Bassina Farbenblum

Migrant workers’ access to remedy for exploitation in Australia: the role of the national Fair Work Ombudsman

ABSTRACT Exploitation of temporary migrant workers in Australia has emerged as a significant human rights concern. However, limited attention has been paid to the State’s responsibility to ensure individual workers can access remedies for rights violations. This article considers whether Australia’s government agencies and institutional frameworks are suitable to enabling remedies for temporary migrant workers, and how well they deliver remedies to individuals in practice. Drawing on new empirical data, it focuses on the role of the national labour inspectorate, th Fair Work Ombudsman (FWO). FWO has undertaken various education, compliance and deterrence initiatives directed to systemically improving conditions for migrant workers. This article considers the extent to which individual migrant workers seek assistance from FWO to recover their personal unpaid wages, and the remedial outcomes of individual claims lodged with the agency. We illuminate structural factors contributing to migrants’ reluctance to engage with FWO, as well as factors contributing to low wage recovery rates for those who do contact FWO. We conclude that although these challenges are numerous and multi-layered, they are not all inevitable. Reforms should incorporate a new migrant-centred approach that recalibrates the risks and costs of seeking remedies against the likelihood of obtaining a just outcome.

Governance of Migrant Worker Recruitment: A Rights-Based Framework for Countries of Origin

A vast private recruitment industry has emerged across South and Southeast Asia, driven by exponential increases in migrant workers seeking temporary low-wage jobs abroad. Many workers encounter mistreatment which is traceable to systemic recruiter misconduct. Could origin countries better protect their citizens and render recruiters more accountable? This paper presents a novel, rights-based recruitment governance framework to tackle this challenge, based on empirical studies conducted across Asia. Section I examines recent regulatory efforts and illustrates their limited effectiveness absent such a guiding framework. Section II elucidates and applies the key elements of the framework, including: incorporation of human rights standards; enforceable legal rights and obligations; effective implementing institutions and processes; and empowered participation of migrant workers in key labour migration processes and decisions. Section III identifies structural and practical obstacles to regulatory enforcement that the framework addresses, creating necessary conditions for transnational market-based reforms and responsible recruitment within origin countries. Section IV concludes that the framework provides countries of origin with a feasible path to better protecting migrant workers within a sustainable development strategy.