The Commonwealth Government has quietly released a Pilot scheme for a new visa stream designed to provide security for exploited workers with actionable claims.
Originally floated by the Australian Workers Union, the ‘Workplace Justice Visa’ effectively replaces what was known as the Assurance Protocol, and is now baked into the Migration Regulations as a stream of the subclass 408 visa program. The following headlines are instructive of the new measures:
- Purpose: The Workplace Justice Visa is designed to provide temporary migrants who have experienced workplace exploitation a pathway to remain in Australia and pursue justice.
- Eligibility: The visa is available to temporary migrants who are involved in criminal, civil, or complaint proceedings related to a certified workplace exploitation matter.
- Duration: The visa can be granted for an initial period of 6-12 months, extendable up to 4 years, depending on the complexity of the case and the individual’s needs.
- Work Rights: Visa holders are permitted to work while their case is ongoing.
Key eligibility criteria
- Applicants must be in Australia at the time of application and to have a certificate from an ‘authorised body’ confirming their experience of workplace exploitation.
- There appears to be no ‘qualifying’ visa that an applicant must hold / have held, but proscribed visas include, Permanent visas, Transit, and International Relations visas, as well Special Purpose visas (Royal visits, military, guests of Government etc.)
- Applicants must be already “undertaking a workplace justice activity,” in order to lodge an application. This includes participation in legal proceedings or complaints related to the exploitation.
- There is nothing to indicate that workplace action/s made prior to 1 July 2024, would not satisfy the visa criteria.
- Applicants must be in a class of persons specified in a legislative instrument made by the Minister, providing flexibility for future adjustments (Instrument TBC)
- Secondary applicants can be joined to the application.
- There is no Visa Application Charge payable to submit a valid application.
- Although the application must be submitted onshore, the visa allows for entry into Australia if the applicant was overseas at the time of grant.
Because of the informal nature of the subsumed Assurance Protocol, this new visa initiative is a significant step towards protecting vulnerable temporary migrants and addressing workplace exploitation. It removes some of the fear of visa cancellation for those seeking justice, encouraging reporting and enforcement of workplace laws.
However, the original recommendations by the AWU included access to the visa on the basis of an Accredited employment lawyer’s certification that the applicant merely had a prima facie case. By requiring an applicant to have formally implemented complaint processes / proceedings before lodging the visa application, it is open to question how many applicants will actually be willing to instigate those proceedings without any guarantee of immigration support.
Regrettably, this will be of particular concern to aggrieved applicants who have been following the Department’s trigger-happy approach to refusals across a large number of visa categories in recent times.
Other Potential Challenges:
- The success of the visa hinges on the effectiveness of the certification process and the capacity of authorised bodies to assess claims fairly and efficiently.
- At the time of writing, there is no Instrument prescribing ‘authorised bodies’ or the intended nature and scope of actions that could support the visa.
- The visa’s pilot nature may limit its initial reach, and it remains to be seen how the program will be scaled up and refined over time.
- There could be potential for misuse if individuals falsely claim exploitation to obtain the visa. Robust safeguards and monitoring mechanisms will be crucial to ensure integrity.
If you know a claimant in need of accessing the Pilot scheme, contact the Author directly at [email protected]
