Immigrant Labour In Australia

CENTRE FOR EMPLOYMENT AND LABOUR RELATIONS LAW

August 2000

Working Paper No. 20 IMMIGRANT LABOUR IN AUSTRALIA: THE REGULATORY FRAMEWORK

Anthony O’Donnell and Richard Mitchell

ISSN 1321-9235

The Centre for Employment and Labour Relations Law gratefully acknowledges the support of the following major legal practices and organisations:

IMMIGRANT LABOUR IN AUSTRALIA: THE REGULATORY FRAMEWORK

CONTENTS 1. Introduction

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2. Immigration Control and Labour Market Demands: A Brief Historical Survey

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2.1

The Nineteenth Century Background

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2.2

From Federation to the Second World War

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2.3 The Postwar Decades 3. Recruiting Immigrant Labour: The Current Framework

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3.1. Independent Migrants

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3.2. Employer Nomination

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3.3. Temporary Entry

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4. Incorporating Immigrant Labour: Post-Arrival Services

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4.1

Income Support for Unemployment

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4.2

Job Placement

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4.3

Labour Market Programs

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4.4

The Recognition of Overseas Skills and Qualifications

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5. Incorporating Immigrant Labour: The Labour Law Response

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5.1

Trade Union Rights

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5.2

Wages and Conditions

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5.3

Equal Treatment and Non-Discrimination: Legislative Measures

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5.4

Illegal Immigrants and Work Rights

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6. Conclusion

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O’Donnell and Mitchell: Immigrant Labour in Australia: The Regulatory Framework

Immigrant Labour in Australia: The Regulatory Framework Anthony O’Donnell* and Richard Mitchell† 1. Introduction Since the end of convict transportation in the first half of the nineteenth century, immigration has been crucial to the development of Australia’s labour force. In the postwar period alone (up to 1981) immigration accounted for over half of the extra workers added to the labour force and today around a quarter of the labour force were born overseas, a high figure by OECD standards.1 The implications of this reliance on foreign-born labour have rarely been studied from a labour law perspective. We can suggest three reasons for this oversight. The first goes to the conceptualising of the discipline of labour law itself. Labour law’s preoccupation with problems which arise out of the legal regulation of employment has generally marginalised broader issues of labour market regulation.2 Thus, despite the pivotal role that immigration has played with regard to the size, constitution and skills of the labour force and the level and patterns of employment, the law relating to immigration — the law governing selection of immigrants, for example, or those post-arrival policies and programs directed at immigrants — has rarely been viewed as proper to the study of labour law.3 Equally, the extent to which the importation of immigrant labour has impacted on the traditional concerns of labour law (i.e., employment contracts, collective regulation of wages and conditions, trade unions) has generally been unexamined.4

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Centre for Employment and Labour Relations Law and Centre for Public Policy, The University of Melbourne. † Centre for Employment and Labour Relations Law, The University of Melbourne. 1 See J Collins, Migrant Hands in a Distant Land: Australia’s Post-war Immigration, Pluto Press, Sydney; OECD, Trends in International Migration, Continuous Reporting System on Migration Annual Report, Organisation for Economic Co-operation and Development, Paris, 1999. The figures tend to underestimate the labour market impact of immigration as they do not include those who left Australia after a period of work and residence or those workers born in Australia to immigrant parents: C Lever-Tracy and M Quinlan, A Divided Working Class: Ethnic Segmentation and Industrial Conflict in Australia, Routledge & Kegan Paul, London, 1988, p 1. 2 See C Arup, ‘Labour Market Regulation as a Focus for a Labour Law Discipline’ and P Gahan and R Mitchell, ‘The Limits of Labour Law and the Necessity of Interdisciplinary Analysis’ in Redefining Labour Law: New Perspectives on the Future of Teaching and Research, ed R Mitchell, Centre for Employment and Labour Relations Law, University of Melbourne, Melbourne, 1995. 3 For exceptions in the British context, see P Davies and M Freedland, Labour Law: Text and Materials, 2nd ed, Weidenfeld and Nicholson, London, 1984, pp 11-24; S Deakin and G Morris, Labour Law, 2nd ed, Butterworths, London, 1998, pp. 137-143. 4 For an exception, see M Crock, ‘Immigration and Labour Law: Targeting the Nation’s Skills Needs’ in Individual Contracts and Workplace Relations, eds A Frazer, R McCallum and P Ronfeldt, Working Paper No 50, Australian Centre for Industrial Relations Research and 1 CELRL Working Paper No. 20

O’Donnell and Mitchell: Immigrant Labour in Australia: The Regulatory Framework

A second factor has been the general perception of Australia’s immigration program. The common characterisation of the program as one geared toward permanent settlement has highlighted the demographic concerns of population-building rather than more explicit labour market rationales.5 The Australian program is often contrasted with ‘guest worker’ systems, where contract immigrant labour is used to temporarily supplement local labour supplies during periods of high economic growth.6 ‘Permanent settlement’ implies the more or less unproblematic incorporation of immigrant labour into existing regulatory structures, rather than the existence of a separate regulatory regime covering ‘immigrant labour’ which can be studied in its own right. The third factor has been the approach of lawyers to immigration law in general. In fact, for much of the twentieth century there was little that lawyers could identify as ‘immigration law’ at all. The legislative framework in place for much of that time was rudimentary and consisted largely of conferring broad discretions on the Minister; this was true of the Immigration Restriction Act 1901 and even more so of the Migration Act 1958 as originally enacted. Any person inquiring as to what, in practice, was the regulatory position would have had to turn to parliamentary debates, policy statements, ministerial directives and government publicity. When, during the late 1970s and 1980s, immigration regulation began to crystallise as a recognisable body of law — based around an expanding jurisdiction of review and legislative codification — lawyers began to take more interest. Yet even here, viewed through the prism of administrative law, migration legislation was seen as giving rise to a body of rights or entitlements to entry bestowed on individual applicants. This contrasts with a perspective whereby the legislation is seen as creating a framework to give effect to labour market policy and to manage the migration program in accord with such policy.7 That is, the common ‘legal’ approach to immigration law tends to conceal the labour market rationales that drive much of the development of immigration law and policy.8 This paper examines the interconnections between immigration law and the regulation of the labour market. It aims to identify those ways in which Australian national

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Training, University of Sydney, Sydney, 1997; M Crock, Immigration and Refugee Law in Australia, Federation Press, Sydney, 1998, ch 6. See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 7 August 1952, vol 218, p 134, where the Minister introduced the 1953 program as designed ‘not on a manpower and unmarried individual worker basis but on a true population building aspect of introducing families that will contribute to the long-term development of Australia’. The ‘guest worker’ tag is usually used to describe labour migration to western European countries in the postwar period and current labour migration to Middle Eastern countries. The contrast with Australia may be more one of degree than kind. European ‘guest worker’ schemes, in practice, have tended toward a permanent settlement model as work permits were renewed and restrictions on job mobility progressively eased during the 1960s and the early 1970s. Conversely, the high rate of return after ten years of settlement for Australian immigrants in the 1960s and early 1970s suggests that, despite government policy and the stated intentions of immigrants on arrival, Australia has in practice been treated as a country of temporary labour migration by many immigrants: Lever-Tracy and Quinlan, above n 1, pp 8-10. K Tsokhas, ‘Managerialism, Politics and Legal Bureaucratic Rationality in Immigration Policy’ (1996) 55 Australian Journal of Public Administration 33. An exception, again, can be found in Crock, above, n 4. CELRL Working Paper No. 20

O’Donnell and Mitchell: Immigrant Labour in Australia: The Regulatory Framework

governments have regulated immigrant labour to meet perceived labour market demands, and the response of labour law and other areas of regulation to the issues arising from reliance on an immigrant labour force. We identify three broad areas of concerns. The first set of concerns lies in examining how immigration law and policy has been used for labour market ends. This is considered from a historical perspective (Part 2) and through examination of the labour market concerns embodied in the current system of immigrant selection (Part 3). The second cluster of issues has regard to those various policies and programs that have operated to assist immigrant workers to adjust to the Australian labour market (i.e. income support for job search, placement services, labour market programs and the recognition of overseas skills: Part 4). The third set of concerns consists of those more immediately identified with conventional labour law. These pertain to how immigrants are legally protected once they are in the labour force (Part 5). We conclude by examining how the broad contours of the regulatory framework that has governed immigrant labour for much of the twentieth century are currently under challenge (Part 6). 2. Immigration Control and Labour Market Demands: A Brief Historical Survey9 2.1 The Nineteenth Century Background With the demise of convict transportation to the eastern mainland colonies in the 1830s, the importing of indentured workers or the facilitation of free immigration was seen by employers as a way of countering the high wage labour market that had developed as a result of periodic labour scarcity. Due to the relative remoteness of the Australian colonies for British migrants, it was necessary for colonial and British governments to play active roles in assisting immigration and facilitating indentured immigration.10 This reliance on a largely immigrant and highly mobile workforce gave rise to labour market regulation that differed in certain aspects from its English counterpart. That is, the colonial master and servant statutes tended to be more extensive, more interventionist and more coercive, containing specific provisions for the enforcement of contracts — including contracts of indenture — made outside of the colonies and specifying offences unknown in British law, such as that of failing to ‘appear’ for work after receiving an advance or inducement from an employer to cover the costs of migration to the colonies.11 9

The following section draws on the more extensive consideration of the historical development of immigration policy in A O’Donnell and R Mitchell, ‘Immigration Law and Policy, and Its Contribution to Labour Market Regulation: A Historical Survey to 1979’, Working Paper No. 16, Centre for Employment and Labour Relations Law, The University of Melbourne, 2000. 10 From 1831 funds for assisted passage of immigrants were raised from Crown land sales in the colonies and passage was generally offered to young, married, male agricultural workers and rural tradesmen, and their families, and to single female domestic and farm servants, with recruitment superintended from London by an array of sub-agencies of the Colonial Office. For a comprehensive overview of colonial schemes, see R Haines, Nineteenth Century Government Assisted Immigration from the United Kingdom to Australia: Schemes, Regulations and Arrivals, 1831-1900 and Some Vital Statistics 1834-1860, Occasional Papers in Economic History No 3, Flinders University, Adelaide, 1995. 11 See M Quinlan, ‘Pre-arbitral Labour Legislation in Australia and its Implications for the Introduction of Compulsory Arbitration’ in Foundations of Arbitration: The Origins and 3 CELRL Working Paper No. 20

O’Donnell and Mitchell: Immigrant Labour in Australia: The Regulatory Framework

Indentured labour was useful in meeting specific labour shortfalls but, due to the fairly steady flow of assisted British migrants, these were relatively few. The only large scale facilitation of imported indentured labour occurred in Queensland, where over 62 000 Melanesian workers for the sugar industry were brought in between 1863 and 1904. This trade in workers was regulated by the Polynesian Labourers Act 1868 (Qld) and subsequent amendments, establishing three-year indentures with reengagement or repatriation at the end of the contract, as well as licensing recruiting agents and providing inspectors to police the system.12 In the second half of the nineteenth century specific immigration restrictions were enacted in several colonies, directed principally at the Chinese.13 The legislation was subsequently repealed during the 1860s, but between 1877 and 1888 all Australian colonies enacted restrictive legislation directed at Chinese immigration.14 The concern to maintain the colonies as bastions of European settlement interacted with more explicitly labour market concerns. It became axiomatic ‘that “Asiatics” were innately servile, would accept inferior wages and conditions, would not join unions and would willingly act as strikebreakers … perceptions that … were ultimately self-fulfilling … [T]he language of racism was tactically useful; to a still numerically small union movement in achieving its labour market restriction objectives’.15 2.2 From Federation to the Second World War The late nineteenth century regime of regulation consisted of three different streams: exclusion (of Chinese), corralling (of blacks, through indenture) and assistance (inducing whites to enter what was, as a result of the other streams of regulation, a protected high-wage labour market). At Federation, the new Federal government gained the power to legislate with respect to migration, naturalisation and aliens.16 The colonies’ concern with the racial constitution of the labour force was consolidated at a federal level with the Immigration Restriction Act 1901 (Cth) and the Pacific Island Labourers Act 1901 (Cth), but for the first two decades the control of assisted

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Effects of State Compulsory Arbitration, 1890-1914, eds S Macintyre and R Mitchell, Oxford University Press, Melbourne, 1989; M Quinlan and M Gardner, ‘Researching Australian Industrial Relations in the Nineteenth Century’ in History and Industrial Relations, ed G Patmore, Monograph No 1, Australian Centre for Industrial Relations Research and Teaching, University of Sydney, 1990. There was also a transfer system under the Act which allowed workers to be passed from one employer to another and employers could also ‘rent’ out their indentured labourers to tenant farmers for short periods. See A Graves, ‘Colonialism and Indentured Labour Migration in the Western Pacific, 1840-1915’ in Colonialism and Migration: Indentured Labour Before and After Slavery, ed P C Emmer, Martinus Hijhoff Publishers, Dordrecht, 1986, p 249. An Act to make provision for certain Immigrants 1855 (Vic) (18 Victoria No 39). G Patmore, Australian Labour History, Longman Cheshire, Melbourne, 1991, p 195. M Quinlan and C Lever-Tracy, ‘From Labour Market Exclusion to Industrial Solidarity: Australian Trade Union Responses to Asian Workers, 1830 – 1988’ (1990) 14 Cambridge Journal of Economics 159 at 167-8. As well as racially discriminatory restrictions on labour supply, colonial governments were also interventionist with regard to labour control, with the Victorian Factories Acts amended to extend to any workroom or factory where a Chinese person was employed and, later, to restrict the hours of work that could be undertaken on such premises. See Factories and Shops Amendment Acts 1887 (Vic) (51 Victoria Nos 961 and 1445). Similar legislation was enacted in Queensland and New South Wales in 1896. Australian Constitution, s 51 (xix) [naturalisation]; (xxvii) [immigration and emigration]. CELRL Working Paper No. 20

O’Donnell and Mitchell: Immigrant Labour in Australia: The Regulatory Framework

immigration programs remained with the States, with the exception of labour imported under contract and governed by the Contract Immigrants Act 1905 (Cth). The Immigration Restriction Act established seven classes of ‘prohibited immigrants’. Sub-sections 3(b) to 3(f) defined prohibited immigrants according to public interest criteria of health and good character. Sub-section 3(a) defined a prohibited immigrant more broadly as any person who failed a dictation test in any European language of a passage of fifty words. In effect, this gave the government almost absolute discretion to exclude any immigrant it wished.17 Although expressed in non-racial terms so as to avoid offending the non-European peoples of the British Empire and friendly foreign powers such as Japan, the test was clearly planned as a failsafe method of preventing the entry of non-Europeans into Australia, whether or not they came under any of the public interest exclusions listed in the Act. The ‘European language’ chosen by a Customs officer conducting the test was generally one unknown to the immigrant and it was never intended that non-Europeans be given a chance to pass the test, nor that the test be administered to European immigrants.18 Notably, the final class of prohibited immigrant under Immigration Restriction Act was: any persons under a contract or agreement to perform manual labour within the Commonwealth: Provided that this paragraph shall not apply to workmen exempted by the minister for special skill required in Australia or to persons under contract or agreement to serve as part of the crew of a vessel engaged in the coasting trade in Australian waters if the rates of wages specified therein are not lower than the rates ruling in the Commonwealth.19 The Pacific Island Labourers Act had prohibited the importation of Melanesian workers after 1904 and legislated for the deportation of most of those remaining by 1907, but the ground for exclusion in the Immigration Restriction Act was directed at contract and indentured labour more generally. Not racially based, the exclusion could be invoked against European and even British immigrants to protect local workers from foreign competition and from ‘unfree’ or bonded labour that was seen as inimical to the development of trade unionism. The primary role given to labour market testing, regardless of the race of the imported worker, was meant to maintain

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See Chia Gee v Martin (1905) 3 CLR 649. In 1905 the provision was amended from ‘European’ to ‘any prescribed’ language, with a proviso that a ‘European language’ would be used until any further language was prescribed. The amendment was meant to reinforce the formally non-discriminatory nature of the Act, but parliament did not prescribe any further languages and so tests were always conducted in a European language: A C Palfreeman, The Administration of the White Australia Policy, Melbourne University Press, Melbourne, 1967, pp 82-3. The dictation test could also be administered to immigrants within a year of entry into Australia, or to non-British subjects on their release from prison for crimes of violence; those who failed were deemed prohibited immigrants and were liable to deportation: ss 5(2); 7-8. In 1920 the one year time limit was extended to three years and in 1932 to five years after entry. Palfreeman, p 84, observes that the dictation test was used to a much greater extent as a tool of deportation than as a means of preventing entry. 18 A T Yarwood, Asian Migration to Australia: The Background to Exclusion 1896-1923, Melbourne University Press, Carlton, 1964, p 51. 19 Immigration Restriction Act 1901 (Cth) s 3(g). 5 CELRL Working Paper No. 20

O’Donnell and Mitchell: Immigrant Labour in Australia: The Regulatory Framework

full-time work and exclusivity of trade for domestic craft workers.20 Government embarrassment that the Act treated British labour with the same suspicion as it treated non-white labour led to the enactment of the Contract Immigrants Act in 1905. The importation of contract labour would now be acceptable only where it was not made with a view to affecting an industrial dispute; where the wages and conditions matched those presently applying for Australian workers performing the same work; and where no labour of equal skill and ability was available in Australia.21 To avoid the perceived offence given to Britons under the previous regime, the last requirement that no local worker of equivalent skill and ability be available did not apply to immigrants who were British subjects born in Britain or their descendants. The new Act protected domestic labour against both strikebreaking and the driving down of award wages and conditions, but not explicitly against unemployment caused by excess supply of labour. In this way, the power of ethnicity and a perceived British racial unity ‘had reshaped the limits to protection of the Australian labour market’.22 Between the wars this legislative regime was supplemented by a range of provisions allowing for more adequate control and screening of European immigrants who did not fall under the Contract Immigrants Act or the public interest exclusions of the Immigration Restriction Act. The categories of prohibited immigrant under s. 3 of the Immigration Act (the word ‘restriction’ was dropped in 1912) were defined with increased specificity,23 while government discretion to refuse entry was expanded beyond the dictation test.24 Again, it is important to see the attempted legislative restriction of aliens as the obverse of the active selection and recruitment of British labour. Between 1901 and 1930, Australia’s population grew from 3.8 million to 6.5 million, with net immigration responsible for about 30 per cent of this expansion.25 The age structure of the immigrant intake meant that the migrants contributed more to labour force and employment growth than is suggested by the aggregate figure: from 1901 to the First World War, British migrant workers accounted for 34 per cent of the rise in Australian employment and between 1921 and 1927, 40 per cent.26 That is, despite restrictive legislation directed at Asians and, at various times, continental Europeans, 20

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L Layman, ‘ “To Keep Up the Australian Standard”: Regulating Contract Labour Migration 1901-50’ (1996) 70 Labour History 25 at 26-9. Contract Immigrants Act 1905 (Cth) s 5. Layman, above, n 20, p 36. Eg, in 1925 the government was granted the power to set quotas by proclamation for aliens of any specified nationality, race, class or occupation where deemed desirable to do so on account of ‘economic, industrial, or other conditions’ existing in Australia: Immigration Act 1901-1925 (Cth) s 3K(1). Immigration Act 1901-1932 (Cth) s 3(ge), establishing a requirement that a person produce a landing permit before being allowed entry. The discretionary granting of landing permits enabled the government to restrict alien entry according to the state of the labour market without subjecting white Europeans to the dictation test: Commonwealth Parliamentary Debates, Senate, 29 April 1932, vol 134, p 127. This system became the centrepiece of immigration control in the 1930s and effectively reduced the dictation test to a mere supplementary power: D Dutton, Strangers and Citizens: The Boundaries of Australian Citizenship 1901-73, PhD Thesis, University of Melbourne, 1998, p 50. D Pope, ‘Population and Australian Economic Development 1900-1930’ in The Australian Economy in the Long Run, eds R Maddock and I McLean, Cambridge University Press, Melbourne, 1987, p 42. Id, p 45. CELRL Working Paper No. 20

O’Donnell and Mitchell: Immigrant Labour in Australia: The Regulatory Framework

the supply of labour in aggregate was not especially restricted. Around one-half of arrivals in Australia over this period were assisted by governments.27 2.3 The Postwar Decades By the close of the Second World War the Australian government had decided to embark on an ambitious immigration program to meet projected postwar labour shortages. Assisted Passage Agreements were concluded with Britain in 1946, Malta, Eire and the International Refugee Organisation (‘IRO’) in 1948; the Netherlands and Italy in 1951; and West Germany in 1952. A General Assisted Passage Scheme for people from the United States, Switzerland, Denmark, Norway, Sweden and Finland was established in 1954. Selection of immigrants was initially made according to their suitability for rural work, nursing and domestic work in hospitals and labour for reconstruction and developmental projects. What distinguished the agreements with the IRO, Netherlands, Italy and West Germany was the requirement that immigrants remain in Commonwealth-approved employment for two years. These schemes have sometimes been referred to as ‘labour under contract’ but, consisting of a unilateral undertaking on the part of the immigrant worker, the Australian scheme was not really a contract at all, although IRO staff, Australian officials and immigrants themselves referred to it as such.28 In return for signing the undertaking, immigrants were admitted to the country with the landing permit specifying two years residence only. In form, at least, this made the schemes a species of temporary labour migration, with restrictions on employment and mobility akin to western European ‘guest worker’ schemes, although in practice the expiration of temporary residence permits was rarely followed by deportation.29 The overriding labour market concerns that shaped the immediate postwar schemes can be seen in the guidelines developed by the Department of Labour and National Service in 1948: immigrants should only be placed where there was accommodation available; immigrants should not be placed in employment for which suitable Australian workers were available or under circumstances which would lead to the displacement of Australian workers; immigrants should only be placed where they received award rates of pay.30 Although, after 1952, workers were no longer recruited under a ‘contract’ that controlled their disposition, the protections from competition which were afforded to

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D Pope ‘Contours of Australian Immigration, 1901-1930’ (1981) 21 Australian Economic History Review 29 at 39. 28 E Kunz, Displaced Persons: Calwell’s New Australians, Australian National University Press, Sydney, 1988, p 40. The undertaking took the following form: ‘I hereby certify that the personal particulars supplied by me to the Australian Selection Officers are true in every respect and that I have made myself familiar with the conditions under which displaced persons can emigrate to Australia. I fully understand that I must remain in the employment found for me for a period of up to two years and that I shall not be permitted to change that employment during that period without the consent of the Department of Immigration’. 29 L Layman, ‘Migrant Labour Under Contract: The First Years of Post-War Migration, 19471952’ in War, Internment and Mass Migration: The Italo-Australian Experience 1940-1990, eds R Bosworth and R Ugolini, Gruppo Editoriale Internazionale, Rome, 1992, pp 179-180. 30 Kunz, above, n 28, p 142 7 CELRL Working Paper No. 20

O’Donnell and Mitchell: Immigrant Labour in Australia: The Regulatory Framework

domestic workers remained guiding principles during the massive postwar intake.31 Workers tended to be recruited on the basis of their potential to fill known vacancies and skills shortfalls. Executives from the building, shipping, airlines, iron and steel and automotive components industries exercised considerable influence over the intake through their representation on tripartite immigration planning and advisory councils.32 There appeared to be, over the course of the 1950s and 1960s, significant reliance by major industrialists on continued high immigrant intakes and established recruitment activity was predicated on high labour turnover. The dominant image of the immigrant worker in this period was that of a male, accompanied by non-working ‘dependants’ who would provide the basis for long-term population increase.33 In fact, European immigrant women had a higher labour force participation rate than Australian-born women, a phenomenon partly explained by economic pressures at the level of the household but also by the fact that certain sectors of manufacturing actively recruited female immigrant labour.34 The Immigration Act was replaced with a new Migration Act in 1958. At the time it remained government policy largely to prohibit the entry of non-Europeans, but the 1958 Act made no reference to race. The Act abolished the dictation test and other grounds of exclusion, and made the landing permit system the sole method of immigration control, but granting of permits was wholly at the discretion of the Minister. During the 1970s, this established regime of immigration regulation became increasingly incompatible with the changing legal environment surrounding administrative decision making. The Administrative Decisions (Judicial Review) Act 1977 (Cth) codified the grounds for review of administrative decisions; simplified access to judicial review; enabled the newly-established Federal Court to set aside departmental decisions where there was a procedural flaw in the decision-making process; and enabled applicants to require decision makers to produce a Statement of 31

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The Contract Immigrants Act 1905, which required any industrial group nominations involving work contracts to be submitted to the Minister for approval, proved too unwieldy an arrangement to allow the massive influx of labour which the government favoured in the postwar period. In 1948 the Secretary of the Department of Immigration confidentially informed officers that the practice of submitting contracts to Canberra for approval was to be discontinued and the Act was officially repealed in 1950: Layman, above, n 29, p 177; Statute Law Revision Act 1950 (Cth). See Lever-Tracy and Quinlan, above, n 1; R Tierney, ‘The Pursuit of Serviceable Labour in Australian Capitalism: The Economic and Political Contexts of Immigration Policy in the Early Fifties, with Particular Reference to Southern Italians’ (1998) 71 Labour History 137. See R Fincher, L Foster and R Wilmot, Gender Equity and Australian Immigration Policy, AGPS, Canberra, 1994, ch 2. For an early exposition of how a ‘family’ immigration policy was expected to operate, with intake segregated along gender lines — male workers to provide an immediate increase in manpower, female spouses to provide a long term increase in population growth — see WD Borrie, ‘The Role of Immigrants in Population Growth in Australia’ (1944) 16(2) Australian Quarterly 17. It was also thought the balance between working males and dependants could be altered to respond to the changing demand for labour without altering the level of the overall immigration target: CA Price, ‘Overseas Migration to and from Australia, 1947-1961’ (1962) 16 Australian Outlook 160. Southern European women in particular were perceived in some sectors as part of an international and fluid female workforce and were recruited to Australia to participate in the textile industry: see the records of the ILO Textiles Committee meeting in Geneva in 1948 and the discussion in C Boyce, Family Immigration and Migrant Women Workers: A Case Study of the Textile Industry in Brunswick, 1945 to 1960, unpublished fourth year thesis, Department of History, University of Melbourne, 1984. CELRL Working Paper No. 20

O’Donnell and Mitchell: Immigrant Labour in Australia: The Regulatory Framework

Reasons explaining their decisions. The new legal environment made judicial review of immigration decisions increasingly commonplace; over the course of the 1980s immigration ‘went from being one of the last bastions of closed government to the largest source of judicial review applications outside of taxation’.35 The subsequent response of government, beginning with a substantial codification in 1989,36 has been to aim for an increasingly dense and particularised form of immigrant selection in an attempt to limit discretion and quarantine decision-making from judicial review. Another challenge to the postwar model of immigration policy was the return of high unemployment from the mid-1970s, particularly affecting those blue collar industries that had traditionally been the destination of large numbers of postwar semi-skilled and unskilled immigrant workers.37 In response, since the 1970s governments have made it increasingly difficult for unskilled immigrant workers to enter Australia except under family reunion provisions or under Australia’s humanitarian obligations to refugees; explicit worker recruitment has been directed at skilled labour. In the early 1980s this took the form of targeted recruitment linked to specific domestic skill shortages and which was conditional on the same sort of labour market protections as found in the earlier Contract Immigrants Act. In particular, employers were required to ‘test’ the local labour market to show that there was no appropriately qualified resident worker available to fill the position. This approach survives today in the Employer Nomination Scheme (‘ENS’), discussed below (Part 3.2). By the late 1980s these relatively restrictive employer nomination categories were supplemented by more open categories that tried to boost the economy through ‘general skill supplementation’,38 an approach that was favoured by a high level government review of immigration policy in 1988.39 Generally immigrants in these open categories are not sponsored by an employer and are selected for entry by reaching a ‘pass mark’ under a ‘points test’ which allocates scores to applicants according to the skill level of their usual employment, the possession of credentials recognised in Australia, age and English language proficiency. 3. Recruiting Immigrant Labour: The Current Framework Access of non-residents to Australia is now governed by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). Currently most immigrants enter Australia under one of three broad categories: the Skilled Stream, the Family Stream or the humanitarian component. At the beginning of each financial year, the Minister for Immigration announces the maximum number of visas to be granted that year in 35

M Crock, ‘Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?’ (1996) 18 Sydney Law Review 267 at 275. 36 See S Cooney, The Transformation of Migration Law, AGPS, Canberra, 1995. 37 To some extent, however, the Whitlam Labor government (1972-75) was sceptical as to the labour market value of continued immigration even before the emergence of high unemployment: see, eg, Committee of Inquiry into Labour Market Training, Labour Market Training in Australia, AGPS, Canberra, 1974, p 9, cited below, at n 75. From the Whitlam period onwards, no further assisted passage agreements were signed with foreign governments. 38 M Baker et al, The Rationale for Australia’s Skilled Immigration Program, AGPS, Canberra, 1994, p 80. 39 See Committee to Advise on Australia’s Immigration Policies, Immigration: A Commitment to Australia, AGPS, Canberra, 1988. 9 CELRL Working Paper No. 20

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the Skilled and Family Streams.40 Where visa categories have a points test, the pass mark is also specified by the Minister. The pass mark can be manipulated to control intake quantity, being raised to decrease the number of successful applications, or lowered so as to increase the numbers of visas granted. The intake can also be controlled by suspending the processing of applications if the overall quota is going to be exceeded. The Skilled Stream can be broken down into five main categories: Independent, Employer Nomination, Skilled Australian Sponsored, Business Skills and Distinguished Talent. In this section, we will look at the first two of these categories. Whereas all immigration has labour market effects,41 it is these categories that are most directly designed to provision the domestic labour market and which most explicitly articulate labour market rationales. As well, we will consider the LongTerm Business Entry Category, which allows the temporary entry of workers for periods between three months and four years, 3.1 Independent Migrants Unsponsored applicants nominating to enter Australia under the Independent category must satisfy several threshold requirements related to their general ‘employability’ within the Australian labour market. First, applicants must nominate to enter under an occupational heading chosen from a skilled occupation list gazetted by the Minister. That is, the tasks the applicant performs in his or her ‘usual occupation’ must match the relevant job classification found in the Australian Standard Classification of Occupations and the applicant’s qualifications must be assessed as equivalent to the Australian standards for the nominated occupation. Secondly, all applicants must be younger than 45 years of age at the time of lodging their application. Finally, all applicants must be proficient in English at a vocational level, assessed according to the International Language Testing System (‘IELTS’). Applicants who satisfy these threshold requirements are then allocated points according to their individual attributes. For example, with regard to skills, applicants successfully nominating certain ‘tier one’ occupations will be allocated the most points, as will those who obtain very good IELTS scores. Similarly, those applicants aged between 18 and 29 years of age will attract maximum points for age, whereas those aged 40 to 44 years of age receive the minimum. Applicants can also receive various ‘bonus’ points. For example, extra points are allocated to those whose skills are in short supply (these are listed on a Migration Occupations in Demand List [‘MODL’]), to those whose qualifications were obtained from an Australian educational institution,42 to those who are fluent in the language of one of Australia’s major trading partners or ethnic communities, to those bringing a substantial amount

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Migration Regulations 1994 (Cth), reg 1.17. For a useful introduction to the Australian research in this area, see M Wooden et al, Australian Immigration: A Survey of the Issues, 2nd ed, AGPS, Canberra, 1994, pp 123-129; W Foster, Immigration and the Australian Economy, 2nd ed, Department of Immigration and Multicultural Affairs, Canberra, 1996, pp 70-79. As well as receiving bonus points, those who have Australian qualifications are also exempted from the work experience threshold requirement, which means that overseas students in Australia can apply for permanent resident status immediately upon graduation. CELRL Working Paper No. 20

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of capital into Australia, to those with work experience above the minimum requirements, and so on.43 The current selection system for independent immigrants differs from that which operated from 1989 to 1999 in a number of important respects. Both systems aimed to reward those applicants who are highly trained, whose qualifications are recognised in Australia, and who have been working in the occupation for which they are qualified. Yet the former system, while rewarding those with tertiary qualifications, made no distinctions between particular qualifications. In contrast, the new system allows the government to operate a form of skills targeting, as it has the capacity to simply remove occupations from the gazetted list of skilled occupation and so stop the entry of immigrants in those occupations deemed in oversupply or in which new migrants would not be immediately employable in Australia.44 Under the old system additional points could be obtained if an applicant’s occupation was on the Priority Occupation List (‘POL’), a list of occupations for which there was a shortage of skilled workers in Australia. After 1992, no occupations were listed. In contrast, the Department of Employment Workplace Relations and Small Business (‘DEWRSB’) now lists several occupations on its MODL, all drawn from tier one, and the Department of Immigration and Multicultural Affairs (‘DIMA’) allocates extra points for applicants nominating in these occupations. 3.2 Employer Nomination The Employer Nomination Scheme allows entry into Australia of a person nominated by an employer to fill a specific gap in the skilled workforce. The scheme requires that: the nominee be a highly skilled person;45 the nominating employer has an adequate record in training Australian employees;46 the employer has established there is a proven shortage of skilled domestic workers to fill the position;47 and the job offered must be full-time and under normal Australian conditions for that position.48 In the administration of the scheme, both DEWRSB and the Department of 43

See Migration Act 1958 (Cth) ss 92-96; Migration Regulations 1994 (Cth), regs 2.26, 2.26A, 2.26B, 2.27, 2.27A, 2.27B and Schedule 6. The points test also operates in the selection of applicants in the Skilled Australian Sponsored category. The pass mark for these applicants is the same as that for Independent applicants, but they are awarded extra points for being sponsored by a relative who is an Australian citizen or permanent resident, which means they do not have to score as highly on the skill, age and language factors as Independent immigrants, although they still need to meet the threshold requirements outlined above. Sponsors must post assurances of support which are held for two years from the time of the applicant’s entry, and sponsors must also demonstrate the financial capacity to provide support for sponsored applicants. 44 Thus doctors and university lecturers, able to enter as ‘skilled’ immigrants under the old system, are currently unable to nominate, as these occupations do not appear on the gazetted list. 45 Migration Regulations 1994 (Cth), reg 5.19(3). 46 Id, reg 5.19(2)(d). 47 Id, reg 5.19(2)(e). The Department has guidelines as to how employers should ‘test’ the local labour market to ensure there are no suitably qualified workers available to fill the position; this standard labour market testing may be waived where the position is an occupation recognised by DEWRSB as in demand. 48 Migration Regulations 1994 (Cth), regs 5.19(2)(c)(i); 5.19(2)(f). Prior to November 1997, it was required that the position be permanent. Now nominees may be offered fixed-term 11 CELRL Working Paper No. 20

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Education, Training and Youth Affairs (‘DETYA’) play key roles in advising DIMA on labour market testing, industrial relations concerns, salary and conditions, training issues and skill levels. In effect, the conditions surrounding the Employer Nomination scheme reiterate many of the labour protection concerns of the earlier Contract Immigrants Act 1905. In particular they aim to protect against the use of contract immigrant labour to undercut Australian conditions, to protect and promote opportunities for Australian workers to upgrade their skills, to protect opportunities for Australian workers to enter skilled occupations and to reduce Australia’s reliance on the recruitment of overseas skilled labour in the long term. These protective concerns, however, are balanced against the recognition that skilled labour shortages can develop in the short to medium term (as lead times in training for skilled occupations may be too long to meet rapid or unforseen increases in demand), that employers in remote localities may have difficulty in attracting skilled workers from metropolitan areas, and that employers need access to new and emerging skills and technological developments occurring overseas and not available in Australia.49 Note should also be made of Labour Agreements, an employer-specific or industryspecific agreement between an employer, group of employers or industry body and government, and other possible interested parties (such as unions and professional associations), whereby all parties agree that overseas recruitment of an agreed number of workers over a specified period of time is warranted.50 The existence of a Labour Agreement offers a ‘fast track’ method for processing any individual overseas recruit whose nomination falls within the terms of the Agreement and whose skills meet the requirements of the Agreement. 3.3 Temporary Entry The Australian immigration program has generally been geared toward permanent settlement rather than temporary ‘guestworker’ schemes.51 Yet the dominant trend in international migration in the 1980s and 1990s has been for temporary movements to increase at the expense of permanent settlement.52 Much of this movement has been of low-skilled temporary workers, and Australia has rarely sought to recruit such workers in significant numbers.53 At the same time, direct foreign investment,

49 50

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contracts of not less than three years duration and not subject to a clause excluding renewal: reg 5.19(2)(c)(ii). See PAM3–Issue 41, 26 August 1998, Div5.3/reg5.19, p 16. There is no mention of trade unions in the regulations, and the de facto role of the unions in the process over the 1980s and early 1990s may reflect the close relationship between the ALP government and the ACTU: see Crock, Immigration and Refugee Law, above, n 4, p 116. Although, as we have noted, in certain respects the Australian postwar migration scheme has exhibited some characteristics of a temporary labour scheme: see above, n 6. T Rod and L Williams, ‘Migration Intensification in the APEC Region 1981-1994’ in International Trade and Migration in the APEC Region, eds P J Lloyd and L Williams, Oxford University Press, Melbourne, 1996. This contrasts with other countries of ‘permanent settlement’ such as the United States and New Zealand, which have made provision for the importation of temporary low-skilled labour from specific source countries: Mexico in the case of the United States; Pacific island nations in the case of New Zealand. Mention should be made, however, of young holiday makers who CELRL Working Paper No. 20

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economic restructuring and the internationalisation of higher education have contributed to increased temporary movements of highly skilled labour.54 Partly in response to the emergence of these new migration patterns, and consistent with other initiatives to internationalise the Australian economy, the rules relating to the temporary entry of skilled labour into Australia were radically simplified in 1996, establishing a single ‘business temporary entry’ visa class, subdivided into short-term entry visas (for three months or less) and long-term entry visas (between three months and four years).55 In the case of long term business entry, an employer applies for acceptance as a sponsor, lodges a nomination describing the activities to be undertaken by the sponsored immigrant worker, and the sponsored immigrant then applies for a visa on the basis of the sponsorship. To become an approved sponsor, an employer must satisfy a ‘standing’ test and a ‘benefit to Australia’ test. The standing test focusses on the employer’s good character and previous compliance with immigration requirements, whether the employer legally operates within Australia, and whether it will be the direct employer of the applicant. The benefit test requires that the employer, as a result of the overseas recruitment, will create or maintain employment for Australian citizens, or contribute to Australian trade or competitiveness, or improve business links to Australian markets. As well, the employer must have a satisfactory record of, or demonstrated commitment to, the training of Australian residents, or introduce new or improved technology or business skills into Australia. The employer must also make a number of undertakings relating to co-operation with DIMA in monitoring sponsored persons and compliance with Australian industrial relations laws and conditions of employment.56 As in the case of employer nominations, above, these provisions entail DEWRSB playing a key role in advising DIMA as to labour market and training issues. Once sponsorship has been approved, overseas recruits are nominated according to the nature of the activity they are to perform. Employers can recruit foreign workers to perform a ‘key activity’, that is, an activity essential to the overall operations of the employer and which requires specialised skills or knowledge.57 If the employee is found to perform such a key activity, then the requirement of labour market testing (ie, advertising for an Australian worker) is waived. However, the scheme expressly excludes unskilled activities, or activities in the skilled trades and professions where are granted working rights within Australia and who are often prepared to undertake lowskilled and low-paid work. 54 C Stahl, ‘Trade in Labour Services and Migrant Worker Protection with Special Reference to East Asia’ (1999) 37 International Migration 545. The 1994 Marrakech Agreement, part of the Uruguay Round negotiations on trade in services, led to accords biased in favour of highly skilled professional workers deemed to be ‘service providers’ rather than low-skilled seasonal or contract workers: see P Garnier, ‘International Trade in Services: A Growing Trend Among Highly Skilled Migrants With Special Reference to Asia’ (1996) 5 Asian and Pacific Migration Journal 367. 55 There remains, however, a range of employment-related temporary entry visas for various specialised positions such as visiting academic, media and film staff, religious worker, public lecturer, sport, entertainment, foreign government agency and so on: see Schedules 1 and 2 of the Migration Regulations 1994 (Cth). The numbers arriving under such visas are relatively small. 56 Migration Regulations 1994 (Cth), reg 1.20D(2). 57 Id, Division 1.4A. 13 CELRL Working Paper No. 20

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there is an oversupply of practitioners. Thus the concept of ‘key activity’ allows the fast-track entry of executives, managers, specialists and other high-level full-time employees.58 It suggests that increasing flows of skilled immigrants will occur through the development of internal labour markets within multinational firms. While the temporary entry scheme still embodies some buffer against over-supply and offers some protection of employment opportunities for Australian workers, it does so in weaker form than the labour market testing requirements that operate under the ENS or earlier Contract Immigrants Act. There are no restrictions on the number of temporary arrivals in any given year, and currently around five times as many workers enter under the skilled temporary entry provisions each year as under the employer nomination scheme geared toward permanent residency.59 4. Incorporating Immigrant Labour: Post-Arrival Services While the regulation of immigrant recruitment clearly embodied mechanisms to protect domestic labour, to a large extent, both historically and currently, it also aimed to ensure an adequate ‘fit’ between labour market demands and the immigrant population. For example, prewar schemes to provide passage assistance for British migrants allowed State and Commonwealth governments to vet nominations by employers or make their own requisitions according to assessed labour demand.60 In the postwar period, the use of undertakings signed by immigrants prior to arrival enabled state direction of labour to specific projects of national reconstruction in the late 1940s and early 1950s. Current selection procedures attempt to assess immigrants’ likely success in the labour market prior to arrival in the country by looking at clearly enumerated characteristics such as skills, age and English language ability, or a firm job offer. Yet a proper ‘fit’ can also be facilitated through strategies aimed at taking effect after arrival. Commonly, these have taken the form of labour market services or programs. Such schemes fall into three broad categories: income support for job search in times of unemployment, the provision of job placement services, and a range of labour market programs designed to improve the quality of labour through training. As well, mention must be made of specific provisions for the recognition of immigrants’ skills and qualifications which ensures immigrant workers’ access to employment opportunities. 4.1 Income Support for Unemployment For most of the postwar period, immigrant workers were able to access income support in times of unemployment on the same terms as domestic workers. When a 58 59

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Crock, Immigration and Refugee Law, above n 4, p 120. Given that employers need no longer offer a permanent job to workers recruited under the ENS (see, above, n 49), both ENS and the temporary entry visa, in practice, offer themselves as means of provisioning the type of short term appointments that are increasingly common in the skilled labour market. Given the less stringent requirements that now attach to temporary entry, it is unsurprising that business temporary entry visas are preferred. Similarly, most Labour Agreements now in place are for temporary entrants. Concludes one commentator, ‘It seems that the Employer Nomination category no longer has a significant role in filling skill shortages likely to count in firms at the front line of international economic competition’: B Birrell, ‘Skilled Migration Policy Under the Coalition’ (1998) 6 People and Place 37 at 41. See O’Donnell and Mitchell, above, n 9, pp 14-16. CELRL Working Paper No. 20

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federal scheme of unemployment benefits was introduced in 1944,61 eligibility for support required at least one year continual residence in Australia prior to claiming. In response to the government’s immigration program, however, a 1947 consolidation Act allowed the residence requirement to be waived where the claimant could satisfy the Director General of Social Services of his or her intention to reside permanently in Australia.62 This situation continued until January 1993, when a twenty-six week waiting period for unemployment benefit was imposed on newly-arrived immigrants.63 In March 1997, this waiting period was extended to 104 weeks, as well as being made to apply to a wider range of social security payments.64 4.2 Job Placement The establishment of the Commonwealth’s second major labour market service, the Commonwealth Employment Service (‘CES’), was contemporaneous with the creation of an immigration portfolio to oversee the postwar immigration program.65 Whereas it is unclear to what extent the CES penetrated the general labour market in 61

The Unemployment and Sickness Benefits Act 1944 (Cth) established an unemployment benefit scheme which came into force on 1 July 1945. The Act’s provisions were later incorporated in the Social Services Consolidation Act 1947 (Cth). 62 Social Services Consolidation Act 1947, s 107(1)(b); T H Kewley, Social Security in Australia 1900-72, Sydney University Press, Sydney, 1973, p 266. On arrival in Australia many immigrants in the postwar program were held in reception centres awaiting their first job placement. Undergoing English language courses or courses in civics, they were not available for work and so ineligible for unemployment benefit. Instead, they were paid Special Benefit, a payment established in the 1944 Act and designed to provide for a person ineligible for any other Commonwealth benefits but who for any reason was ‘unable to earn a sufficient livelihood for himself and his dependants’. During the 1950s and early 1960s, immigrants made up the bulk of recipients of Special Benefit, although most were only on it for a short time until they obtained their first job; if they subsequently became unemployed they could receive unemployment benefit. For example, in 1952 there were 13 651 grants of special benefit, of which 10 706 were to ‘New Australians’ in the period between arrival and placement in first employment: Department of Social Services, Eleventh Annual Report, (1952) p 15. In 1959 the government enacted regulations under the new Migration Act 1958 (Cth), s 67(1)(c), whereby the Department of Immigration could require, as a condition of entry, a maintenance guarantee (called an ‘assurance of support’ after 1982) from a relative or friend of an immigrant where there was a possibility that the immigrant would be unable to support him or herself for a specified period after arrival. If Special Benefit had to be paid to any immigrant whose maintenance had been guaranteed, then the amount paid became a debt due to the Commonwealth by the guarantor, although the Minister for Social Security was empowered to write off the debt in special circumstances: Department of Social Services, Eighteenth Annual Report (1959) p 15. 63 Social Security Legislation Amendment (No 3) Act 1992 (Cth). 64 Social Security Legislation Amendment (Newly Arrived Residents’ Waiting Periods and Other Measures) Act 1997 (Cth) . After 1993, Special Benefit had been available to those newly arrived immigrants affected by the twenty-six week waiting period where they were suffering from severe financial hardship and had followed up all reasonable avenues to alleviate their plight. The 1997 legislation on waiting periods inserted a new provision whereby Special Benefit is available only to those newly arrived immigrants affected by the waiting period where the immigrant has ‘suffered a substantial change in circumstances beyond their control’: s 739A(7). Such changes might include the withdrawal of pre-arranged employment or an employer ceasing to operate, an applicant leaving employment due to workplace harassment, sickness of the applicant or of a dependant affecting an applicant’s capacity to work, or an undue delay in the recognition of overseas qualifications. 65 Re-establishment and Employment Act 1945 (Cth) s 47. 15 CELRL Working Paper No. 20

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the postwar period, analysts have seen it as playing a vital role in this period in the carrying out the immigration program.66 This role consisted of, first, providing some of the labour market information to assist the government in setting its annual intake target and, secondly, interviewing immigrants on disembarkation and attempting to match them with the existing demand for labour, as well as providing transport to places of employment once this had been finalised.67 Persistent and high unemployment throughout the late 1970s and 1980s saw the major focus of CES activity re-oriented toward specified disadvantaged groups in the labour market, in particular assistance for the long-term unemployed. Given their industry concentration, immigrant workers retrenched from declining industries became among the most disadvantaged of unemployed job seekers,68 and so were disproportionately represented amongst the CES target group. A major review of the Service in the 1970s specifically recommended more interpreters and bilingual officers, production of information in multi-language form, and greater attention given to the counselling of immigrants about the labour market generally, especially in those zones that had a concentration on non-English speaking clients.69 Immigrants were also targeted by the Commonwealth Employment Service Act 1978 (Cth), which established the CES as a statutory body within the general labour administration portfolio, as one of several groups requiring ‘special arrangements and … special facilities’ in the provision of assistance.70 Following the 1978 Act, the CES policy manual expressly stated that services were ‘to be provided in such a way as to eliminate discrimination in gaining access to suitable job vacancies and other employment services’.71 A Migrant Services Section operated in CES Central Office as part of the Special Services Branch. After 1984, the Migrant Services Section was incorporated into the new Job Seeker Services Branch of Central Office. This Branch oversaw services to the full range of job seeker clients, but also had the brief to develop special arrangements for services to disadvantaged job seekers and to address matters of equity with regard to CES services and programs.72 Regional Migrant Services Sections were also established within most States to monitor services for migrants, arrange the recruitment and placing of interpreters and bilingual staff, ensuring the supply of community languages material, co-ordinating the processing of applicants under temporary entry or employer nomination schemes, and referral of immigrants with overseas qualifications to appropriate local authorities.73 Since May 1998 the CES has been effectively disbanded and replaced by a network of over 300 private, community and government sector providers (the ‘Job Network’) who contract with the Commonwealth to deliver a range of job brokerage and 66 67 68

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J Isaac, ‘Manpower Planning in Australia’ (1960) 82 International Labour Review 403 at 431. Id, at 424-425. See R Ackland and L Williams, Immigrants and the Australian Labour Market: The Experience of Three Recessions, AGPS, Canberra, 1992. J D Norgard, Review of the Commonwealth Employment Service, AGPS, Canberra, 1977, pp 95-6. Commonwealth Employment Service Act 1978 (Cth) s 6(a)(i) Cited in Australian Institute of Multicultural Affairs, Reducing the Risk: Unemployed Migrant Youth and Labour Market Programs, AIMA, Melbourne, 1985, p 71. Id, p 72. Id, p 72-3. CELRL Working Paper No. 20

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employment assistance services. Initially, access to the full range of employment services delivered by Job Network providers, from simple job brokerage to intensive job search assistance, was linked to eligibility for government social security payments. This meant that most recently arrived immigrants, precluded from social security by the two year waiting period (discussed at 4.1, above), did not have access to the full range of employment services, including basic job brokerage services, previously available from the CES. Since September 1998, providers have been able to service job seekers not in receipt of benefits. This is a significant move in terms of equity, but appeared to arise primarily from commercial concerns of providers about the low rate of referral of clients from Centrelink, the government agency now responsible for initial registration of those claiming social security.74 4.3 Labour Market Programs Whereas the CES’s labour exchange service developed as a complement to the postwar immigration program, more extensive labour market programs were developed in the 1970s initially as an alternative to reliance on the immigration program. As the Committee of Inquiry into Labour Market Training put it in 1974: [I]t is unlikely that the increasing demands of Australian industry for skilled labour can be met solely through an increased flow of migrant skilled workers. In any event, the Committee believes migration is a second best solution to providing Australians with the skills necessary to work in higher level occupations and, in the process, avoid the inflationary pressures that may arise from immigration. In the Committee’s view there are within Australia reserves of labour that, given an adequate training system, can be used to alleviate present and future labour shortages. A labour market training scheme which adequately caters for women, for the underemployed, and for those in need of retraining should be able to provide a much needed additional supply of trained workers.75 At the same time, the Committee saw labour market programs playing an important social policy role, with training and retraining for occupational upgrading useful in ironing out labour market inequalities and in assisting economically disadvantaged groups, including those with English language difficulties.76 Programs introduced in the early 1970s targeted those workers displaced by tariff cuts or technological change.77 Given the industry distribution of immigrant labour established in the 74

Centrelink also undertakes the registration and classification of those claiming income support for unemployment and referral of claimants to Job Network members for employment services. Classification proceeds by job seekers completing a ‘Job Seeker Classification Instrument’ which seeks to identify the type of employment assistance a client might require, calculated according to their perceived labour market disadvantage, one of the indicators of which is language and literacy skills, with each factor assigned a numerical weighting. 75 Committee of Inquiry into Labour Market Training, above n 37, p 9. 76 Id, 6-8. 77 The then Minister for Labour, Clyde Cameron explained in March 1973 that ‘where tariff changes cause displacement, we will be there to sustain the displaced workers. Where technological change makes skills obsolescent, we will be there to teach another skill’: cited in A Stretton and B Chapman, An Analysis of Australian Labour Market Programs, Discussion Paper No 247, Centre for Economic Policy Research, Australian National University, 17 CELRL Working Paper No. 20

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postwar decades, this meant significant numbers of migrant workers were potential beneficiaries of such programs. In the second half of the 1970s, the stated focus of many programs was on the youth labour market and the school-to-work transition,78 although immigrant workers with English language difficulties were a designated disadvantaged group under both the Wage Pause Program and the Community Employment Program in the early 1980s.79 The Kirby Committee in 1985 also drew attention to the labour market disadvantage of immigrants with English language difficulties, particularly older immigrant workers retrenched from low paid, low skilled jobs: ‘Typically they also have few recognised formal qualifications and in many cases face very bleak prospects in finding new employment, particularly in the growth sectors which require an ability to handle information’.80 In response, it recommended that the ‘Department of Immigration and Ethnic Affairs should, in consultation with the Department of Employment and Industrial Relations, seek to develop appropriate vocational English courses and courses which combine English language training with vocational skills training, to assist unemployed migrants’.81 In 1990 access to programs designed to address long-term unemployment was determined by a job seeker being either long-term unemployed or else falling into a specified category of ‘special disadvantage’. These later included non-English speaking immigrants. After 1991, the then Department of Employment, Education and Training restricted the definitions of special disadvantage to four groups: the long-term unemployed; Aborigines and Torres Strait Islanders, people with disabilities and sole parents, and moved toward a composite indicator of disadvantage called a Jobseeker Screening Instrument to identify those at high risk of becoming long-term unemployed and to prioritise them for access to intensive employment assistance.82 The Working Nation white paper in 1994 announced ‘improved migrant consultative arrangements in the CES, in the form of Migrant Advisory Committees, and a new nationwide network of Migrant Liaison Officers’.83 The Working English Language

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Canberra, 1990, 20. See also B Chapman, ‘Continuity and Change: Labour Market Programs and Education Expenditure’ (1985) Australian Economic Review, 3rd Quarter, 99. Until 1982, 75 per cent of Commonwealth expenditure on labour market programs had been for youth training and assistance: Bureau of Labour Market Research, Employment and Training Programs for Young People, Research Report No. 2, AGPS, Canberra, 1983. However, in May 1983 only seven per cent of placements in the Wage Pause Program were immigrants from non-English speaking countries, compared with their 17.8 per cent share of the unemployed, suggesting significant under-representation in the program despite their status as an equity target group: Bureau of Labour Market Research, Public Sector Job Creation: A Profile of Wage Pause Program Participants, Interim Report Series No. 2, AGPS, Canberra, 1985, pp. 61-2. Commonwealth of Australia, Report of the Committee of Inquiry into Labour Market Programs, AGPS, Canberra, 1985, pp 42, 96. Id, p 97. P Petersen, Non-English Speaking Background Migrants, Unemployment and Employment Assistance in Australia, Masters in Economics Thesis, University of Sydney, 1999, pp 96-7; W Jarvie and R McKay, Perspectives on DEET Labour Market Programs, Discussion Paper No 296, Centre for Economic Policy Research, Australian National University, Canberra, 1993, pp 5-6, 25. Of course, the categories are not mutually exclusive: non-English speaking immigrants could fall into one or more of the target groups, with the exception of the Aboriginal and Islander group. Commonwealth of Australia, Working Nation, AGPS, Canberra, 1994, p 138. CELRL Working Paper No. 20

O’Donnell and Mitchell: Immigrant Labour in Australia: The Regulatory Framework

and Literacy (‘WELL’) Program for workers with English language difficulties also gained increased funding. The WELL program was targeted at workers most at risk of displacement from industries requiring more highly skilled and literate workers, assisting them to improve language and literacy skills to cope with changing training and communication requirements in workplaces. From 1995 spending on labour market programs began to decrease84 and, as we noted in the preceding section, no labour market programs survived the reconstitution of labour market services over the period 1997-98, except for those targeted at Aborigines and Islanders and, importantly for our discussion, adult English language programs, the latter being an adjunct of Australia’s immigration program since 1949.85 4.4 The Recognition of Overseas Skills and Qualifications Since the end of World War Two, immigrants with trade skills have been able to have their skills and qualifications recognised by tripartite committees set up under the Tradesmen’s Rights Regulation Act 1946 (Cth). The Act established the committees to accredit those ex-service personnel who had gained skills informally; that is, through means other than the formal apprenticeship system.86 This became the default mechanism for recognising the overseas trade qualifications of newly-arrived immigrants and the Act was amended in 1952 to enable recognition to be extended to any person qualified as a tradesman ‘in a country other than Australia by training and employment in accordance with the laws and customs of that country’ provided that ‘his training and employment was such as to provide the skill necessary for the performance in Australia of work ordinarily performed by a recognised tradesman’. Trades Recognition Australia (‘TRA’), which resides within DEWRSB, has responsibility for administering the Act. The Act covers 49 prescribed metal and electrical trades. Until recently TRA did not undertake assessments in other trades, such as the food and horticultural trades and hairdressing, in which they did not have experienced assessors. Such assessments were done by DIMA officials but, following changes to the Migration Regulations introduced on 1 July 1999, DIMA no longer has the power to undertake trade assessments and consequently TRA has extended its range of trade assessments, although these arrangements are under review.87 84

PN Junankar and C Kapuscinski, ‘Was Working Nation Working?’ (1998) 40 Journal of Industrial Relations 25 at 26. 85 On the English language program, see S Martin, New Life, New Language: The History of the Adult Migrant English Program, National Centre for English Language Teaching and Research, Sydney, 1998. 86 The mechanisms set up by the Act grew out of wartime ‘dilution agreements’ negotiated between government, unions and employers: see O de R Foenander, Wartime Labour Developments in Australia, Melbourne University Press, Melbourne, 1943, appendices I-IX. 87 The current government has moved to repeal the Act as a consequence of the establishment of the Australian Recognition Framework which provides a national approach to the assessment and recognition of all trade skills: Commonwealth, Parliamentary Debates, House of Representatives, 31 March 1999, p 4041. The Tradesmen’s Rights Repeal Bill 1999 was passed by the House in May 1999 and referred to the Senate Employment, Workplace Relations, Small Business and Education Legislation Subcommittee which, in August 1999, recommended passage of the Bill without amendment, but the Bill remains on the Bills List. The authority of TRA to undertake skills assessment for migration purposes derives from the Migration Regulations 1994 (Cth), reg 2.26B, not from the Tradesmen’s Rights Regulation Act, and so would be unaffected by repeal of the Act. However, it is proposed that Registered Training Organisations (‘RTOs’), which deliver training packages under the new Framework, subsume TRA’s role in the assessment of overseas skills for migration purposes. While this 19 CELRL Working Paper No. 20

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For much of the postwar period the recognition of overseas professional qualifications proved a far more intractable problem, given the fragmented character of regulation by State-based professional registration boards and the lack of any Commonwealth power to legislate with regard to occupational regulation.88 A Committee on Overseas Professional Qualifications was established within the Department of Immigration in 1969. The Committee, through the use of expert panels for specific occupations, made assessments as to the equivalence of overseas qualification to their domestic counterparts. During the 1980s, a range of government analyses pinpointed the nonrecognition of pre-migration qualifications and experience as a major contributing factor to the deteriorating labour market position of immigrant workers.89 The Committee was replaced in 1989 by the National Office of Overseas Skills Recognition (‘NOOSR’) in the Department of Education, Employment and Training, now DEWRSB. NOOSR makes comparative educational and occupational assessments and also facilitates examinations on behalf of various professions in the health sciences. It also produces information about the requirements and arrangements for occupational practice in Australia. Like its predecessor, NOOSR’s assessments are advisory only and the body has no legislative enforcement powers.90 Under the changes to the points test for independent skilled migration introduced in July 1999, applicants must have their skills for their nominated occupation assessed by the relevant Australian authority for that occupation before applying to migrate. The Minister gazettes the Skilled Occupations List from time to time and it contains the details of the relevant assessing authorities for the occupations listed.91 5. Incorporating Immigrant Labour: The Labour Law Response 5.1 Trade Union Rights Australian unions have often sought to entrench forms of compulsory unionism as a means of strengthening their bargaining power vis-à-vis employers. Compulsory unionism in mining, shearing, shipping, stevedoring and printing dates from the late nineteenth and early twentieth centuries; it then spread through both manual and nonmanual trades and through the public as well as the private sector.92 In the context of the ‘closed shop’, union rules governing eligibility for membership take on a special importance, with restrictive rules depriving workers of not only the protections and

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decision coincides with the decision to repeal the Tradesmen’s Rights Regulation Act it is not a consequence of it. The legislative authority to allow RTOs to do these assessments will be effected under the Migration Regulations. See M Salter, Studies in the Immigration of the Highly Skilled, Australian National University Press, Canberra, 1978. See, eg, Commonwealth of Australia, Skills for Australia, AGPS, Canberra, 1987; Commonwealth of Australia, A Changing Workforce, AGPS, Canberra, 1988. See generally, R Iredale, Skills Transfer: International Migration and Accreditation Issues, University of Wollongong Press, Wollongong, 1997, pp 101-104. ‘Skilled Occupations List’, Form 1121i, Department of Immigration and Multicultural Affairs. As well as TRA and NOOSR, relevant authorities currently include VETASSESS and various professional bodies. See P Weeks, Trade Union Security Law: A Study of Preference and Compulsory Unionism, Federation Press, Sydney, 1995, for an overview. CELRL Working Paper No. 20

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solidarity of union membership but also the opportunity to work in their chosen profession. For long periods of Australian history trade unions have been antagonistic to immigration, fearing it would depress wage levels, living standards and job prospects.93 Antagonism to non-European labour in particular was often expressed in union membership rules excluding ‘Chinese, South Sea Islanders, Kanakas and Asiatics’ or ‘other coloured aliens’.94 In the early part of the twentieth century such racially discriminatory membership rules were generally not considered to offend the provisions of the Conciliation and Arbitration Act 1904 (Cth) meant to safeguard against the imposition of ‘unreasonable conditions’ on members.95 A statutory right to union membership was eventually established in the Federal jurisdiction in 1952, coinciding with the massive postwar immigration program.96 The provisions overrode the ethnically discriminatory union rules that prevailed in several Australian unions and had restricted the membership of immigrant workers. The government justified the provision on the ground that certain unions (eg, waterside workers) used their membership rules, in conjunction with the closed shop, to artificially restrict labour supply, a situation that was leading to production bottlenecks in a period of postwar reconstruction.97 It was also argued that freeing up 93

M Quinlan, ‘Unions and Immigrants: The Post Second World War Experience’ in Australian Unions: An Industrial Relations Perspective, eds B Ford and D Plowman, 2nd ed., Macmillan, Melbourne, 1989, p 203. 94 See the examples in R Markey, ‘Populist Politics’ and D Hunt, ‘Exclusivism and Unionism’ in Who Are Our Enemies?: Racism and the Australian Working Class, eds A Curthoys and A Markus, Hale and Iremonger, Neutral Bay, NSW, 1978, pp 72, 93; A Markus, Fear and Hatred: Purifying Australia and California 1850-1901, Hale & Iremonger, Neutral Bay, NSW, 1979, pp 172-6; Weeks, above, n 92, p 171. 95 Conciliation and Arbitration Act 1904 (Cth) s 60(1)(d), renumbered s 83 in 1947 and s 143 in 1956. See AWU v Machine Shearers’ and Shed Employees Union [1902] AR 16 at 20 (upholding AWU rules excluding Chinese, Japanese and other Eastern or South Sea Islander races) and United Furniture Trade Society v Hordern [1905] AR 125 at 133. Concludes Weeks, above, n 92, p 154: ‘The mischief envisaged by the legislators was occasional discriminatory practice rather than overtly discriminatory rules — practices such as temporary stoppage of admission in times of slack employment in order to preserve jobs for existing members, or rejection of workers regarded as “scabs”’. Similarly, a rule of the Musician’s Union prescribing a residence requirement and a higher entrance fee for foreigners was upheld in 1929 because the ‘excessive importation of competitive wage earners’ made such a rule ‘not…altogether unreasonable’ in the context of rising unemployment, suggesting union rules could effectively be used to restrict the labour market competition posed by immigrant workers: Musicians Union v J C Williamson Ltd (1929) 27 CAR 1141. 96 Conciliation and Arbitration Act 1904-1952 (Cth) s 83A, re-numbered s 144 in 1956; reenacted as Industrial Relations Act 1988 (Cth) s 261 and Workplace Relations Act 1996 (Cth) s 261. Under the 1952 legislation, registered unions were to grant membership to any person ‘employed in connexion with an industry or engaged in an industrial pursuit’ covered by the union and who paid the appropriate subscription, notwithstanding anything to the contrary in the union rules. Any person whose usual occupation was that of employment in the industry or who was qualified and desired to be so employed was deemed to be employed and entitled to membership. 97 Commonwealth, Parliamentary Debates, House of Representatives, 4 June 1952, p 1390. Labor’s response to the provision was that in the case of waterside workers who relied on casual employment arrangements, it was economically necessary for them to restrict membership rather than admit more members than could be employed. Secondly, they saw the 21 CELRL Working Paper No. 20

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union entry was ‘suited to the needs of this country with its population increasing by more than 200,000 a year, because it seeks to keep open avenues of employment’.98 More directly, another announced that he had personal knowledge of instances ‘in which immigrants have been denied membership of trade unions although they are fully qualified as tradesmen and came to Australia for the purpose of following their trades. Such men have appealed to me because they have been debarred from employment in suitable jobs’.99 It is difficult to know to what extent the instances cited in parliament were typical. During the DP program in the late 1940s there appears to be no evidence that immigrants were systematically excluded from union membership, and immigrant incorporation into trade unions was proceeding despite the absence of a statutory right to membership.100 Individual branches continued to call for restrictions or quotas on the employment of immigrant workers. However, the resistance did not take the form of deliberately restricting their entry into the union, but arose because of fears that they would remain un-unionised and be used to break down working conditions and undermine the union’s power.101 That is, the issue of maintaining union security in the face of the immigrant influx centred on the organisational problem of recruiting immigrant workers into the union, not on excluding them. This was partly because‘[f]rom the standpoint of Australian unions any attempt to exclude immigrants would have been suicidal in the context of the massive postwar intake’.102 As of 1995 the number of reported cases dealing with the statutory right to union membership in the Federal jurisdiction was low: around seventeen in forty two years.103 The reported cases and anecdotal evidence suggests that unions have rejected membership applications usually in times of job shortage so as to preserve employment for existing members or in the context of factional disagreements;

98 99 100

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clause as allowing members of breakaway unions to be readmitted to unions they had actively worked against: Id, p 1250. The situation of waterside workers was clarified with the introduction of a specific legislative regime, the Stevedoring Industry Act 1956 (Cth), whereby the industry authority was empowered to procure and register workers to make up labour shortfalls caused by the Waterside Workers Federation’s delays in recruitment, with the Federation given the right to object to the registration of any new entrant. At the same time, the Act legally maintained compulsory unionism on the waterfront. Commonwealth, Parliamentary Debates, House of Representatives, 4 June 1952, p 1397. Id, p 1394. For example, Lever-Tracy and Quinlan characterise the attitude of the Federated Ironworkers’ Association (‘FIA’) to immigrant workers as ‘extremely cautious … though not totally obstructive’. The FIA had managed to extract from the government a pledge that immigrant workers in the steel industry would be encouraged to join unions and, from BHP management, the guarantee to dismiss immigrant workers who refused to join the union: Lever-Tracy and Quinlan, above, n 1, pp 172, 175-6. In August 1951 the Newcastle branch of the FIA tried — unsuccessfully — to restrict the employment of any further non-Anglophone immigrants, claiming that of the 774 already employed, 221 were not union members and a further 331 were unfinancial: Lever-Tracy and Quinlan, above, n 1,, p 174, citing the Sydney Morning Herald, 14 August 1951. Lever-Tracy and Quinlan, above, n 1, p 134. Weeks, above, n 92, p 168. Part of the explanation might be that there was no scheme of financial assistance for individuals wanting to enforce their statutory right to membership until the 1988, meaning abuses of the provision may have gone unchecked: see Industrial Relations Act 1988 (Cth) s 342(2)(q) CELRL Working Paper No. 20

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attempts to enforce ethnic, racial or nationality disqualifications in the postwar period appear rare.104 5.2 Wages and Conditions The dominant feature of Australian labour market regulation for much of the twentieth century was a system of compulsory conciliation and arbitration, consisting of independent, quasi-judicial tribunals which arbitrated or certified legally binding awards. Awards defined a range of minimum labour standards, most importantly wage rates, but also overtime rates, allowances, standard hours, leave entitlements and dismissal, redundancy and grievance procedures. In practice, the application of award standards did not depend on whether an employee was a trade union member or not.105 In this way, the system operated as a ‘mechanism of generalisation’, extending advances in collective bargaining or award regulation to the majority of employees, including immigrant employees, regardless of the extent of union representation or power in individual enterprises.106 Lever-Tracy and Quinlan argue the importance of this for the incorporation of immigrant labour: [T]he pervasive coverage of arbitral determinations of employment conditions (awards) meant that very few immigrants entered jobs where there weren’t legally enforceable minimum wage rates, hours, etc. Moreover, the centralised character of this system had two specific effects. First, the absence of significant regional wage differentials in awards covering particular industries or occupations meant employers had little scope to establish pockets of ‘cheap’ labour within these industries and jobs. Second, the Australian system is characterised by a particularly strong pressure for gains made in one sector or industry to be passed on to others, especially when the jobs involved are similar.107 As a broad statement, this observation is undoubtedly true. However, it needs to be qualified in several respects. First, in the early decades of the twentieth century, awards tended to exclude non-‘employees’, that is, contractors and some piece 104

One of the earliest orders by the Court under s 83A was made in Huffey’s Case where a union was ordered to admit an applicant from New Zealand: Huffey v Musicians Union (1952) 7 IIB 763, cited in L Merryfield, ‘Regulation of Union Elections in Australia’ (1957) 10 Industrial and Labor Relations Review 252. The issue was again considered in Zimmer-Vorhaus v Australian Institute of Marine and Power Engineers (1966) 8 FLR 468 where the Court overrode an organisation’s rules that provided that candidates for membership should be Australian citizens, British subjects or naturalised British subjects. Weeks also cites a complaint to the Commissioner for Community Relations in the 1970s that Vietnamese refugees had been refused membership of a trade union in Queensland on racial grounds, but concludes that ‘[p]articular instances of discrimination [regarding applications for membership] attract attention because they represent isolated departures from usual practice’: Weeks, above, n 92, pp 171-172. 105 See Burwood Cinema Ltd v Australian Theatrical and Amusement Employees Association (1925) 35 CLR 528; Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387; B Creighton and A Stewart, Labour Law: An Introduction, Federation Press, Sydney, 2000, p 68. 106 I Campbell and P Brosnan, ‘Labour Market Deregulation in Australia: The Slow Combustion Approach to Workplace Change’ (1999) 13 International Review of Applied Economics 355 at 370. 107 Lever-Tracy and Quinlan, above, n 1, p 308. 23 CELRL Working Paper No. 20

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workers at the lower end of the market, and professionals and other white collar groups at the higher end.108 Secondly, for much of its history the award system set lower rates of pay for women workers.109 This meant that in those less capitalintensive industries where labour was the major cost there was an incentive to employ women as the cheapest workers. As noted at part 2.3, above, many postwar female immigrants were recruited precisely to provision such ‘feminised’ industries.110 Thirdly, some employees within the award system remained unprotected due to limits in the enforcement of award regulation, with evasion of award conditions especially common in small workplaces. A combination of these factors — the use of labour contracting arrangements, female workers and non-factory based work — has often presented a hazard for female immigrant labour in particular sectors, most clearly manifested in the phenomenon of ‘outwork’ in the clothing and textile trades. Outwork in the clothing and textile trades declined markedly in the early years of the twentieth century, due to increased regulation by wage boards and the move to poweroperated machines, but by 1941 a commentator was able to observe that the most notorious examples of ‘sweating’ were still to be found in clothing and textiles, where ‘female labour was the predominant factor’ and workers were ‘largely impecunious foreigners and friendless refugees …not…familiar with the vernacular or sensible of their duty to collaborate in the maintenance and preservation of living standards in the community’, which suggests that the phenomenon never disappeared entirely in the first half of the century.111 The factory sector of the trade did expand markedly in the 1950s and 1960s, largely drawing, as we have noted, on the steady influx of European female labour. However, reductions in tariff protection beginning in 1973 and increased retail concentration in the same decade, strengthening the bargaining power of corporate buyers, saw the prevalence of outwork once again rise, with particular impacts on the immigrant workforce.112 Over the past decade and a half, major changes in the established system of industrial regulation have resulted in an erosion of the award as the major collective industrial instrument. From 1987 the independent centralised industrial authority (prior to 1988 the Australian Conciliation and Arbitration Commission, renamed in that year the Australian Industrial Relations Commission or ‘AIRC’), began to foster the development of workplace bargaining. It did this initially through instituting a twotier system of wage fixing which provided for a tier-one flat national wage increase and a second tier increase that was conditional on an industry or enterprise agreement involving improved work practices. Legislation in 1988 also made provision for certified agreements which could contain enterprise-specific variations on award conditions113 and the Commission introduced an enterprise bargaining principle into 108

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See J Howe and R Mitchell, ‘The Evolution of the Contract of Employment in Australia: A Discussion’ (1999) 12 Australian Journal of Labour Law 113. See R Hunter, ‘Women Workers and Federal Industrial Law’ (1988) 1 Australian Journal of Labour Law 147 See above, n 34. O de R Foenander, Solving Labour Problems in Australia, Melbourne University Press, Melbourne, 1941, pp 115-116, 127. See J Peck, ‘Outwork and Restructuring Processes in the Australian Clothing Industry’ (1990) 3 Labour and Industry 302. For one of the first studies of outwork as an issue for migrant workers from this later period, see D Cusack and J Dodd, Outwork: An Alternative Mode of Employment?, Centre for Urban Research and Action, Fitzroy, 1978. Industrial Relations Act 1988 (Cth) s 115. CELRL Working Paper No. 20

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the National Wage guidelines in 1991.114 Legislative amendments in 1993 allowed not only for certified agreements negotiated at the enterprise level between employers and unions, but also for ‘Enterprise Flexibility Agreements’ which could be negotiated directly between employers and employees without the necessity for any trade union involvement.115 Overall, the 1993 amendments shifted the focus of the regulatory regime away from centralised regulation through conciliation and arbitration, in favour of direct negotiation at the level of the enterprise.116 Nevertheless, the AIRC retained a supervisory role over the processing of agreements, and no agreement could be certified by the AIRC if it disadvantaged employees by reducing their entitlements relative to an appropriate award. Because of this ‘no disadvantage’ test, it remained difficult in this period for employers to use the bargaining process to undercut award standards. However, there was ongoing concern that groups of vulnerable workers would not be able to secure the same sort of gains through award restructuring or enterprise bargaining as workers in a superior bargaining position, and would thereby see their relative labour market position weakened. In particular the structural position of immigrant women workers — located in small, dispersed workplaces, underserviced by trade unions, lacking a sophisticated mastery of English, unfamiliar with their industrial rights in Australia and vulnerable to unemployment — was seen as weakening their capacity to participate meaningfully in the bargaining process at the workplace level.117 These concerns informed the efforts of minor political parties in the Senate to push for enhanced procedural safeguards surrounding the bargaining process and for closer monitoring of the equity effects of enterprise bargaining, with special regard to the impact of bargaining on women, part-time employees and immigrants. With regard to the bargaining process, a provision was included in the 1993 legislation empowering the AIRC to identify specific groups of employees whose interests ‘may not have been taken sufficiently into account in the negotiation for, or the terms of, agreements’. The Commission could then do whatever was necessary to find out whether the relevant employees were consulted about the agreement and had explained to them, in ways that were appropriate having regard to their particular circumstances and needs, the effect of its terms. If it considered that there was a deficiency in this regard, the Commission could make whatever orders it thought necessary to remedy the failure and its effects.118 The legislation nominated as 114

(1991) 33 AILR 369. Industrial Relations Act 1988 (Cth) Pt VIB. 116 Creighton and Stewart, above, n 105, p 45. 117 C Alcorso, ‘Economic Stocktake: Trends and Issues for Non-English Speaking Background Women Since 1982’ [1993] Australian Feminist Studies, no 18, 49 at 59. See also S Bertone, ‘Immigrant Workers and Enterprise Bargaining: Breaking the Shackles of Ethnic Stereotyping’ in Equity Under Enterprise Bargaining, ed S Hammond, ACIRRT Working Paper No 33, ACIRRT, University of Sydney, 1994; Commonwealth of Australia, Federal Race Commissioner, State of the Nation: A Report on People of Non-English Speaking Background, AGPS, Canberra, 1993. Some commentators also believed that award restructuring was likely to be of little benefit to immigrant women workers: see A Yeatman and C Bradley, NESB Migrant Women and Award Restructuring: A Case Study of the Clothing Industry, Office of Multicultural Affairs, Canberra, 1992. 118 Industrial Relations Act 1988 (Cth) s 170MG. Evidence before the AIRC in some cases indicates bilingual union delegates or employees have been used on an informal basis as 25 CELRL Working Paper No. 20 115

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examples of relevant workers women, persons whose first language is not English, and young persons. Despite what it saw as adequate substantive safeguards in the form of the ‘no disadvantage test’, the government readily agreed to these procedural provisions.119 With regard to monitoring, departmental evaluations of the bargaining process (an outcome of an agreement between the government and the Australian Democrats in the Senate) tended to confirm concerns surrounding the immigrant workers’ participation in enterprise bargaining.120 The decollectivisation of industrial regulation begun in 1987 culminated in the Workplace Relations Act 1996 which institutionalised a range of non-union and individualised bargaining options. Industrial awards, which we identified as a primary mechanism of immigrant incorporation in the postwar period, are now only one means by which terms and conditions of employment can be regulated, and have been limited in their scope to the regulation of twenty designated matters.121 In exercising its award making functions, the AIRC must have regard to the need to ‘prevent and eliminate’ discrimination on specified grounds, including racial and national origin.122 The AIRC is also empowered to include a model anti-discrimination clause in awards in addition to the twenty designated matters.123 Awards are now supplemented by Certified Agreements, the product of collective bargaining at the enterprise level and approved by the AIRC, and Australian Workplace Agreements, negotiated between an employer and individual workers, and subject to scrutiny by the Employment Advocate. There remain a number of substantive and procedural safeguards that attempt to ensure that those workers who opt out of the award system by negotiating such agreements do not fall below certain minimum standards or are subject to discriminatory treatment. Agreements are still only approved where, on balance, they result in no overall reduction in the terms and conditions of employees under an existing award or compared with an award that regulates the terms and conditions of employees engaged in the same kind of work as the employee in question.124 With regard to Certified Agreements, the AIRC must

119 120

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interpreters during consultative meetings, although in other cases professional interpreters were brought in to assist with consultations. Special measures to enhance the participation of non-English speaking background employees were more common at those workplaces where such employees were concentrated. See the cases cited in Commonwealth of Australia, Department of Industrial Relations, Enterprise Bargaining in Australia: Annual Report 1994, AGPS, Canberra, 1995, pp 117-118. Commonwealth, Parliamentary Debates, Senate, 13 December 1993, pp 4409-4410. Enterprise bargaining reports were undertaken pursuant to the Industrial Relations Act 1988 (Cth) s 170RC. The first of the reports concluded that workers from non-English speaking backgrounds were ‘significantly less likely’ than English speaking background workers to report that they had received ‘a fair chance to have a say’ in bargaining and that their overall experience was ‘less positive than that of other employees’: Commonwealth of Australia, Department of Industrial Relations, Enterprise Bargaining in Australia: Annual Report 1994, AGPS, Canberra, 1995, pp 120, 276. By the following year, the differential impact of bargaining as between English speaking and non-English speaking employees seems to have diminished: Commonwealth of Australia, Department of Industrial Relations, Enterprise Bargaining in Australia: Annual Report 1995, AGPS, Canberra, 1996, pp 196-197. Workplace Relations Act 1996 (Cth) s 89A. Id, s 88B(3)(e). Id, s 89A(8). Id, s 170XA. Even where this ‘no disadvantage test’ is not met, an agreement may be approved where non-approval would be contrary to the public interest: ss 170LT(3) and (4); 170VPG(4). CELRL Working Paper No. 20

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refuse to certify agreements which discriminate against a person on the grounds, inter alia, of race, colour or national extraction.125 There is a requirement that the terms of the agreement be explained to employees in ways that are appropriate to their ‘particular circumstances and needs’, such as the fact that they are, for example, from non-English speaking backgrounds.126 An Australian Workplace Agreement (‘AWA’) will not be approved where it is not offered in the same terms to ‘all comparable employees’ unless it can be shown that the employer did not act ‘unfairly or unreasonably’ in setting different terms,127 although there is no indication of what might constitute an acceptable reason for differential treatment. AWAs must also include an anti-discrimination clause128 and employees must receive a copy of the AWA in advance of signing it and have explained to them the effect of the agreement.129 However, the process for monitoring the equity effects of bargaining on specified groups established under the 1993 reforms did not survive the Coalition government’s repeal of Part VIB of the Industrial Relations Act in 1996. 5.3 Equal Treatment and Non-Discrimination: Legislative Measures Outside of comparatively recent legislative provisions, the common law recognised no restraints on an employer’s capacity to hire or not hire whomsoever it chose, giving it the right to exclude individuals from employment on the basis of race, nationality or ethnicity.130 Since the 1970s, however, Federal and State governments have enacted legislation prohibiting discrimination in employment based on race and other grounds.131 The legislation is complaints based and operates through the creation of specialist tribunals which are separate from the industrial tribunals. The legislation prohibits both direct and indirect discrimination. Direct discrimination involves treating an employee less favourably than someone else in the same position as that person. Indirect discrimination occurs as a result of imposing a condition or requirement with which a person is not able to comply, which is unreasonable, and with which a substantially greater number of persons of, say, a different race or ethnicity would be able to comply.132 It is generally unlawful for employers to In practice, this allows downward variation of terms and conditions to ensure the survival of a business or enterprise in financial crisis. 125 Id, s 170LU(5). A similar ‘no discrimination test’ under Part VIB of the Industrial Relations Act 1988 (Cth) appears to have been rarely discussed at formal hearings of the AIRC when considering whether to certify agreements. The Commission generally relied on perusal of the draft agreement and each party to an agreement supplying a statutory declaration setting out how the agreement met the statutory requirements. When the issue did arise, it was usually related to discrimination on the basis of age (in the case of junior rates clauses) or sex, rather than race or ethnicity: Commonwealth of Australia, Department of Industrial Relations, Enterprise Bargaining in Australia: Annual Report 1994, AGPS, Canberra, 1995, pp 201-202. 126 Workplace Relations Act 1996 (Cth) s 170LT(7). 127 Id, s 170VPA(1)(e); a comparable employee is one undertaking ‘the same kind of work’: s 170VA. 128 Id, s 170VG. 129 Id, ss 170VPA(1)(b) and (c). 130 Allen v Flood [1898] AC 1. 131 At the Commonwealth level, see Racial Discrimination Act 1975, based on the International Convention on the Elimination of All Forms of Racial Discrimination. See also AntiDiscrimination Act 1977 (NSW); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Equal Opportunity Act 1995 (Vic); Equal Opportunity Act 1984 (WA); Discrimination Act 1994 (ACT) and Anti-Discrimination Act 1992 (NT). 132 See, eg, Australian Iron and Steel v Banovic (1989) 64 ALJ 51. 27 CELRL Working Paper No. 20

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discriminate with regard to the recruitment of labour, the terms on which employment is offered, the access of workers to promotion or training, and the termination of employment.133 A number of anti-discrimination statutes, however, provide exemptions relating to situations where race and so on is recognised as a genuine occupational qualification or exclude small employers or certain categories of employment, for example, in a religious institution or a private household.134 Until the early 1990s discriminatory provisions in industrial awards and some other industrial instruments were widely exempted from the effect of various antidiscrimination statutes. Federal awards were given status similar to that of other federal ‘laws’ and so prevailed over provisions in State anti-discrimination statutes pursuant to s 109 of the Constitution.135 Several State anti-discrimination statutes also exempted discriminatory acts performed to comply with, or specifically authorised by, State industrial awards or industrial agreements.136 At the Commonwealth level, employers acting in direct compliance with entrenched discriminatory clauses in federal awards (usually in respect of loadings, hours and conditions) were protected from the effect of the Sex Discrimination Act.137 The Racial Discrimination Act 1975 (Cth), however, contained no such exemptions. The exemption provided by the Sex Discrimination Act applied to awards made both before and after the Act came into operation, although since the late 1980s the AIRC has been instructed to ‘take account of the principles embodied in’ federal antidiscrimination legislation when performing its functions, such as making new awards.138 To give effect to various ILO Conventions and Recommendations, the Industrial Relations Reform Act 1993 (Cth) inserted general non-discrimination principles at various points in the industrial legislation, along with various standards regarding termination of employment and equal pay for equal worth, including overaward payments, allowances and superannuation. Most of these principles continue in the new system of industrial regulation put in place by the Workplace

133 134 135 136

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See C Ronalds, Discrimination Law and Practice, Federation Press, Sydney, 1998, ch 4. Id, ch 11. Industrial Relations Act 1988 (Cth) s 152. See, eg, Anti-Discrimination Act 1991 (Qld) s 106(1)(c) and (d); Equal Opportunity Act 1984 (Vic) s 21(4)(d). The most comprehensive exemption was provided by 1982 amendments to the Anti-Discrimination Act 1977 (NSW) which removed from the ambit of the Act all pay issues, including overaward payments and bonuses, arising from formal industrial agreements: ss 54(1)(d) and (e), 55(2). No exceptions regarding industrial awards or agreements are provided by the West Australian or South Australian legislation. See the discussion in R Hunter, Indirect Discrimination in the Workplace, Federation Press, Sydney, 1992, 58-60; M Thornton, ‘Discrimination Law/Industrial Law: Are They Compatible?’ (1987) 59 Australian Quarterly 162. Sex Discrimination Act 1984 (Cth) s 40(1)(e). Workplace Relations Act 1996 (Cth) ss 93, 143(1C)(f). In 1993 the Sex Discrimination Act was also amended to allow the Sex Discrimination Commissioner to refer a complaint alleging a discriminatory act under an award or agreement to the AIRC: ss 50A, 50B. The AIRC is then required to convene a hearing to review the award or agreement and to take the necessary action to remove the discrimination: Workplace Relations Act 1996 (Cth) ss 111A, 113(2A). Schedule 5 to the Workplace Relations and Other Legislation Amendment Act 1996 also mandated the AIRC to review existing awards so as to eliminate provisions which discriminate on the basis of specified grounds. CELRL Working Paper No. 20

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Relations Act 1996 (Cth).139 The Workplace Relations Act also refers to eleven matters in relation to its principal object of providing a framework for co-operative industrial relations, one of which is respecting and valuing the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.140 It is clear that anti-discrimination legislation has provided important safeguards to immigrant workers as regards hiring, firing and promotion, including those white collar workers not covered by awards.141 However, in contrast to the procedural safeguards put in place around enterprise and individual bargaining, the insertion of anti-discrimination provisions into the industrial legislation has largely been made in response to discrimination other than that based on race, ethnicity or country of origin. As the discussion in this part has shown, although trade unions at times have attempted to restrict the de facto work rights of immigrants, awards themselves did not tend discriminate on the basis of nationality or ethnicity, with the exception of discriminatory provisions directed at Aboriginal and Torres Strait Islander outback workers.142 Awards and other industrial instruments did, however, often make differential provision on the basis of gender and age. It is these provisions that were initially insulated from the reach of anti-discrimination legislation143 and which now appear to be the focus of attempts to extend the principles of anti-discrimination legislation to the system of industrial regulation.144 5.4 Illegal Immigrants and Work Rights In many countries, illegal immigrants are particularly vulnerable to exploitation from employers paying below award wages and conditions.145 However, traditionally there 139

Workplace Relations Act 1996 (Cth) Pt VIA. Between 1993 and 1996 the legislation also gave the AIRC the power to make minimum wage orders, but the provision did not survive the enactment of the Workplace Relations Act 1996. 140 s 3(j). The provision is more or less the same as that inserted by the 1993 reform act. 141 In the second half of the1980s, there was a consistent trend for discrimination under the Race Discrimination Act 1975 (Cth) to be found largely in the sphere of employment, albeit given a relatively low level of complaints compared with the Sex Discrimination Act: L Foster, A Marshall and L Williams, Discrimination Against Immigrant Workers in Australia, AGPS, Canberra, 1991, pp 38-40. 142 See J McCorquodale, ‘The Myth of Mateship: Aborigines and Employment’ (1985) 27 Journal of Industrial Relations 3. 143 See the discussion above, at nn 136-138. As mentioned, industrial awards and agreements were not, in any case, insulated from the reach of the Racial Discrimination Act 1975 (Cth). 144 See above, n 126. 145 Generally, their illegal status makes such immigrants loath to attempt to enforce their rights. In any case, under common law principles, a court may not enforce contracts that involve the performance of acts that are prohibited by statute. This makes it potentially impossible for an illegal immigrant, working in breach of s 235 of the Migration Act 1958, to enforce entitlements under a contract of employment. This was the position taken by the court in Workcover Corp v Da Ping (Unreported), Full Court of South Australia, 30 March 1994, where an illegal immigrant employed under a contract for service was not a ‘worker’ for the purposes of protection under workers’ compensation legislation. A contrasting approach was 29 CELRL Working Paper No. 20

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has been little concern surrounding illegal immigration in Australia, primarily because it has been assumed that the absence of any common land borders makes such migration difficult. Nevertheless, the growth in temporary immigration has led to increasing numbers of ‘overstayers’ as the predominant form of illegal immigration. Whereas immigrants granted permanent residency have the same work rights as any Australian resident, both illegal immigrants and those people in Australia legally but who work in breach of their temporary visa conditions are capable of being ‘illegal workers’. The government estimates that 50 per cent of illegal immigrants work, while unknown numbers of legal visitors work in breach of visa conditions.146 The issue has received increased attention from the government because of both the increased incidence of immigrants attempting to enter Australia illegally by boat — representing a more visible form of illegal immigration than overstaying147 — and the arrest in 1999 of 51 illegal immigrants working in the Victorian fruit and vegetable industry.148 Currently there are few if any effective sanctions against employers who recruit people without work rights, and there is currently no obligation on employers to check the work rights of employees.149 In response, a committee of review has recommended increased onus on both employers and labour suppliers to undertake reasonable checks of a potential employee’s work rights.150 6. Conclusion It is clear from this survey that despite the lack of attention granted to immigration regulation by labour lawyers, much of immigration law has taken as its focus the

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taken in Nonferral (NSW) Pty Limited v Taufia (1998) 43 NSWLR 312 where it was decided that neither the objects nor the intention of the Migration Act required that the court deny a remedy to an illegal immigrant seeking to make a workers’ compensation claim. The difference in the courts’ approaches can be explained by the intervening High Court jurisprudence suggesting a more flexible approach to the question of contracts and illegality: see Nelson v Nelson (1995) 184 CLR 538. Note that some compensation acts bestow a general discretion to treat an injured worker under an illegal contract of service as if he or she had been a worker under a valid contract: Workers’ Compensation Act 1987 (NSW) s 24; Workers’ Compensation and Rehabilitation Act 1981 (WA) s 84A. Review of Illegal Workers in Australia: Improving Immigration Compliance in the Workplace, Department of Immigration and Multicultural Affairs, Canberra, 1999, p 18. Between 1 July and 11 November 1999, 34 boats were intercepted off the north and north west of Australia, carrying 1 643 people from a number of countries in the Middle East. This was more than the combined total of illegal boat arrivals in the preceding three years. The government has linked these arrivals with ‘people smuggling’ operations: see Department of Immigration and Multicultural Affairs, ‘People Smuggling’, Fact Sheet 83, updated 17 November 1999. Note, however, that the number of overstayers (53 143 in 1998-99) still vastly exceeds the estimated number of unauthorised arrivals. ‘Minister Orders Inquiry into Illegal Workers’, Age, 27 February 1999, p 3. Crimes Act 1914 (Cth) s 5 makes it an offence to knowingly aid or abet, directly or indirectly, the commission of an offence against a law of the Commonwealth. It is an offence under the Migration Act 1958, s 83, for a foreign national to work without appropriate permission, therefore employing such foreign nationals potentially amounts to aiding or abetting. The difficulty in securing a successful prosecution is proving an employer had knowledge that the worker was working illegally. The facts in Chen v Allied Packaging Co Pty Ltd (1997) 73 IR 53 indicate the extent to which employers seem happy to not inquire as to a worker’s immigration status, but to subsequently use their illegal status to avoid the obligations due to lawfully employed workers, in this case those concerning dismissal. Department of Immigration and Multicultural Affairs, above, n 146. CELRL Working Paper No. 20

O’Donnell and Mitchell: Immigrant Labour in Australia: The Regulatory Framework

same subject matter as labour law itself: broadly put, the regulation of people at work. Our survey shows that immigration regulation in this sense has often had a clear protective purpose, concerned with the maintenance of labour standards for domestic workers. The protective aspect is perhaps most clearly seen in restrictions on the entry of immigrant labour under certain conditions, and such restrictions clearly dominated the legislative framework of immigration regulation.151 It is this protective aspect of immigration law which would appear to resonate most strongly with the traditional concerns of Australian labour law. However, it should also be apparent from our survey that, as well as being restrictive, much immigration regulation in Australia has also been facilitative, although schemes to facilitate immigration have tended to proceed outside of any overarching legislative framework. This facilitative purpose, evident in passage assistance agreements and overseas recruitment activities, should also be an area of interest for labour lawyers, as it goes to the question of labour market design and the regulation of the size, constitution and skills of the labour force and the level and patterns of employment. The ongoing challenge is to discern how, at any given historical juncture, the regulatory framework governing immigrant labour has balanced the facilitative and protective functions: on the one hand, meeting demands for numbers and types of workers which cannot be met from the existing domestic workforce, and, on the other, protecting the employment opportunities and conditions of domestic workers. The debates over the entry of labour under contract in the early years of the twentieth century (see above, part 2.2) indicate a craft-based union movement anxious to restrict worker supply and protect domestic employment opportunities counterposed to Protestant-Empire groups anxious to populate the Australian continent as an outpost of the British empire.152 The Contract Immigrants Act 1905, marking a revision of the original s 3(g) of the Immigration Act 1901, represents some attempt to balance these concerns.153 What was noteworthy about the immediate postwar period was the existence of a ‘political accord’ between government and labour as to the overall benefits of immigration. The maintenance of such an accord was largely conditional on the sustained growth of the economy in general and full employment in particular, the protection of award conditions and employment opportunities, and trade union input into policy advisory bodies.154 The possibility of such an accord was itself the result of the development of Australian labour law in the first decades of the century: the development of arbitration and the spread of enforceable awards governing wages and conditions, the legal recognition of trade unions and the resulting high level of union density. The system of arbitral determinations in particular proved remarkably inclusive of immigrant workers, subject to the caveats expressed above (see Part 5.2), and granting 151

Although, many of the actual policy considerations behind the legislative restrictions — including those concerning race — were often ‘invisible’. Labour market concerns did figure visibly in the pre-World War II legislative scheme, but these disappeared with the enactment of the Migration Act 1958 which simply conferred broad discretions on the Minister to grant or refuse entry. 152 The government of Billy Hughes was instrumental in securing passage of the Empire Settlement Act 1922 (UK), under which the British government was prepared to share the cost of passage of emigrants from the United Kingdom with Dominion governments. 153 See above, at n 22. 154 Quinlan, above, n 93, pp 204-5 31 CELRL Working Paper No. 20

O’Donnell and Mitchell: Immigrant Labour in Australia: The Regulatory Framework

that the intention behind such inclusiveness was more often the protection of domestic labour standards from competition rather than any purely egalitarian impulse. Given the importance of immigrant labour to the functioning of new industrial and urban labour markets in the postwar period it is perhaps unsurprising that trade union rights and certain social security rights connected with labour market participation were also extended to immigrant workers. Such a characterisation does not hold true for the past two decades. The regulatory framework governing immigrant labour in Australia appears to be undergoing substantial change due to significant reforms both in the system of labour law and in immigration regulation itself. With regard to labour law, the priority given to ‘protecting’ domestic labour has been ousted by a more general trend that has reoriented labour market regulation toward issues of economic efficiency, productivity, competitiveness and regional integration.155 This is related to economic changes that have seen the very idea of a ‘domestic labour market’ undermined by the emergence of internal labour markets within multinational firms. Taken together, these two factors help explain the liberalisation of temporary entry procedures for skilled workers whereby employers need no longer have direct regard for the employment opportunities of domestic workers. A related outcome of this shift in focus in industrial regulation has been the fragmentation of the mechanisms for regulating wages and conditions. This would seem to threaten the element of inclusiveness identified above. The award system no longer operates as a ‘mechanism of generalisation’, with bargaining now driven by the requirements of individual enterprises rather than the setting of national standards across industries or occupations.156 The award system is maintained as a vestigial system intended to protect the most vulnerable employees, supplemented by a range of procedural safeguards and substantive requirements that appear to recognise that the new framework of collective and individualised bargaining has the potential to operate to the disadvantage of certain segments of the labour market, including persons of immigrant and non-English speaking background.157 Given the reorientation of the immigration program toward highly skilled labour and increasingly targeted at specific occupational sectors, many workers recruited from overseas are now less likely to fall into the category of disadvantaged worker that these safeguards are meant to protect, although United States experience suggests that, in the absence of effective labour market regulation, the recruitment of even highly skilled specialists from the Third World can be used to undercut domestic wages in the information technology industry.158 Further, the operation of the award 155

156 157

158

32

See the discussion in C Arup et al., ‘Employment Protection and Employment Promotion: The Contested Terrain of Australian Labour Law’, Working Paper No. 19, Centre for Employment and Labour Relations Law, University of Melbourne, Melbourne, 2000. Workplace Relations Act 1996 (Cth) s 3(b) T McDermott, ‘Bargaining under the New Industrial Relations Regime’ in Divided Work, Divided Society: Employment, Unemployment and Income Distribution in 1990s Australia, eds B Cass and R Couch, Research Institute for Humanities and Social Sciences, University of Sydney, 1998. B Kinnaird, ‘Temporary Entry Migration: Balancing Corporate Rights and Australian Work Opportunities’ (1996) 4 People and Place 55 at 61. CELRL Working Paper No. 20

O’Donnell and Mitchell: Immigrant Labour in Australia: The Regulatory Framework

‘safety net’ and the effectiveness of procedural safeguards surrounding bargaining remain vitally important for those immigrants in the labour force who entered Australia as part of the refugee or family reunion program, and for that cohort of unskilled or semi-skilled workers who were recruited under earlier postwar labour migration programs. As we noted, certain social security rights have also been withdrawn from newly arrived immigrants. This policy aims, in effect, to discourage those prospective immigrants who do not have the capacity to be self-sufficient on arrival. That is, regulation of the social security system is being used as a tool of immigration selection and to shape the supply of immigrant labour, and in that way has some affinities with ‘landing money’ requirements in force between the wars.159 Yet it also marks a clear break with the postwar model when arbitral awards, social security, and trade union rights worked in unison to incorporate immigrant labour into regulatory structures on terms equal to domestic labour. With regard to the system of immigration regulation itself, in contrast with much of the twentieth century, the legislation that has evolved over the past two decades is highly particularised and offers clearly articulated labour market rationales. This increased particularity of immigration regulation can give rise to its own tensions. One is that administrators of the immigration program see the purpose of such a particularised system as facilitating program management. Lawyers, by contrast, see such a regulatory regime as conferring rights and entitlements on individual applicants. This tension is acutely felt with the emergence of a review tribunal which sees its role as adjudicating individual rights claims under the legislation rather than giving effect to government policy, a position which leads to a perceived competition of interests between the tribunal and DIMA.160 A second tension is whether such a highly particularised system actually allows for the sort of flexibility necessary for the immigration system to respond to a rapidly changing labour market, including the emergence of new skilled crafts or para-professions which may not have well articulated certification and experiential requirements for practice,161 or the assessment of ‘skill’ in employment positions that are changing faster than existing employment classifications.162 One response, again in the new arrangements for temporary entry, has been to move from more or less objective notions of ‘skill’ to enterprise-specific categories such as ‘key activity’. It remains to be seen whether this grants greater weight to the value judgments of employers in determining who is an appropriate immigrant worker and in doing so shifts the balance from the traditional ‘protective’ labour market function of immigration regulation to a more clearly facilitative one.

159

Immigration Act 1901–1924 (Cth), s 3(f); O’Donnell and Mitchell, above, n 9, pp 10, 13. F McKenzie, ‘The Immigration Review Tribunal and Government Policy: To Follow or Not To Follow?’ (1997) 4 Australian Journal of Administrative Law 117 at 118-119. 161 See Crock, Immigration and Refugee Law, above, n 4, p 102. 162 Id, p 109. 33 CELRL Working Paper No. 20 160

OTHER WORKING PAPERS IN THIS SERIES 1.

A Cattermole ‘The Political Economy of Work and Health for Women of Non-English Speaking Background’.

2.

R Naughton, ‘The Industrial Relations Reform Act 1993’.

3.

R Mitchell and J Telfer, ‘The Taxation Implications of Statutory Unlawful Terminations of Employment’.

4.

S Kollmorgen and J Harvey, ‘Genuine and ‘Post-Modern’ Industrial Demands: The Impact of the State Public Services Federation Decision on Federal Tribunal Practice’.

5.

K Reade, ‘The Use of the External Affairs Power in the Industrial Relations Reform Act 1993’.

6.

R Naughton, ‘The Obligation to Bargain in Good Faith: Inspired Innovation or Legislative Folly?’.

7.

I Fehring and T Lindsey, ‘Indonesian Labour Law Under the New Order: The Military and Prospects for Change’.

8.

R Hunter and A Leonard, ‘The Outcomes of Conciliation in Sex Discrimination Cases’.

9.

R Johnstone (ed), ‘New Directions in Occupational Health and Safety Prosecution: The Individual Liability of Corporate Officers, and Prosecutions for Industrial Manslaughter and Related Offences’.

10.

T Sharard, ‘Competing Models of Worker Representation - The ILO Collective Bargaining Principles and Part VIB of the Industrial Relations Act 1988’.

11.

R Naughton, ‘Employee Involvement at the Workplace: Does the Law Provide Sufficient Incentive for Change’.

12.

A Chapman, B Creighton, R Naughton and W Q Chan, ‘Valid Reasons for Termination of Employment’.

13.

J M Fox, ‘Labour Law Under the New Order: The Interaction Between Workers’ Rights and Economic Priorities in Indonesia’.

14.

A Mitchell, ‘Industrial Democracy: Reconciling Theories of the Firm and State’.

15.

J Murray, ‘Social Justice for Women? The ILO’s Convention on Part-Time Work’.

16.

A O’Donnell and R Mitchell, ‘Immigration Law and Policy, and its Contribution to Labour Market Regulation: A Historical Survey to 1979’.

17.

S Marshall, ‘The Stake Holding Theory of Corporate Governance: Can it Deliver Upon its Promises?’.

18.

M Brown and S Ainsworth, ‘A Review and Integration of Research on Employee Participation in Australia 1983-1999’.

19.

C Arup, J Howe, R Mitchell, A. O’Donnell and J.C. Tham, ‘Employment Protection and Employment Promotion: The Contested Terrain of Australian Labour Law’.

20.

A O’Donnell and R Mitchell ‘Immigrant Labour in Australia: The Regulatory Framework’.

21.

A Forsyth, ‘Re-Regulatory Tendencies in Australian and New Zealand Labour Law’.

22.

A Chapman and J C Tham, ‘The Legal Regulation of Information in Australian Labour Markets: Disclosure to Employers of Information about Employees’.

23.

J C Tham and A Chapman, ‘The Legal Regulation of Information in Australian Labour Markets: Information that is Required to be Disclosed by Employers to Employees and Trade Unions’.

24.

A O’Donnell and C Arup, ‘Social Security and Labour Law: Constructing the Labour Market Subject’.

25.

R Mitchell and J Fetter, ‘Human Resource Management and the Individualisation of Australian Industrial Relations’.

26.

J Fetter, ‘The Strategic Use of Individual Employment Agreements: Three Case Studies’.

27.

G Mason and A Chapman, ‘Defining Sexual Harassment: A History of the Commonwealth Legislation and its Critiques’.

28.

A Murphy, ‘Protecting Employee Entitlements from Foul Play: Reform of Insolvency Law in Australia’.

29.

H J Glasbeek, Crime, Health And Safety And Corporations: Meanings Of The Failed Crimes (Workplace Deaths And Serious Injuries) Bill.

30.

C Fenwick and E Kalula, Law and Labour Law Market Regulation in East Asia and Southern Africa: Comparative Perspectives.