplification: Transforming Australia’s Visa System (12 September 2017) 1; Deloitte, Submission to Department of Immigration and Border Protection, Visa Simplification: Transforming Australia’s Visa System (13 September 2017) 5; CSL, Submission to Department of Immigration and Border Protection, Visa Simplification: Transforming Australia’s Visa System (15 September 2017) 3.

60. National Retail Association, Submission to Department of Immigration and Border Protection, Visa Simplification: Transforming Australia’s Visa System (15 September 2017) 2.

61. Ibid; Department of Home Affairs (n 10). This includes both primary and secondary visa holders.

62. The subclass 442 visa originated in the original version of the Migration Regulations 1994 (Cth) in 1994.

63. Komiatis v Education Training and Employment Australia Pty Ltd [2008] VMC 29. See also Nick McKenzie, ‘Nightmare for Nurses’, The Age (online, 21 January 2007) <https://www.theage.com.au/national/nightmare-for-nurses-20070131-ge43zr.html>.

64. Komiatis v Education Training and Employment Australia Pty Ltd [2008] VMC 29, [32]-[33].

65. Ibid [90].

66. Ibid.

67. Nicholas Blake, ‘Nursing Migration: Issues of Equity and Balance’ (2010) 18(2) People and Place 19.

68. Ibid 21.

69. Deegan (n 2) 88.

70. Ibid.

71. Joint Standing Committee on Migration (n 19) 31.

72. Ibid.

73. Ibid 7.

74. This took effect through the Migration Amendment Regulations 2009 (No 5) Amendment Regulations 2009 (Cth). For an analysis on the provisions of the Migration Amendment (Worker Protection) Act 2008 (Cth), see Joanna Howe, ‘The Migration Legislation Amendment (Worker Protection) Act 2008: Long Overdue Reform, But Have Migrant Workers Been Sold Short?’ (2010) 23(4) Australian Journal of Labour Law 251.

75. ‘NT and Kalymnos Working on Skills Program’, Premium Official News (online, 19 November 2014) <https://go.gale.com/ps/i.do?p=STND&u=adelaide&id=GALE|A390720203&v=2.1&it=r&sid=STND&asid=37a5c188>.

76. ‘Korean Students Engaged to Fill Orana Region’s Skill Shortages’, Dubbo Daily Liberal (online, 28 January 2015) <https://www.dailyliberal.com.au/story/2844120/korean-students-engaged-to-fill-orana-regions-skill-shortages/>.

77. Migration Institute of Australia, Submission No 1, Review of Skilled Migration and 400 Series Visa Programmes (October 2014) <https://www.mia.org.au/documents/item/547>.

78. Ibid 5.

79. Department of Home Affairs (n 10). This includes both primary and secondary visa holders.

80. Department of Home Affairs (n 10). This includes data for both primary and secondary visa holders.

81. Explanatory Memorandum, Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth) (‘Explanatory Memorandum, Migration Amendment Regulation’).

82. Explanatory Memorandum, Migration Amendment Regulation (n 81).

83. Ibid (emphasis added); Migration Regulations 1994 (Cth) regs 2.72A(13), (16).

84. Explanatory Memorandum, Migration Amendment Regulation (n 81); Migration Regulations 1994 (Cth) reg 2.72A(11).

85. University of Melbourne, Submission to Department of Immigration and Border Protection, Visa Simplification: Transforming Australia’s Visa System (15 September 2017) 5.

86. Department of Home Affairs, ‘Subclass 407: Training Visa’, Immigration and Citizenship (Web Page, 12 August 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/training-407>.

87. Anna Patty, ‘Australia’s International Reputation “At Risk” Over Treatment of Visa Workers’, The Sydney Morning Herald (online, 28 July 2019) <https://www.smh.com.au/business/workplace/australia-s-international-reputation-at-risk-over-treatment-of-visa-workers-20190715-p527a5.html>.

88. Anna Patty, ‘Luxury Blue Mountains Hotel Group Clawing Back Wages from Migrant Workers’, The Sydney Morning Herald (online, 7 July 2019) <https://www.smh.com.au/business/workplace/luxury-blue-mountains-hotel-group-clawing-back-wages-from-migrant-workers-20190703-p523od.html>.

89. Ibid.

90. Ibid.

91. Ibid.

92. Anna Patty, ‘Staff at Luxury Hotel Group Threatened after Speaking Out about Exploitation’, The Sydney Morning Herald (online, 9 July 2019) <https://www.smh.com.au/business/workplace/staff-at-luxury-hotel-group-threatened-after-speaking-out-about-exploitation-20190708-p5258b.html>.

93. Patty, ‘Australia’s International Reputation “At Risk” Over Treatment of Visa Workers’ (n 88).

94. Ibid.

95. See, eg, Laurie Berg and Bassina Farbenblum, Wage Theft in Australia: Findings of the National Temporary Migrant Work Survey (Report, November 2017); Bassina Farbenblum and Laurie Berg, Wage Theft in Silence: Why Migrant Workers Do Not Recover their Unpaid Wages in Australia (Report, October 2018); Bassina Farbenblum and Laurie Berg, ‘Migrant Workers’ Access to Remedy for Exploitation in Australia: The Role of the National Fair Work Ombudsman’(2017) 23(3) Australian Journal of Human Rights 310; Joanna Howe et al, Towards a Durable Future: Tackling Labour Challenges in the Australian Horticulture Industry (Report, 2019); Australian Government, Report of the Migrant Workers’ Taskforce (Commonwealth of Australia, Report, March 2019); Senate Education and Employment References Committee, A National Disgrace: The Exploitation of Temporary Work Visa Holders (Report, March 2016).

96. Joanna Howe and Rosemary Owens (eds), Temporary Migration in the Global Era: The Regulatory Challenges (Hart Publishing, 2016); Cathyrn Costello and Mark Freedland (eds), Migrants at Work: Immigration and Vulnerability in Labour Law (Oxford University Press, 2014); Martin Ruhs, The Price of Rights: Regulating International Labor Migration (Princeton University Press, 2013); Anna K Boucher and Justin Gest, Comparative Immigration Regimes in a World of Demographic Change (Cambridge University Press, 2018); Judy Fudge, ‘The Precarious Migrant Status and Precarious Employment: The Paradox of International Rights for Migrant Workers’ (2012) 34(1) Comparative Labor Law & Policy Journal 95.

97. For a critique of this demand-driven orthodoxy, see Joanna Howe, ‘Contesting Demand-Driven Orthodoxy: An Assessment of the Australian Regulation of Temporary Labour Migration’ in Joanna Howe and Rosemary Owens (eds), Temporary Migration in the Global Era: The Regulatory Challenges (Hart Publishing, 2016) 131.

98. This is similar to other employer-sponsored visas within the Australian program, such as the Temporary Skill Shortage visa (subclass 482) which provides for two to four-year visas for skilled temporary migrants, and workers from the Pacific either through the Seasonal Worker Program or the Pacific Labour Scheme, both of which are streams of the Temporary Work (International Relations) visa (subclass 403).

99. See also Chris F Wright, Dimitra Groutsis and Diane van Den Broek, ‘Employer-Sponsored Temporary Labour Migration Schemes in Australia, Canada and Sweden: Enhancing Efficiency, Compromising Fairness?’ (2017) 43(11) Journal of Ethnic and Migration Studies 1854.

100. See, eg, Thomas Gammeltoft-Hansen and Ninna Nyberg Sorensen (eds), The Migration Industry and the Commercialization of International Migration (Routledge, 2013).

101. See Australian Internships, ‘407 Training Visa’, Visa Information (Web Page) <http://www.internships.com.au/services/visa-options>.

102. See Fragomen, ‘New Visa Subclasses’ Temporary Visa Categories to be Consolidated and Simplified (Web Page) <https://www.fragomen.com/insights/alerts/temporary-visa-categories-be-consolidated-and-simplified>.

103. Jenna L Hennebry, ‘Bienvenidos a Canadá? Globalization and the Migration Industry Surrounding Temporary Agricultural Migration in Canada’ (2008) 35(2) Canadian Studies in Population 339.

104. See, eg, Joanna Howe, ‘“Predatory Princes”, “Migration Merchants” or “Agents of Development”? An Examination of the Legal Regulation of Labour Hire Migration Intermediaries’ in John Howe, Anna Chapman and Ingrid Landau (eds), The Evolving Project of Labour Law: Foundations, Development and Future Research Directions (Federation Press, 2017) 192; Joanna Howe et al, ‘A Critical Examination of the Relationship between Labour Hire Intermediaries and Growers in the Australian Horticulture Industry’ (2019) 32(1) Australian Journal of Labour Law 83.

105. Wright, Groutsis and van Den Broek (n 100).

106. For example, see Vosko’s work critiquing the vulnerability of temporary migrant workers and the scale of the enforcement challenge: Leah F Vosko, ‘Legal but Deportable: Institutionalized Deportability and the Limits of Collective Bargaining among Participants in Canada’s Seasonal Agricultural Workers Program’ (2018) 71(4) Industrial and Labor Relations Review 882; Leah F Vosko et al, ‘The Compliance Model of Employment Standards Enforcement: An Evidence-Based Assessment of its Efficacy in Instances of Wage Theft’ (2017) 48(3) Industrial Relations Journal 256.

107. Robert Mayer, ‘Guestworkers and Exploitation’ (2005) 67(2) Review of Politics 311; Merav Lichenstein, ‘Examination of Guest Worker Immigration Reform Policies in the United States’ (2005) 5(3) Cardozo Public Law Policy and Ethics Journal 692; Martin Ruhs, ‘The Potential of Temporary Labour Migration Programmes in Future International Migration Policy’ (2008) 145(1-2) International Labour Review 7.

108. Farbenblum and Berg, ‘Wage Theft in Silence: Why Migrant Workers Do Not Recover their Unpaid Wages in Australia’ (n 96).

109. Joo-Cheong Tham and Judy Fudge, ‘Unsavoury Employer Practices: Understanding Temporary Migrant Work in the Australian Food Services Sector’ (2019) 35(1) International Journal of Comparative Labour and Industrial Relations 31.

110. For an analysis of the most popular pathways to permanent residency from the permanent residency, see Productivity Commission, Migrant Intake into Australia (Inquiry Report No 77, 13 April 2016).

111. Peter Mares, ‘All Work, No Stay?’ SBS (online, 20 August 2018) <https://www.sbs.com.au/allworknostay/>; Peter Mares, Not Quite Australian: How Temporary Migration is Changing the Nation (Text Publishing, 2016).

112. Philip Martin, There is Nothing More Permanent than a Temporary Foreign Worker (Report, April 2001, Center for Immigration Studies) <https://cis.org/Report/There-Nothing-More-Permanent-Temporary-Foreign-Workers>.

113. Patty, ‘Australia’s International Reputation “At Risk” Over Treatment of Visa Workers’ (n 88).