Migrant workers in Australia occupy a structurally vulnerable position in the labour market. Temporary visa holders—including international students, working holiday makers, and skilled regional visa holders—are over‑represented in industries with elevated rates of wage theft, injury, and non‑compliance: horticulture, hospitality, meat processing, cleaning, and ride‑share delivery. The Fair Work Ombudsman (FWO) 2023–24 Annual Report, tabled in October 2024, recorded 34,675 requests for assistance from visa holders, a 14.7% increase on the previous reporting period. Of those, 2,841 matters proceeded to formal dispute resolution, and the FWO recovered $509 million in unpaid wages and entitlements for all workers, with migrant workers accounting for a disproportionate share of litigated outcomes. On the workplace health and safety side, Safe Work Australia’s Key Work Health and Safety Statistics Australia 2024 (released 5 September 2024) confirmed that workers born overseas experienced a serious injury claim rate of 6.4 claims per 1,000 employees, compared with 5.2 for Australian‑born workers. The regulatory architecture that governs these two domains—Fair Work Act 2009 (Cth) and the model Work Health and Safety (WHS) laws—applies equally to migrant workers regardless of visa status. Enforcement activity has sharpened since the passage of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (assented 14 December 2023) and the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (assented 26 February 2024), which introduced criminal penalties for intentional wage underpayment and expanded the definition of employment to capture certain gig‑economy arrangements. This article sets out the enforceable rights, the institutional pathways for redress, and the practical constraints that shape outcomes for migrant workers navigating the Australian work rights and safety system in 2025.
1. The Legal Architecture: Fair Work Act and Model WHS Laws
1.1 Coverage and Jurisdiction
The Fair Work Act 2009 establishes the national workplace relations system. It covers the majority of private‑sector employees in Australia, including temporary visa holders employed by Australian entities. The Act sets the National Minimum Wage, the National Employment Standards (NES), and the framework for modern awards and enterprise agreements. As of 1 July 2024, the National Minimum Wage is $24.10 per hour, or $915.90 per 38‑hour week (Fair Work Commission Annual Wage Review 2023–24, decision issued 3 June 2024). Casual employees covered by the NES receive a 25% loading in lieu of paid leave entitlements.
Work health and safety is regulated primarily by state and territory legislation based on the model WHS Act developed by Safe Work Australia. The model Act has been adopted in all jurisdictions except Victoria, which operates under the Occupational Health and Safety Act 2004 (Vic). The harmonised framework imposes a primary duty of care on persons conducting a business or undertaking (PCBUs) to ensure, so far as is reasonably practicable, the health and safety of workers. The definition of “worker” under section 7 of the model WHS Act is broader than “employee” and captures labour‑hire workers, contractors, and volunteers. For migrant workers on temporary visas, the WHS duty applies irrespective of whether the employment arrangement complies with migration law.
1.2 The Closing Loopholes Reforms and Criminal Wage Theft
The Closing Loopholes legislative package introduced two changes of direct relevance to migrant workers. First, from 1 January 2025, intentional underpayment of wages or entitlements constitutes a criminal offence under the amended Fair Work Act. The offence carries maximum penalties of 10 years’ imprisonment for individuals and fines of the greater of $7.825 million or three times the value of the underpayment for body corporates. Second, the amendments empower the Fair Work Commission to set minimum standards for “employee‑like” workers in the gig economy, including those performing work through digital platforms. The FWO confirmed in its Statement of Regulatory Intent: Wage Theft (published 18 December 2024) that it will prioritise matters involving visa holders, large‑scale systematic underpayment, and employers who have previously been the subject of compliance notices.
1.3 Visa Condition 8107 and Its Interaction with Work Rights
Many temporary visa holders are subject to visa condition 8107 (or its equivalent), which restricts the number of hours a visa holder may work. For Student (subclass 500) visa holders, work is limited to 48 hours per fortnight during course sessions (reinstated from 1 July 2023 after a temporary COVID‑era relaxation). A common employer tactic involves threatening to report a worker to the Department of Home Affairs for breaching work‑hour conditions if the worker complains about underpayment or unsafe conditions. The Department of Home Affairs’ Protocol for Reporting Visa Holders Who Report Exploitation, updated 1 July 2024, states that the Department will generally not cancel a visa where a person has made a credible complaint to the FWO or a WHS regulator, and where the visa holder has complied with the terms of their visa to the best of their ability. The protocol does not confer immunity, but it creates a formal administrative safeguard that the FWO and community legal centres can cite in representations.
2. Workplace Health and Safety: Rights, Duties, and Enforcement
2.1 The Primary Duty of Care and Worker Rights
Under the model WHS Act, a PCBU must provide a work environment free of risks to health and safety, so far as is reasonably practicable. This duty extends to providing safe plant and structures, safe systems of work, adequate information and training, and monitoring of workplace conditions. Workers have the right to cease unsafe work under section 84 of the model Act if they have a reasonable concern that carrying out the work would expose them to a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard. A migrant worker who exercises this right is protected from adverse action under the general protections provisions of the Fair Work Act (Part 3‑1), which prohibit dismissal or detriment for exercising a workplace right.
Workers also have the right to elect a health and safety representative (HSR) where requested by a worker, and to be consulted on matters that affect their WHS. In practice, migrant workers in small, non‑unionised workplaces rarely access HSR mechanisms. Safe Work Australia’s Psychological Health and Safety in the Workplace guidance (updated March 2024) identifies migrant workers as a cohort at elevated risk of psychosocial hazards including excessive workload, low job control, and workplace bullying, often compounded by language barriers and precarious visa status.
2.2 Reporting and Regulatory Response
Each state and territory WHS regulator operates a confidential incident reporting line. Notifiable incidents—death, serious injury or illness, or a dangerous incident—must be reported immediately by the PCBU. Workers may also report directly. The regulator may deploy inspectors to enter workplaces, issue improvement or prohibition notices, and initiate prosecutions. In 2023–24, state and territory regulators completed 285 successful WHS prosecutions, with total fines of $21.3 million (Safe Work Australia, Comparative Performance Monitoring Report, 17th edition, released 5 December 2024).
Migrant workers often hesitate to report safety breaches for fear of visa cancellation or employer reprisal. The FWO and state WHS regulators have entered into bilateral Memoranda of Understanding that permit intelligence sharing where a workplace exhibits both underpayment and safety non‑compliance. The FWO’s Horticulture Inquiry Report 2024 (published 28 November 2024) found that 41% of audited horticulture employers had contravened both wage and WHS obligations, and that workers on the Pacific Australia Labour Mobility (PALM) scheme and Working Holiday (subclass 417) visa were the most affected.
2.3 Workers’ Compensation Entitlements
Workers’ compensation schemes are state‑based and generally cover all “workers,” regardless of visa status, if the injury arises out of or in the course of employment. An injured migrant worker is entitled to weekly payments, medical and rehabilitation expenses, and lump‑sum compensation for permanent impairment. The entitlement does not depend on the lawfulness of the employment arrangement. A worker whose employer has not taken out a compulsory workers’ compensation policy may still claim through the relevant state‑based nominal insurer. The Department of Home Affairs has confirmed that claiming workers’ compensation does not, of itself, breach visa conditions or trigger visa cancellation (Department of Home Affairs, Fact Sheet: Visa Holders and Workplace Rights, last updated 12 February 2025).
3. Wage Recovery and the Fair Work Ombudsman
3.1 Lodging a Complaint and the Investigation Pathway
A worker who believes they have been underpaid may lodge a complaint with the FWO online, by telephone through the 13 13 94 line (with interpreter services available in over 300 languages), or in person at an FWO office. The FWO assesses complaints using a triage model: high‑harm matters involving vulnerable workers, large underpayments, or systemic non‑compliance are prioritised for investigation. The FWO’s Compliance and Enforcement Policy (effective 1 July 2024) identifies temporary visa holders as a priority cohort.
The FWO may issue a compliance notice requiring an employer to calculate and pay outstanding entitlements. Failure to comply with a compliance notice attracts a pecuniary penalty of up to $9,390 for an individual and $46,950 for a body corporate per contravention. In 2023–24, the FWO issued 4,872 compliance notices and commenced 137 litigations (FWO Annual Report 2023–24). The FWO also administers the small claims process in the Federal Circuit and Family Court of Australia for claims up to $100,000, a jurisdiction that does not require legal representation and operates with reduced procedural formality.
3.2 The Role of Community Legal Centres and Unions
Migrant workers may access free, independent legal advice through community legal centres (CLCs) funded by the Commonwealth Community Legal Services Program. Specialist employment law CLCs, including JobWatch (Victoria, Queensland, Tasmania) and the Employment Rights Legal Service (New South Wales), provide casework and representation for migrant workers. The Migrant Workers Centre (Victoria) and the Migrant Workers Taskforce (national, established 2016, made permanent in 2024) offer multilingual outreach and referrals. Union membership is open to all workers regardless of visa status, and unions may initiate proceedings on behalf of members. The Australian Council of Trade Unions (ACTU) Migrant Workers Strategy 2024–2026, released 10 October 2024, commits to establishing dedicated migrant worker hubs in five capital cities by mid‑2025.
4. Intersection with Migration Law: Protections and Risks
4.1 The Assurance Protocol and Visa Cancellation Safeguards
The Department of Home Affairs’ Assurance Protocol for Visa Holders Reporting Workplace Exploitation (effective 1 July 2024) provides that where a temporary visa holder has made a credible complaint to the FWO, a state or territory WHS regulator, or a relevant union or CLC, the Department will generally not cancel the visa on the basis of a breach of work‑related visa conditions if:
- the visa holder has cooperated with the regulatory process;
- the breach is minor or was compelled by the employer; and
- the visa holder otherwise meets visa requirements.
The protocol does not apply to breaches unrelated to work conditions, such as failing to maintain course enrolment for a student visa. It also does not prevent the Department from refusing a subsequent visa application on character or compliance grounds, though an adverse migration history that arises solely from reporting exploitation may be treated as a mitigating factor.
4.2 The Workplace Justice Visa
The Migration Amendment (Workplace Justice Visa) Regulations 2024, which commenced on 24 July 2024, created the Workplace Justice Visa (subclass 408). This visa allows temporary visa holders who have experienced workplace exploitation and who are assisting, or intend to assist, an FWO investigation or court proceedings to remain lawfully in Australia for up to 12 months. The visa carries full work rights and does not require employer sponsorship. Applicants must provide a certificate from the FWO confirming that the person is assisting with an investigation or proceeding. As of 31 December 2024, the Department had granted 187 Workplace Justice Visas (Department of Home Affairs, Visa Statistics: Workplace Justice Visa, published 17 January 2025).
5. Practical Pathways and Institutional Resources
5.1 Documenting Employment and Keeping Records
The Fair Work Act requires employers to issue pay slips within one working day of pay day and to keep accurate employee records for seven years. A migrant worker should retain:
- a copy of the signed employment contract or letter of offer;
- every pay slip;
- bank statements showing wage deposits;
- rosters, timesheets, or screenshots of shift‑allocation apps;
- text messages or emails discussing pay, hours, or conditions; and
- photographs of the workplace, equipment, and safety hazards.
The FWO’s Record My Hours app (available in 18 languages as of February 2025) allows a worker to log hours and compare pay received against the applicable award rate. The app generates a report that can be submitted directly to the FWO.
5.2 Accessing Interpreter Services and Multilingual Information
The FWO website publishes information in over 40 languages, including factsheets on the National Minimum Wage, award coverage, and the complaints process. The Translating and Interpreting Service (TIS National) is available to workers contacting the FWO at no cost. Safe Work Australia and state WHS regulators maintain translated guidance on hazard identification, reporting procedures, and workers’ compensation in the top 10 community languages.
5.3 Industry‑Specific Risks and Current Enforcement Priorities
Horticulture. The FWO’s Horticulture Showcase 2024 (published 30 October 2024) reported that 58% of audited farms in the Murray‑Darling Basin had underpaid pieceworkers, with an average underpayment of $3,842 per worker. The pieceworker provisions of the Horticulture Award 2020 require that a pieceworker be paid at least the minimum hourly rate for the hours worked; if piece rates do not meet that floor, the employer must make a top‑up payment.
Hospitality. Unpaid trial shifts, cash‑back arrangements, and systematic underpayment of penalty rates remain prevalent. The FWO’s Fast Food, Restaurants and Cafés Campaign 2024 (final report issued 15 November 2024) recovered $14.2 million for 9,800 workers, 62% of whom were temporary visa holders.
Gig Economy. The Closing Loopholes amendments empower the Fair Work Commission to set minimum standards for digital platform workers. As of March 2025, the Commission has issued a draft order for the road transport sector; a final order is expected by 30 June 2025. Platform workers who believe they have been incorrectly classified as independent contractors may seek a determination from the Commission or lodge a sham contracting complaint with the FWO.
Actionable Steps for Migrant Workers
- Verify your pay against the applicable award or agreement. Use the FWO’s Pay and Conditions Tool (updated 1 July 2024) to identify the correct classification, minimum hourly rate, and penalty rates. If underpaid, generate a record using the Record My Hours app and lodge a complaint with the FWO online or by calling 13 13 94.
- Report safety hazards immediately. Notify your supervisor or HSR in writing. If the hazard presents an immediate risk, exercise your right to cease unsafe work and contact the WHS regulator in your state or territory. Document the hazard with photographs and contemporaneous notes.
- Engage with a community legal centre or union before your visa status becomes a barrier. CLCs can advise on the interaction between your visa conditions and your workplace rights and can make representations to the Department of Home Affairs under the Assurance Protocol.
- If you are assisting an FWO investigation, ask about the Workplace Justice Visa (subclass 408). Obtain a certificate of assistance from the FWO and seek migration advice from a registered migration agent or legal practitioner. The visa provides lawful status and work rights while the matter proceeds.
- Claim workers’ compensation if injured. Report the injury to your employer and seek medical attention immediately. Lodge a claim with the relevant state‑based workers’ compensation authority. The claim is valid regardless of visa status, and the Department of Home Affairs does not treat a compensation claim as a visa breach.