It was previously foreseen that a workplace justice visa was in the cards. This is a reality from 1 July 2024 with a Workplace Justice stream added to the subclass 408 – Temporary Activities visa.

There is no cost to making this application as the visa application charges are set to nil.

The purpose of the workplace justice visa is for temporary visa holders to seek redress for worker exploitation. By providing a visa to allow an aggrieved temporary visa holder, and their family members who are also in Australia in a combined application, to remain and work, they will be more inclined to pursue workplace justice. Otherwise, they may be economically pressured to give up their right to any legal course of action.

According to the regulations, this stream of visa will be granted for an initial period of 6 or 12 months.

To lodge a valid workplace justice visa, the applicants must be in Australia, but can be either in or outside Australia when the visa is granted.

While there is no sponsorship requirement for this stream, a certificate must have been issued by an entitled person, body or government entity, which has not since been revoked or set aside. This certificate must meet a kind of workplace exploitation determined by a legislative instrument, which has yet to be created, and to be issued such a certificate, there is prima facie evidence that there was workplace exploitation.

The visa applicant must be undertaking a workplace justice activity, and this is defined to mean the applicant is a complainant, victim, or alleged victim in criminal proceedings relating to the relevant workplace exploitation matter, or is a party to civil proceedings relating to the workplace exploitation matter, or is a complainant in a complaint made relating to the workplace exploitation matter.

Such proceedings must have commenced. This is designed to prevent vexatious applications.

The workplace justice stream is currently viewed as a pilot program and will initially run for two years and will be closely monitored for its effectiveness.

An issue facing temporary migrant workers from coming forward about worker exploitation is that they face having their visa cancelled for breaching their work-related visa condition. Therefore, additional protections to prevent visa cancellation for temporary migrant workers who have suffered workplace exploitation were added. These new changes were in conjunction with additional regulations created by the Migration Amendment (Strengthening Employer Compliance) Act 2024 (Cth) that comes into effect on 1 July 2024.

Effectively, it is not possible to cancel a visa when a temporary migrant worker:

• has been subject to a workplace exploitation matter by way of a certificate issued by a government entity or certifying entity with some qualifications on timeframes of that certificate,

• breached a work-related visa condition and there is a connection between this breach and the workplace exploitation matter,

• have committed in writing to complying with their visa conditions in the future and will take timely action in relation to the workplace exploitation matter.

A visa can, however, be cancelled for breaching a different visa condition.

There is also a discretionary protection from visa cancellation that accounts for factors similar to the above but can apply in a broader range of circumstances, such as where the non-discretionary protection has already applied and the visa holder failed to comply with their written commitment under the non-discretionary provisions.

With this new visa and protections in place, the question to be answered in the future is how endemic worker exploitation of temporary visa holders.