A recent victory for an international student against his employer in the Federal Circuit Court of Australia demonstrates the value of enabling international students to access free and confidential legal assistance to exercise their work rights.
From mid-2016 the Victorian Government has provided funding to operate the International Students Work Rights Legal Service (ISWRLS). This is a partnership between three community legal centres – JobWatch, WEstjustice and Springvale Monash Legal Service – Victoria Legal Aid and Study Melbourne.
One international student who has accessed the ISWRLS is South-American born Andres. He worked for around 18 months as a brick cleaner for a sole trader. Andres didn’t have any of his own equipment or expertise in cleaning bricks. His boss would message him about upcoming shifts and Andres would drive to his boss’ house to pick up the necessary equipment on his way to the work sites. When he got the job, Andres was told that he needed an ABN and to issue invoices. He was unfamiliar with Australia’s employment law system and so agreed to this arrangement.
In 2017, Andres contacted the ISWRLS for legal assistance and, after repeated attempts to resolve the alleged sham contracting and underpayment of wages and superannuation matters with the employer, his lawyers from JobWatch issued legal proceedings in court.
Andres had an online court hearing in August and he managed to satisfy the judge that he was owed $4,109.59 in unpaid wages plus $3,371.11 in superannuation. The judge also ordered that $1,484.62 be paid to Andres in interest.
This decision shows that targeted free legal services for vulnerable communities facing specific risks in Australia is imperative. Incidents of bullying, harassment, underpayment of wages and non-payment of other entitlements can be left unchallenged by international students and other temporary visa holders who are either unfamiliar with their rights under Australian law or are reluctant to complain for a myriad of reasons. Through the ISWRLS, international students living in Victoria, who are being treated unfairly in the workplace, have a place to go to receive free legal assistance.
Encouraged by his recent experience with the legal system, Andres wants other international students to speak up about any workplace exploitation: “All international students need to understand that any mistreatment at work, including underpayments of wages, should be reported. There is help available for you. The first step is to make an appointment and get some advice.”
Whilst the court decision is a positive outcome for Andres, the issue of enforcing the court order against his employer remains a significant hurdle. Currently, applicants to the Federal Circuit Court need to spend considerable money and energy enforcing small claims orders through the sheriff’s office. Community legal centres across Australia are calling on the Commonwealth Government to improve the system by simplifying the enforcement mechanism in this area.
Zana Bytheway, Executive Director, JobWatch +61 412 325 300
Gabrielle Marchetti, Principal Lawyer, JobWatch +61 03 9662 9458