The 7-Eleven wage scandal in 2015 revealed the systemic vulnerability of migrants and international students to exploitation in Australian workplaces. As one example among many, international student Pranay Alawala was underpaid more than $30,000 by a 7-Eleven franchise in Brisbane. However, when he confronted his employer about his owed wages, the franchise’s lawyer sent him a letter threatening to report him to immigration for working more hours than his visa allowed.
For those on student visas, visa condition 8105 mandates that international students are only allowed to work up to 40 hours per fortnight while their course is in session. Whilst grappling with costly international student fees and living expenses, many international students struggle to find work due to their lack of Australian work experience, language difficulties, lack of local contacts and restricted working hours. Without other options, many students accept employers’ offers to work for more hours, but at below minimum wage – usually cash-in-hand.
Rather than occurring at big companies like 7-Eleven, the majority of this exploitation takes place in small businesses, especially in the retail and hospitality industry. In particular, employers usually speak the language and therefore are able to attract students who desire a workplace in which they can comfortably speak their native language.
According to a survey conducted by Sydney University business school academic Stephen Clibborn, out of 274 international students working part-time, 60 per cent were paid less than minimum wage, with 35 per cent paid $12 an hour or less. Amongst Chinese students, 73.5 per cent were paid less than minimum wage.
It’s clear that international students are being exploited. But why do the majority not report their employers?
Under the Migration Act 1958 (Cth), it is an offence to breach a visa condition that restricts the work one can perform (s 235(1)). By working more than 40 hours a fortnight, international students have breached visa condition 8105, and are therefore liable to visa cancellation and deportation (s 116(1)(b)). For students who have undertaken the daunting journey of moving to an unfamiliar country, and who often bear the emotional burden of fulfilling the hopes of their families back home, visa cancellation is an unimaginably high risk. The tradeoff is disproportionate: whilst a student risks losing their dreams, an employer most likely faces fines. At worst, the Redfern Legal Centre notes incidents where employers have gotten away without consequence because students were deported before their claim finished. Even when students request their legal wages, employers utilise the threat of visa cancellation or deportation to silence them, as in Alawala’s case. Currently, the law gives them legal backing.
Furthemore, if a student reports an employer for exploitation, it doesn’t only affect themselves. Employers will have to fire other employees because they cannot afford to hire, which means other international students will also lose their incomes, and probably struggle to find another job. Of course, reporting may also expose other international student workers to the risk of visa cancellation and deportation if they have also worked over the 40-hour work limit.
Obviously, the exploitation of international students is a systemic issue, and targeting employers who engage in exploitative wage theft would address the root of the problem. But in order to do so, students must report their employers.
To some extent, the Fair Work Ombudsman (FWO) has recognised how the law inhibits international students from reporting, with Natalie James assuring that students can seek assistance without visa cancellation, even if they have worked more than the 40-hour limit.
But international students need more than an ‘assurance’. A concrete guarantee would require providing definite deportation amnesty for students who report exploitation. Currently, the blanket policy of exposing all breaches to visa cancellation in section 116(1)(b) of the Migration Act, regardless of severity, nature or circumstance, increases students’ fear about reporting employers. This legislation should be reformed to reserve the penalties of visa cancellation and deportation only for serious breaches of visa conditions.
Furthermore, successful case examples have not been publicised by the FWO, increasing the fear that international students may have. Following a recommendation put forward by the University of Adelaide, the FWO should post examples of successful stories on its website and social media platforms to raise awareness about the legal ability of the FWO, and encourage international students to report exploitation.
Debating whether or not to remove the 40 hour working limit is another debate in itself – perhaps it is interesting that the government relaxed the work limit from March to May 2020 to account for the economic downturns of COVID-19. But at the very least, international students should feel safe to report exploitative work conditions, and shouldn’t have to fear losing their visa and the dreams that it enables.