Exploring barriers to justice faced by migrant workers experiencing wage theft

21 Aug 2024

Wage theft can affect anyone. Unfortunately, wage theft in Australia is a common concept known by migrant workers; it’s not only known about, but also well documented.

In 2017, over 4,000 temporary visa holders were surveyed by the Migrant Justice Institute, to find at least a third earned less than $12 an hour. However, nine out of ten of these migrant workers who knew they were underpaid took no action to address the underpayment.

In June 2024, Justice Connect endorsed the Migrant Justice Institute’s report ‘All work, no pay – Improving the legal system so migrants can get the wages they are owed,’ which explores the experiences of migrant workers experiencing underpayment, and how the system can be improved to reduce their barriers to justice.

Read the report

The “Small Claims” jurisdiction is not working as intended for unrepresented migrant workers

The legal system is only as fair as it is accessible to everyone. Where a part of the community isn’t being served by the system, it needs to change.

The “Small Claims” jurisdiction of the Federal Circuit and Family Court of Australia (FCFCOA) is the main way underpaid employees can take their employer to court and claim back what they are owed. However, currently the system is only accessed by a small fraction of underpaid employees across the country. 

The report identifies four key barriers migrant workers face in accessing the “Small Claims” jurisdiction:

• Difficulty filing a wage claim: Without legal help, migrant workers experience difficulty identifying their legal entitlements, calculating their correct wages, raising the issue with their employer, and completing the small claims court application.
• Complex court proceedings: The complexity of court processes and requirements make wage claims harder to progress, particularly where English is a second language.
• Employers not paying judgements or settlements: Of the few migrant workers that win their case or achieve an out-of-court settlement, some may never be paid what they are owed if their employer disappears, liquidates or refuses to pay.
• Limited affordable legal help: Free legal services like Community Legal Centres can only help a small volume of workers, and private lawyers can often be too expensive, or not worth the cost unless the wage claim amount is large enough. As a result of these barriers, many migrant workers who experience wage theft in Australia are left with no way to claim back the wages they are owned, and can continue to be exploited by their employers.

Recommendations for Reform

To address these barriers, the report recommends:

• An increase in funding legal assistance providers to deliver legal services to migrant workers pursuing wage claims.
• Simplified Fair Work Commission processes and accessible court processes.
• Ensure that migrant workers get paid their wage judgements or settlements where the employer disappears, liquidates, or refuses to pay.

Read the full report at the Migrant Justice Institute’s website.