Melbourne Law School - Theses
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ItemUnderstanding the exploitation of temporary migrant workers in Australia: examining temporary labour migration from preFederation until 2020( 2021)This thesis concerns the treatment of temporary migrant workers in Australia. Within the last 20 years, migration programs have swung from facilitating and encouraging permanent settlement in Australia to embracing large-scale temporary labour migration. Certain sectors of employment have become reliant on temporary migrant workers — such as agriculture, hospitality, aged care, cleaning, security, and construction. This trend towards an embrace of temporary labour migration has been accompanied by growing concerns about the mistreatment of temporary migrant workers in Australia. Numerous reports, inquiries, and investigations have revealed widespread patterns of their abuse and mistreatment. The term ‘exploitation’ is routinely used to describe the abuse and mistreatment of temporary migrant workers in Australia, yet there has been little theoretical engagement with the concept of ‘exploitation’. It is rarely defined and is most often used to describe conduct that is already unlawful. I argue that there is a need to use the term with greater precision. I introduce the concepts of ‘transactional’ and ‘structural’ exploitation to examine the exploitation of temporary migrant workers in Australia, and to evaluate recent legal reforms. Additionally, the treatment of temporary migrant workers is seen as a very contemporary issue. It is seen as a departure from the norm of Australia as a nation of permanent settlers. Yet, there are important historical antecedents of contemporary temporary labour migration in Australia — the significance of which have been overlooked. I argue that Australia’s labour migration history foretells much about the nature of temporary labour migration today, especially concerning the role of the State in relation to the treatment of temporary migrant workers. Fundamentally, temporary migrant workers participate in the Australian labour market on an unequal basis. This is the case irrespective of whether their employers comply with existing workplace and other laws, or not. Temporary migrant workers are denied — to varying degrees, depending on the temporary labour migration program — access to social and economic rights which, I argue, are associated with social membership in the Australian community. This is not a contemporary phenomenon. As my thesis examines, temporary migrant workers have been subjected to various forms of exclusion from membership since before Federation. These are matters that pertain to the structure of temporary labour migration programs in Australia and concern the role of the State in relation to the treatment of temporary migrant workers, which I suggest have been underemphasised in recent literature on this subject. Accordingly, this thesis reveals the role of the State in relation to the exploitation of temporary migrant workers. I argue that the State enacts rights restrictions and exclusions based on their temporary migrant status that place temporary migrant workers under the threat of domination by their employers and other actors. This enables and facilitates exploitative transactions within the workplace. Further, the State enacts regulations that deprive temporary migrant workers from being able to develop and exercise their capacities as human beings, by treating temporary migrant workers as labour market inputs. This has occurred through the imposition of rights restrictions and exclusions, and prioritising the interests of employers and industry by favouring so-called ‘labour market’ imperatives. This thesis details the various ways that this has occurred, depending on the specific temporary labour migration program involved. Finally, this thesis explores Sarah Song’s ‘principle of reciprocity’ and suggests how this principle may be used to reorient discussions on how to address the exploitation of temporary migrant workers in Australia. This principle focuses on the relationship between the State and temporary migrant workers and concerns the question of how to ensure that temporary labour migration provides an authentic and sufficient benefit to the workers themselves.