New Workplace Justice Visa

The Department of Home Affairs introduced a “Workplace Justice Visa” for the purposes of enabling a temporary migrant worker to remain in Australia, to undertake a workplace justice activity in relation to a matter of workplace exploitation.

This was achieved via the passage of the Migration Amendment (Workplace Justice Visa) Regulations 2024 (Workplace Justice Visa Regulations) which amended the Migration Regulations on 1 July 2024.

Please see below for further information.

What is the Workplace Justice visa?

The “Workplace Justice Visa” utilises the Temporary Activity (Subclass 408) visa. The 408 visa is a visa which has numerous streams for different temporary activities in Australia, including to undertake religious work, participate in a research projects, play/coach for an Australian team, perform domestic worker etc.

Perhaps most famously, during the COVID pandemic the “Australian Government Endorsed event” stream of the 408 visa was utilised to create a pathway for temporary visa holders to remain in Australia during the pandemic. It was then known colloquially as the “COVID visa”.

The Workplace Justice Visa Regulations established a new clause under the 408 visa which opens up this stream.

What is the criteria to obtain one?

In addition to the other criteria to obtain a 408 visa (such as satisfying identity, health, and character), an applicant must:

1. seek to remain in Australia to “undertake a workplace justice activity”; and
2. be in a class of persons specified in the relevant legislative instrument (LIN 24/055).

To make a valid application for the visa, the applicant must have a valid certificate from an approved organisation/entity that states that they are party to a matter relating to workplace exploitation.

When does someone undertake a workplace justice activity?

An applicant undertakes a workplace justice activity if they:

• are a complainant or victim (or alleged victim) in criminal proceedings relating to “workplace exploitation”;
• is a party to civil proceedings relating to “workplace exploitation”; and
• is a complainant in a complaint made relating to “workplace exploitation”.

Who are the “class of persons” listed out in the instrument?

To be in the class of persons, an applicant must:

1. either:
   1. hold a substantive visa that is not subject to a condition that prohibits the visa holder from working in Australia (i.e. most Visitor visas) and will not cease within 28 days from the date of visa application; or
   2. not hold a substantive visa – but the last substantive visa held ceased no more than 28 days before the date of application, and was not subject to a condition thar prohibited them from working in Australia; and
2. the applicant has been issued a valid certificate (not revoked or set aside) by an appropriate organisation/entity that states that:
   1. the applicant is involved in a matter of “workplace exploitation”; and
   2. in their opinion, the applicant’s presence in Australia is beneficial/necessary to enable the workplace exploitation matter to be addressed in an effective and efficient manner (and where necessary – that it is in the public interest to address the matter in this manner).

What is workplace exploitation?

Under the relevant instrument, each of the following kinds of matters are considered to be “workplace exploitation”:

• underpayment or non-payment of wages or other workplace entitlements;
• unlawful unpaid or underpaid training or trials;
• up-front payment or deposit for a job;
• misclassification of workers as independent contractors instead of employees;
• unlawful deductions from wages;
• unfair dismissal;
• non-compliance with workplace health and safety requirements;
• bullying;
• sexual harassment;
• discrimination;
• coercion, or undue influence or pressure, or misrepresentation.

What organisations are able to issue a relevant certificate?

There are 18 relevant entities set out in the relevant instrument, and listed below:

Entity	ABN
The Office of the Fair Work Ombudsman	43 884 188 232
Australian Rail, Tram and Bus Industry Union (ARTBIU)	28 921 128 419
Australian Workers’ Union	28 853 022 982
Australasian Meat Industry Employees’ Union	12 206 758 691
Electrical Trades Union of Australia National Council	60 429 406 804
Human Rights Law Centre	31 117 719 267
Migrant Workers Centre	75 362 088 900
Redfern Legal Centre Ltd	31 001 442 039
SA Unions	49 207 741 085
Shop, Distributive and Allied Employees’ Association	99 789 302 470
Unions Tasmania	55 482 384 108
The Association of Professional Engineers, Scientists and Managers	99 589 872 974
UnionsACT	31 724 041 49
Transport Workers’ Union of Australia	18 559 030 246
Unions NSW	43 132 138 531
UnionsWA	64 950 883 305
United Workers Union (UWU)	52 728 088 684
Western Community Legal Centre Ltd (Westjustice)	72 604 181 071

Only the above organisations can issue relevant certificates. It’s worth noting that only The Office of the Fair Work Ombudsman is considered a government entity, and all other 17 organisations are considered to be a “body”.

What does the certificate need to state?

The certificate must state the following if issued by a government entity (i.e. The Office of the Fair Work Ombudsman):

• the name and workplace address of the government entity; and
• the full name, date of birth and address of the applicant; and
• the visa subclass held by the applicant (or, if applicable—the last visa subclass held by the applicant); and
• details of the employer where it is alleged the applicant is being or was subjected to workplace exploitation, including the employer’s name (whether personal, business or company name), the employer’s address and the employer’s Australian Business Number; and
• details of the workplace exploitation to which it is alleged the applicant is being or was subjected, including its nature, location of occurrence, duration and frequency of occurrence.

If the certificate is issued by any of the other 17 entities, it must include all of the above and also the following:

• the full name of the individual making the certificate; and
• the contact information (including workplace address, phone number and email) of the individual making the certificate; and
• a statement that the individual making the certificate is currently employed by or is contracted to provide services for the person or body; and
• the relevant qualifications and position of the individual making the certificate; and
• a statement that the person or body holds a reasonable belief on the basis of client evidence that there is prima facie evidence the applicant is or was the subject of a workplace exploitation matter; and
• a statement that the person or body considers that the applicant is committed to seeking justice or redress in a timely manner in relation to the alleged workplace exploitation matter set out in the certificate; and
• a statement that the person or body considers that adequate resourcing has been allocated either to investigate the matter or to assist the applicant to resolve the matter; and
• a statement that the person or body considers that if any law limits the time within which a proceeding may be instituted, or a complaint made, in relation to the workplace exploitation matter—that time has not expired.

How much does it cost and how long does it take?

An application for the Subclass 408 visa under the Workplace Justice stream has no charge (i.e. it’s free).

Processing times for this visa are not yet published.

Any questions?

If you have are someone who believes that the above may apply to you, we recommend that you reach out to one of the listed organisations above who may be able to assist you with outlining your rights, and if relevant – obtaining the relevant certificate.

If you require assistance with the visa or require immigration advice, please feel free to contact us by email at [email protected] or phone +61 3 9016 0484.

This document does not constitute legal advice or create an attorney-client relationship. Please consult an immigration professional for up to date information.