Workplace Justice Visa

As of July 1, 2024, the Australian Government has enacted the Migration Amendment (Workplace Justice Visa) Regulations 2024. This regulation aims to address and mitigate workplace exploitation, ensuring fair treatment for temporary migrants in Australia. 

Key features of the Workplace Justice visa 

The Workplace Justice visa, classified under the Subclass 408 Temporary Activity visa, allows temporary migrants who have experienced workplace exploitation to remain in Australia for 6 to 12 months, with extensions of up to 4 years. This visa supports affected individuals by allowing them to work while they engage in activities aimed at pursuing justice, such as participating in legal proceedings or filing complaints related to workplace exploitation. 

Types of workplace exploitation covered 

The Migration (Workplace Justice Visa—LIN 24/055) Instrument 2024 outlines various forms of workplace exploitation: 

• Underpayment or non-payment of wages or other workplace entitlements: cases where employers fail to pay workers the agreed-upon wages or other legal entitlements. 

• Unlawful, unpaid, or underpaid training or trials: instances where workers are not paid or are underpaid during training periods or trials. 

• Up-front payment or deposit for a job: situations where workers are coerced into paying for a job opportunity. 

• Misclassification of workers as independent contractors instead of employees: employers wrongfully classify employees as contractors to avoid legal responsibilities. 

• Unlawful deductions from wages: employers making illegal deductions from workers’ wages. 

• Unfair dismissal: workers being dismissed without a fair reason or process. 

• Non-compliance with workplace health and safety requirements: employers failing to meet health and safety standards, putting workers at risk. 

• Bullying: bullying in relation to work or any arrangement related to work. 

• Sexual harassment: any form of sexual harassment in the workplace or related to work. 

• Discrimination: discrimination in relation to work or any arrangement related to work. 

• Coercion, undue influence or pressure, or misrepresentation: employers using coercion or misrepresentation to manipulate workers in relation to work or arrangements related to work. 

Eligibility and application process 

To apply for a Workplace Justice Visa, the applicant must either: 

• Hold a substantive visa that does not prohibit working in Australia and have 28 days or less remaining on that visa, or 

• Not hold a substantive visa, but the last-held substantive visa ceased no more than 28 days before the application and was not subject to conditions prohibiting work in Australia. 

Additionally, to qualify for the Workplace Justice Visa, an applicant must obtain a certification from a specified entity that validates the occurrence of workplace exploitation and justifies the need for the applicant to remain in Australia to address the issue. 

Certification process and authorised entities 

The Migration (Workplace Justice Visa—LIN 24/055) Instrument 2024 outlines the persons, bodies, or government entities that may issue a certificate as to a matter of workplace exploitation. These include: 

• Office of the Fair Work Ombudsman 

• Human Rights Law Centre 

• Migrant Workers Centre 

• Redfern Legal Centre 

• Western Community Legal Centre 

• Various associations and unions 

These certificates must detail specific exploitation issues to validate the need for the visa. To issue a certificate, the certifying body must hold a reasonable belief based on the evidence provided by the applicant that there is evidence of workplace exploitation. The certification process also involves ensuring that: 

• There is a connection between the exploitation and any visa breach. 

• The applicant is committed to resolving the exploitation matter and complying with visa conditions in the future. 

• The exploitation occurred within the preceding 12 months or was of a serious or systemic nature. 

Visa cancellation protections 

The Workplace Justice Visa includes protections against visa cancellation for visa holders who have breached their visa conditions due to workplace exploitation. This includes guarantees that their current visa will not be cancelled, and future visa applications or migration pathways will not be affected. This non-discretionary prohibition against visa cancellation applies when there is certification of exploitation by specified government or accredited third-party entities. 

Impact on employers and migrants 

The Workplace Justice Visa underscores the importance of protecting migrant workers’ rights. It reinforces the Australian Government’s commitment to human rights and fair labour practices. Employers must adhere to employment laws and maintain ethical standards to avoid legal issues. 

For more information or to discuss how these changes may affect you and your business, please contact our expert team at aisupport@absoluteimmigration.com to arrange an online consultation.