Widespread underpayment of migrant and local workers has long been documented, but a new report highlights the difficulties faced in recovering those wages through the court system. “All Work, No Pay” urges the Federal Government to act swiftly to ensure the most vulnerable in our community receive redress.
The small claims court process, meant to be simple and accessible, is described in the report as nearly impossible for many workers to navigate without legal support, which is both scarce and expensive. Despite the large number of workers underpaid each year, only 137 people took their claims to court in 2022-23. The Migrant Justice Institute’s survey of 4,000 migrant workers revealed that over half were underpaid, with 90% taking no action. Only one person went to court and recovered none of their wages.
The report was authored by Associate Professor Laurie Berg (University of Technology Sydney), Associate Professor Bassina Farbenblum (UNSW Sydney), and researchers Fiona Yeh and Catherine Hemingway. It sets out a reform blueprint endorsed by 24 legal service providers, community, and anti-trafficking organisations across Australia.
The suggested reforms include:
- Simplifying court processes
- Creating a new pathway for wage claims at the Fair Work Commission and potentially a new Fair Work Court
- Increasing funding for legal assistance
- Establishing a government guarantee scheme to ensure workers are paid if employers disappear, liquidate, or refuse to pay
Associate Professor Laurie Berg emphasised the need for reform to ensure migrant workers receive their owed wages, stating, “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 highlighted the illusory nature of workers’ rights if they cannot enforce them in court. “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 pointed out the risks and costs of making a wage claim often outweigh the chances of success for most migrant workers. “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) at Circle Green Community Legal, noted the challenges migrant workers face with the small claims process. “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.”
Tatam further elaborated on the barriers migrant workers face, emphasising the daunting, difficult, and costly nature of legal proceedings, especially for those unfamiliar with Australian laws and the English language. “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.”
The coalition of endorsers includes organisations such as AMES Australia, the Australian Catholic Anti-Slavery Network, Be Slavery Free, Circle Green Community Legal, the Human Rights Law Centre, and many more dedicated to addressing migrant worker exploitation.
The Migrant Justice Institute, a nonpartisan law and policy organisation founded in 2021, seeks justice for migrant workers in Australia and globally. It is the only national research and policy organisation in Australia dedicated to addressing migrant worker exploitation, striving for fair treatment and justice for migrant workers worldwide.
Key facts from the report underscore the gravity of the situation. The Grattan Institute estimates that between 490,000 and 1.26 million workers are paid below the national minimum wage each year. Previous surveys by the Migrant Justice Institute found that at least a third of 4,000 migrant workers earned less than $12 an hour, with 90% taking no action due to the overwhelming work involved.
The stark realities presented in “All Work, No Pay” highlight an urgent need for systemic change to protect and support the rights of migrant workers in Australia.
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The "All Work, No Pay" report exposes the hardships of recovering unpaid wages for migrant workers, urging reforms to simplify court processes & ensure legal support. 😔⚖️💼👷♂️👩⚖️ #TheIndianSunhttps://t.co/GY2vh1BkJD
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