Short Stay Visa Holders and Occupational Trainees in Australia’s Labour Migration Program: Regulatory Challenges at The Apex of Temporariness
| Date | 01 March 2022 |
| DOI | 10.1177/0067205X211066139 |
| Published date | 01 March 2022 |
| Author | Joanna Howe,Irene Nikoloudakis |
| Subject Matter | ARTICLES |
Article
Federal Law Review
2022, Vol. 50(1) 40–61
© The Author(s) 2022
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DOI: 10.1177/0067205X211066139
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Short Stay Visa Holders and
Occupational Trainees in Australia’s
Labour Migration Program:
Regulatory Challenges at The Apex
of Temporariness
Joanna Howe*and Irene Nikoloudakis**
Abstract
This article addresses a gap in the scholarly literature on the legal regulation of temporary labour
migration by tracing the legislative history and regulation of work visas for short stay specialists and
occupational trainees. By reason of their acute temporariness, both short stay workers and oc-
cupational trainees could be regarded as having a migration status that makes them vulner able in
their work relations. In addition, this vulnerability means they may accept terms and conditions that
undercut domestic labour standards. Although the detailed legislative tracing of both visas reveals
various attempts to re-regulate both visas in favour of greater scrutiny of employer requests for
overseas labour, tightening access requirements and increasing enforcement and monito ring ca-
pacity, these have been largely incapable of preventing instances of egregious exploitation. These
case studies on two little-known visas mirror the growing concerns around the integrity of
Australia’s temporary labour migration program more generally and point to the myriad tensions,
challenges and complexities inherent in the regulation of temporary labour migration programs
around the globe.
Keywords
short stay visa holders, occupational trainees, temporary labour migration, migrant workers,
precarious work
Received 22 October 2020
*Associate Professor in Law, Adelaide Law School, The University of Adelaide, Adelaide, SA, Australia. The author may be
contacted at joanna.howe@adelaide.edu.au
**LLB (Hons), BCom and BPsySc (Adel), Research Assistant, Adelaide Law School, The University of Adelaide, Adelaide, SA,
Australia.
Introduction
There is now considerable evidence of the precarity of temporary migrant workers employed in the
Australian labour market.
1
The extant literature examining this phenomenon has largely focused on
the precarity of temporary skilled migrant workers,
2
international students,
3
Working Holiday
Makers,
4
workers from the Pacific,
5
asylum seekers
6
and undocumented migrant workers,
7
and the
variegated migration programs for these visa holders which permit temporary entry into the
Australian labour market.
8
It is widely acknowledged that the raison d’ˆ
etr e for temporary migrant
workers’precarity is their temporariness. Temporariness is itself a diminution of rights and political
power and thus a key source of vulnerability in the workplace. Yet almost entirely absent from this
extensive scholarship on the precarity of visa holders within Australia’s temporary labour migration
program, is an analysis of temporary migrant workers on either short stay or trainee visas. These visa
holders are at the apex of temporariness within Australia’s temporary labour migration program.
Susceptible to a more intense commodification of their labour, these temporary migrant workers are
1. For a useful definition of precarious work, see Gerry Rodgers, ‘Precarious Work in Western Europe: The State of the
Debate’in Gerry Rodgers and Janine Rodgers (eds), Precarious Jobs in Labour Market Regulation: The Growth of
Atypical Employment in Western Europe (International Institute for Labour Studies, 1989) 1.
2. Barbara Deegan, Visa Subclass 457 Integrity Review: Final Report (Report, October 2008) <https://www.homeaffairs.
gov.au/reports-and-pubs/files/457-integrity-review.pdf>; Laurie Berg, Migrant Rights at Work: Law’s Precariousness at
the Intersection of Immigration and Labour (Routledge, 2016).
3. Alexander Reilly. et al, International Students and the Fair WorkOmbudsman (Report, March 2017); Alexander Reilly,
‘Protecting Vulnerable Migrant Workers:The Case of International Students’(2012) 25(3) Australian Journal of Labour
Law 181; Iain Campbell, Martina Boese and Joo-Cheong Tham, ‘Inhospitable Workplaces? International Students and
Paid Workin Food Services’(2016) 51(3) Australian Journal of Social Issues 279; Joanna Howe, ‘A Legally Constructed
Underclass of Workers?The Deportability and Limited Work Rights of International Students in Australia and the United
Kingdom’(2019) 48(3) Industrial Law Journal 416; Stephen Clibborn, ‘Multiple Frames of Reference: Why International
Student Workers in Australia Tolerate Underpayment’(2021) 42(2) Economic and Industrial Democracy 336.
4. Alexander Reilly. et al, ‘Working Holiday Makers in Australian Horticulture: Labour Market Effect, Exploitation and
Avenues for Reform’(2018) 27(1) Griffith Law Review 99; Joanna Howe and Irene Nikoloudakis, A Critique of the
Australian Working Holiday Programme: Options for Reform (Report, December 2017); Alexander Reilly, ‘Low-Cost
Labour or Cultural Exchange? Reforming the Working Holiday Visa Programme’(2015) 26(3) Economic and Labour
Relations Review 474.
5. Joanna Howe et al, ‘A Tale of Two Visas: Interrogating the Substitution Effect between Pacific Seasonal Workers and
Backpackers in Addressing Horticultural Labour Supply Challenges and Worker Exploitation’(2018) 31(2) Australian
Journal of Labour Law 209.
6. Alexander Reilly, ‘The Vulnerability of Safe Haven Enterprise Visa Holders: Balancing Work, Protection and Future
Prospects’(2018) 41(3) University of New South Wales Law Journal 871; Alexander Reilly, ‘Asylum Seekers in the
Community: The Importance of Work for Decent Life’(2016) 22(1) Australian Journal of Human Rights 1.
7. Elsa Underhill and Malcolm Rimmer, ‘Layered Vulnerability: Temporary Migrants in Australian Horticulture’(2016)
58(5) Journal of Industrial Relations 608; Stephen Clibborn, ‘Why Undocumented Immigrant Workers Should Have
Workplace Rights’(2015) 26(3) Economic and Labour Relations Review 465.
8. For a discussion of the various entry pathways and how these can be conceptualised, see Chris F Wright and Stephen
Clibborn, ‘Back Door, Side Door or Front Door? An Emerging De-Facto Low-Skilled Immigration Policy in Australia’
(2017) 39(1) Comparative Labor Law and Policy Journal 165; Tham, Campbell and Boese refer to visas for work and
non-work purposes as dedicated and de facto labour migration programs, respectively: see Joo-Cheong Tham, Iain
Campbell and Martina Boese, ‘Why is Labour Protection for TemporaryMigrant Workers So Fraught? A Perspective from
Australia’in Joanna Howe and Rosemary Owens (eds), Temporary Labour Migration in the Global Era: The Regulatory
Challenges (Hart Publishing, 2016) 173; see also Joanna Howe, Sara Charlesworth and Deborah Brennan, ‘Migration
Pathways for Frontline Care Workersin Australia and New Zealand: Front Doors, Side Doors, Back Doors and Trapdoors’
(2019) 42(1) University of New South Wales Law Journal 211.
Howe and Nikoloudakis 41
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