Unfair Dismissal Law and Temporary Migrant Labour in Australia
| DOI | 10.22145/flr.46.1.2 |
| Published date | 01 March 2018 |
| Date | 01 March 2018 |
| Subject Matter | Article |
UNFAIR DISMISSAL LAW AND TEMPORARY MIGRANT
LABOUR IN AUSTRALIA
Joanna Howe, Laurie Berg and Bassina Farbenblum*
ABSTRACT
Increasing attention is being given to the exploitation of temporary migrant workers in
Australia, in particular in relation to wage underpayments. But very little focus has been
given to the ability of temporary migrant workers to access legal remedies under
Australian employment law. This article examines whether temporary migrant workers
are able to make and pursue a claim for unfair dismissal within the federal jurisdiction.
As unfair dismissal law seeks to protect job security and provides an essential check on
managerial prerogative, it is important that temporary migrant workers are able to
access this legal avenue to protect them from arbitrary dismissal. We argue there are
serious deficiencies in the application, coverage and content of federal unfair dismissal
law in relation to temporary migrant workers in Australia.
I INTRODUCTION
Arriving early be fore the start of his cleaning shift at a high office block in central
Sydney, Mr Raj Bista made a cup of coffee. He had been invited to do so ma ny times
before by office workers in that block a nd had even been shown how to use the coffee
machine. H owever, on this particular day, an officious manager confronted Mr Bista
about the coffee’s provenance. When he acknowledged making it onsite, she to ld him
that he was not allowed to do that and he apologised immediately. The office manager
reported the incident to Mr Bista’s employer Glad Group, a cleaning company, and
requested that Mr Bista no longer have access to the premises as a cleaner. Mr Bista was
hauled in before the cleaning c ompany’s management for an explanation and was
subsequently summarily d ismissed for theft of the coffee, despite having an otherwise
blemish-free and long-standing work record.
But for Australian unfair dismissal law,
1
there the story might have ended. However,
Mr Bista, an international student, successfully brought an unfair dismissal claim against
* Dr Joanna Howe, Associate Professor, Law School, University of Adelaide; Laurie Berg,
Senior Lecturer, Faculty of Law, UTS; Ms Bassina Farbenblum, Senior Lecturer, Faculty of
Law, UNSW. We also thank Irene Nikoloudakis for her research assistance, and the
anonymous referees for their helpful comments and suggestions.
1
A federal unfair dismissal law was introduced in 1993 by the Keating Labor Government as
part of its Industrial Relations Reform Act 1993 (Cth). Legal protection from unfair dismissal is
now enshrined in pt 3–2 of the Fair Work Act 2009 (Cth). Although employees who have been
dismissed can make an adverse action claim under the general protection provisions in pt 3–
20 Federal Law Review Volume 46
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Glad Group.
2
Despite it r arely being awarded, Mr Bista was given an order of
reinstatement and compensation for lost wages of $9187.20. Hatcher V-P held that Mr
Bista’s consumption of coffee was ‘trivial’ and ‘insignificant’, likening it to the drink of
a cool glass of water from the office water cooler on a hot summer’s day.
3
In his view, it
was certainly not enough to legitimise an otherwise exemplary worker’s summary
dismissal, particularly given the worker’s status as an international student placing him
in a ‘vulnerable position in the Australian labour market’.
4
Mr Bista’s dismissal and his abilit y to successful ly assail it underscore the
fundamental import of unfair dismissal law. Unfair dismissal la w, at its core, seeks to
protect workers’ job security.
5
By providing an essential check on managerial
prerogative, this law recognises the more vulner able position of the worker in
termination disputes. After all, it is a worker’s livelihood that is at stake, whereas in most
instances an empl oyer can readily replace one worker with another, especially in low-
waged jobs. Unfair dismissal law recognises the centrality of work to a person’s
existence and constrains the opportunity for it to be arbitrarily taken away.
6
This law
also provides an opportunity for workers to make known their perspective: in Mr Bista’s
case, the employer’s claim that he was a thief hurt his personal and professional
reputation. To have this claim rejected by the Commission restored his dignity.
7
Unfair
dismissal law also allows, albeit in fairly rare cases, a worker to be reinstated, thus
providing not only compensation for lost wages and entitlements but an opportunity to
return to work.
8
Finally, remedies aside, unfair dismissal protections can act as a
safeguard against breaches of other employment entitlements because an employer’s
threat of dismissal can deter workers from complaining about other employment rights
breaches. Indeed, the mere presence of unfair dismissal law has a powerful educative
function and an impact upon the ongoing power bala nce in the employment
1 of the Fair Work Act 2009 (Cth), this article focuses on their ability to make an unfair
dismissal claim in the federal jurisdiction in the event of dismissal.
2
This is not the first case involving Glad Group’s treatment of visa holders. The case of Fair
Work Ombudsman v Glad Group Pty Ltd [2012] FMCA 731 (21 August 2012) involved the
underpayments of 31 temporary migrant workers who were employed to perform cleaning
services by Glad Group.
3
Bista v Glad Group Pty Ltd [2016] FWC 3009 (19 May 2016) [43]–[44].
4
Ibid [54].
5
Joanna Howe, Rethinking Job Security: A Comparative Analysis of Unfair Dismissal Law in the UK,
Australia and the USA (Routledge, 2016) ch 1.
6
On the centrality of work, see John W Budd, The Thought of Work (Cornell University Press,
2011); Frederic Meyers, Ownership of Jobs: A Comparative Study (University of California Press,
1964); Wanjiru Njoya, Property in Work: The Employment Relationship in the Anglo-American
Firm (Ashgate Publishing, 2007); Bob Hepple, ‘A Right to Work?’ (1981) 10 Industrial L aw
Journal 65; Rosemary Owens, Joellen Riley and Jill Murray, The Law of Work (Oxford
University Press, 2nd ed, 2011) ch 1.
7
For an examination of the ideas of ‘justice’, ‘dignity’ and ‘autonomy’ as part of unfair
dismissal law’s normative mission, see Hugh Collins, Justice in Dismissal: The Law of
Termination of Employment (Oxford University Press, 1992).
8
For more on the remedy of reinstatement, see Joanna Howe, ‘Why Do So Few Employees
Return to their Jobs? In Pursuit of a Right to Work Following Unfair Dismissal’ in Virginia
Mantouvalou (ed), A Right to Work (Hart Publishing, 2014) 255; Frederic Meyers, Ownership
of Jobs: A Comparative Study (University of California Press, 1964).
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