The inquiry by the Fair Work Ombudsman comes after it was found that large percentages of young workers are being exploited, including not being paid the minimum wage.

The 417 Working Holiday  Visa is a temporary visa for young people that allows them to work while travelling in Australia for up to two years.

Initially, the visa is valid for one year, but holders can apply for a second year if they have done 88 days specified work in a designated regional area and in certain industries in that first year. Allegations have been raised with the Fair Work Ombudsman that the 88 day requirement is being exploited by some unscrupulous operators looking to attract free labour.

As part of its intelligence gathering, the Fair Work Ombudsman wants to speak to community and support groups for overseas workers. Ongoing and new investigations into alleged exploitation of 417 and other visa holders will continue simultaneously and legal action will be considered for serious matters.

Since July 2009 when the Fair Work Ombudsman was created, it has undertaken 51 legal cases involving overseas workers, about 20% of all legal activity for that time period. The cases related to alleged underpayment of overseas workers totalling more than $3.8 million and included 10 cases involving 417 visa holders.

Restaurants account for the highest number of cases involving overseas workers, with 10 matters placed before the courts, followed by six in retail, four in fast food, three in cleaning and three in maritime.

Figures for 417 working holiday visas show that more than 128,000 were issued in the first half of the 2013/2014 financial year. Of these, one in five was a second year visa, a 30% increase over the same period the previous year.

The Fair Work Ombudsman said it is committed to ensuring their working entitlements whilst in Australia are upheld.

Discovery of non-compliance, such as non-payment of wages, underpayment of wages, employees making payments to employers and third parties in return for documentation supporting their second  visa application and exploitation of employees in exchange for accommodation programs will be dealt with on a case by case basis throughout the review.

In the first phase of activity, the Fair Work Ombudsman will undertake a detailed analysis of all available data to establish the employer, industry and geographical areas of most interest.

The review team will then engage with culturally and linguistically diverse communities and key stakeholders, gathering specific and comprehensive information alongside testing areas of most concern. Field visits and communication with identified employers are likely late this year.

In the past two financial years, the Fair Work Ombudsman has received about 2,000 requests for assistance from workers identifying themselves as 417 visa holders. Most requests for assistance from 417 visa holders come from those working in the accommodation and food services industry, followed by agriculture, forestry and fishing.

In recognition that the horticulture sector also attracts a large number of 417 backpackers, the Fair Work Ombudsman is currently running a comprehensive three year programme called the Harvest Trail, to ensure seasonal workers receive their lawful minimum entitlements.

“Our experience suggests that overseas workers are often not fully aware of their workplace rights under Australian laws and youth, language and cultural barriers can also create difficulties for them,” said a spokesman.

“We want the work experience of an overseas worker in Australia to be a positive one. And we simply aim to ensure that those who go to work each day are paid fairly for their labour. The best defence for an overseas worker against being underpaid or treated unfairly is to know their rights. They have the same workplace rights as any other worker in Australia,” he added.

Courtesy of Ray Clancy- Australia Forum

Administrator’s note

This program has been a concern for some time within the backpacking and wider community. Whilst flexibility is necessary in any system, where there is flexibility there is also opportunity to gain an unfair advantage -which for some employers and visa holders is too much of a temptation!

Some employers think that because they are not sponsoring the WH makers, then they can pay them whatever they like, either not realising or ignoring their obligation to pay the going rate or even minimum wage. Part of the problem is  the sheer number of WH makers in the market place and also not  helping the situation is the number potentially working out of their work conditions, They are either prepared to, or have no option but to, accept what is offered.There is also anecdotal evidence that there is a cultural hold over some of the south eats Asian back packers which combined with poor English, makes WH makers easier targets.

This is a major problem where regional industries are largely built on this transitory work force. Having said that (and excluding  fraudulent employers) it largely reflects the general level of ignorance of the current industrial relations system in Australia!