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Experts: The legal system fails migrants who try to recover unpaid wages

Migrant Justice Institute 3 mins read

EXPERTS: THE LEGAL SYSTEM IS FAILING MIGRANTS WHEN THEY TRY TO RECOVER UNPAID WAGES

Widespread underpayment of migrant workers (and local workers) is now well-documented – and a new report shows how hard it is to recover those wages at court. All Work, No Pay urges the Federal Government to take urgent action to ensure the most vulnerable workers in our community can get redress.

The “small claims” court process was intended to be simple and accessible. The report finds that, in reality, it is virtually impossible for many workers to file and pursue a small claim without legal support. And affordable legal support is extremely limited.

While hundreds of thousands or potentially millions are underpaid every year, in 2022-23 only 137 people went to court. Findings from the Migrant Justice Institute's survey also bear this out: of 4000 migrant workers, over half were underpaid. Most knew this, but 9 in 10 did nothing. One went to court – but recovered none of their wages.

The report was authored by Migrant Justice Institute co-executive directors Associate Professor Laurie Berg (University of Technology Sydney), Associate Professor Bassina Farbenblum (UNSW Sydney), and researchers Fiona Yeh and Catherine Hemingway.

The All Work, No Pay report sets out a blueprint for reform, endorsed by 24 legal service providers and community and anti-trafficking organisations across Australia.

These reforms include:

  • More accessible, simpler court processes
  • A new pathway for wage claims at the Fair Work Commission, and potentially establishment of a new Fair Work Court
  • More funding for legal assistance
  • A new government guarantee scheme so workers get paid where the employer disappears, liquidates or refuses to pay

Associate Professor Laurie Berg says: “The court processes must be reformed to deliver migrant workers the wages they’re owed. It is currently almost impossible for many migrant workers to make and pursue wage claims without legal support”

Co-author Fiona Yeh says: “Workers’ right to be paid correctly under the law is illusory if they can’t enforce that right in court. This is critical to break the cycle of business impunity for exploitation.”

Associate Professor Bassina Farbenblum says: “For most migrant workers in Australia, the risks and costs of making a wage claim outweigh the slight prospect of success. Existing legal processes are complex and inaccessible. This incentivises employers to underpay their workers, assuming that workers will never hold them to account.”

Imogen Tatam, Senior Lawyer (Law Reform), Circle Green Community Legal, says: “Time and time again in our work we see migrant workers struggle with the small claims processes, or choose not to make claims at all because they are too daunted by the legal system. These are the clients that silently suffer underpayments and maltreatment when they are already facing the challenge of trying to build a life in a new and unfamiliar country.”

“Legal proceedings are daunting, difficult, and costly for everyone. For a migrant worker who is unfamiliar with Australian laws, the English language, and may be facing significant disadvantage in other aspects of their life, legal proceedings are near impossible. Despite evidence that migrant worker exploitation and underpayment is rife, this important Report by the Migrant Justice Institute clearly shows how the legal system is failing migrant workers, and outlines what the Federal government needs to do. The legal system should not, and cannot, be another enabler of migrant worker exploitation, where it should be preventing and rectifying the issue.”

Signatories 
The coalition of endorsers includes:

  • AMES Australia
  • Australian Catholic Anti-Slavery Network
  • Be Slavery Free
  • Circle Green Community Legal
  • Eastern Community Legal Centre
  • Human Rights Law Centre
  • Inner City Legal Centre
  • JobWatch
  • Justice Connect
  • Marrickville Legal Centre
  • Migrant Workers Centre
  • Office of the NSW Anti-Slavery Commissioner
  • Redfern Legal Centre
  • RMIT Business and Human Rights Centre
  • Settlement Council of Australia
  • SCALES Community Legal Centre
  • Sisters of Saint Joseph
  • South-East Monash Legal Service
  • Uniting Church in Australia
  • Synod of Victoria & Tasmania
  • UTS Student Legal Service
  • University of Newcastle Legal Centre
  • University of Melbourne Students’ Union Legal Service
  • WEstjustice
  • Youth Law Australia

 


Key Facts:

The Grattan Institute has estimated that between 490,000 and 1.26 million workers are paid below the national minimum wage in a year (based on 2018 data). (Grattan Institute, Short-Changed: How to Stop the Exploitation of Migrant Workers in Australia)

MJI’s previous survey found that out of 4,000 migrant workers, at least a third earned less than $12 an hour. Yet, 9 out of 10 of migrant workers who knew they were underpaid took no action to address the underpayment. A third reported that this was because the amount of work involved is simply too much to justify taking any action. (Migrant Justice Institute, Wage Theft in Australia and Wage Theft in Silence)

In 2022-23, only 137 applications claims were filed in the federal small claims court (Federal Circuit and Family Court of Australia, Annual Report 2022-23)


About us:

Migrant Justice Institute is a nonpartisan law and policy organisation that seeks to achieve justice for migrant workers in Australia and globally. A non-profit founded in 2021, we are Australia’s first (and only) national research and policy organisation dedicated to addressing migrant worker exploitation. We are dedicated to achieving fair treatment and justice for migrant workers globally, and in Australia.


Contact details:

Rebecca Payne
Comms Lead, Migrant Justice Institute
rebecca@migrantjustice.org | 0405 154 069

A/Prof. Laurie Berg
University of Technology Sydney
Co-Executive Director, Migrant Justice Institute
laurie@migrantjustice.org | 0433 525 745

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