UNIONS NSW has called for the removal of the 88-day farm work requirement for working holiday visa holders extending their stay in Australia and of the 40-hour fortnightly work limit on international students.

Unions NSW has called for the farm work requirement imposed on working holiday visa (WHV) holders to secure their second and third-year visas to be abrogated in a report ‘Wage theft the shadow market: empowering migrant workers to enforce their rights’ released today.

The body has also called for permanent removal of the 40-hour fortnightly work limit on international students, replacement of the current employer sponsored visa framework with an industry sponsorship model and a clear, reliable pathway within all visas to permanent residency, including for international students.

These and other recommendations have come after Unions NSW reviewed more than 7000 ads written primarily in foreign languages across more than 10 industries. More than 1000 migrant workers also shared their experiences when working or applying for work in Australia.

The nation-wide audit has highlighted the improvements in the horticulture sector, with more ads offering hourly wages since the Fair Work Commission modified the horticulture award this year, imposing a minimum wage guarantee for piece rate workers. However, Unions NSW said there is still evidence of non-compliance, with 43 percent of the employers not paying a minimum wage guarantee for piece rate workers or only offering to pay it for a short period.

No work limits on internationals students supported by the NFF

National Farmers Federation chief executive officer Tony Mahar said a couple of the Unions NSW ideas have some merit, but some recommendations would make things worse.

“Ending work limits on international students, as an example, could help farmers access workers.

“Ending the farm work requirement for working holidaymakers without any viable alternative would be a disaster,” he said.

Mr Mahar said to address the farm workforce crisis, the industry’s focus should be on bringing more people into the sector to urgently fill tens of thousands of vacancies, not shutting down visa pathways.

“Every year this crisis drags on is another season where we grow less food and generate less income for Australia.

“Just as we’re focussed on addressing wage theft, it would be great to see the unions focus their attention on the broader workforce issues undermining the sector that supports their members.”

Mr Mahar said the NFF is always skeptical when unions tally numbers from online jobs boards and pass it off as credible research. However, he said the NFF acknowledged that wage theft has been an issue historically.

“That’s why we’ve been calling for criminal penalties for offending employers.

“The Federal Government’s new industrial relations laws will make it illegal to advertise roles for less than the legal rate of pay, and that’s a move we support,” he said.

Working holiday visa holder underpayment is standard – Unions NSW

UNIONS NSW said the underpayment of working holiday visa holders is a standard practice among many employers and the National Temporary Migrant Work Survey highlighted that 32pc of WHV holders were paid $12 an hour or less.

“Similarly, in 2021, a joint survey report by Unions NSW and the Migrant Workers Centre found that 78pc of respondents, the majority working holiday makers, were underpaid at some point when working in the horticultural industry; 80pc were underpaid when paid a piece rate and 61pc were underpaid when earning an hourly rate.”

UNIONS NSW said the Fair Work Ombudsman has found a continued level of exploitation of WHV holders associated with the requirement for them to perform 88 days of regional work and various inquiries have found that the 88 days of regional work has led to increased exposure of visa workers to: unsafe situations, longer working hours, hazardous work environments, discrimination and sexual harassment.

Since December 2015, WHV holders seeking a second-year visa have had to provide pay slips to the Department evidencing that wages earned during their 88 days of regional work are consistent with Award minimums.9 While the purpose of this regulation was to reduce exploitation, in practice, it has accentuated the dependence of WHV holders on employers providing pay slips10 in order to remain in the country and reduced the preparedness of workers to make formal complaints.

UNIONS NSW has also called for the abolishing of the visa condition preventing WHV holders from working for one employer for longer than six months. The six-month employment restriction on WHV holders limits their employment opportunities, 11 as employers are reluctant to invest time in training employees, which in turn restricts workers to casual or temporary employment, the body said. WHV holders who have worked for an employer for more than six months are violating their visa requirements and face the prospect of visa cancellation

The union body has also called for a firewall between the Fair Work Ombudsman and the Department of Home Affairs to protect migrant workers from deportation when they report exploitation. Unions NSW found more than 60pc of job advertisements in the top eight industries audited offered illegal rates of pay, below the relevant award wage.

Unions NSW secretary Mark Morey said it’s disturbing that employers were still targeting workers from culturally and linguistically diverse backgrounds.

“It’s alarming that employers unashamedly exploit and underpay vulnerable migrant workers, all while Australia experiences lagging migration rates and deals with claims of labour shortages.

“Our audit exposes this underbelly and demonstrates the need for the Commonwealth to bolster its efforts to stamp out bad employer behaviour while empowering workers to enforce their rights,” he said.

“It’s encouraging to see the union-led movement to change the horticulture award is making a positive impact on wages and employer conduct.

“But it’s clear it’s not enough,” he said.

“The visa system is broken and needs reform to strengthen the protection of migrant workers,” Mr Morey said.

“Right now, too many workers remain shackled to their employers due to the uncertainty of their visa status.”

Unions NSW also wants a new substantive visa to allow workers with outstanding claims for workplace entitlements to remain in the country with working rights until their claim has been settled.

In the horticulture sector, the Unions NSW analysis found more than 40pc of employers weren’t paying a minimum wage guarantee for piece rate workers, or only offered to pay it for a short period.

Also almost half of employers paying a minimum wage guarantee to piece rate workers threatened to sack their employees if they didn’t reach a picking target and more than a quarter of employers who weren’t guaranteeing minimum wage payment said they pay a lower rate to employees who don’t have a visa or have an expired visa.

Click here to read the full Unions NSW data analysis repot.