The federal small claims court process, established in 2009 in the Federal Circuit and Family Court of Australia (FCFCOA), was instituted to provide a straightforward and easily accessible avenue for workers to pursue unpaid wages and entitlements from their employers without the necessity of legal representation.

However, in its new report, All Work, No Pay, the Migrant Justice Institute expressed that “it is virtually impossible for many workers to file and pursue a small claim without legal support. And affordable legal support is extremely limited.”

This comes after the release of the Annual Report for 2022–23 from the FCFCOA, which revealed that despite hundreds of thousands, or potentially millions of migrant workers being underpaid every year, only 137 of these individuals pursued legal action.

The findings from the survey conducted by the Migrant Justice Institute align with the FCFCOA’s results, revealing that “of 4,000 migrant workers, over half were underpaid” and that “most knew this, but nine in 10 did nothing”. It also revealed that one individual went to court to fight this but recovered none of the wages they were entitled to.

All Work, No Pay was authored by co-executive directors Associate Professor Laurie Berg (University of Technology Sydney), Associate Professor Bassina Farbenblum (UNSW Sydney), and researchers Fiona Yeh and Catherine Hemingway.

The report presents a comprehensive reform framework that has garnered endorsement from 24 legal service providers and community and anti-trafficking organisations throughout Australia.

The reforms the report suggests include:

• More accessible, simpler court processes.
• A new pathway for wage claims at the Fair Work Commission and potentially establishing a new Fair Work Court.
• More funding for legal assistance.
• A new government guarantee scheme so workers get paid where the employer disappears, liquidates or refuses to pay.

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“The court processes must be reformed to deliver migrant workers the wages they’re owed. It is currently almost impossible for many migrant workers to make and pursue wage claims without legal support,” she said.

Farbenblum said: “For most migrant workers in Australia, the risks and costs of making a wage claim outweigh the slight prospect of success. Existing legal processes are complex and inaccessible. This incentivises employers to underpay their workers, assuming that workers will never hold them to account.”

Imogen Tatam, senior lawyer at Circle Green Community Legal, revealed how many migrant workers who endure underpayments and mistreatment often avoid legal recourse due to the daunting complexities of the system.

“Time and time again, in our work, we see migrant workers struggle with the small claims processes, or choose not to make claims at all because they are too daunted by the legal system. These are the clients that silently suffer underpayments and maltreatment when they are already facing the challenge of trying to build a life in a new and unfamiliar country,” Tatam said.

“Legal proceedings are daunting, difficult, and costly for everyone. For a migrant worker who is unfamiliar with Australian laws, the English language, and may be facing significant disadvantage in other aspects of their life, legal proceedings are near impossible.

“Despite evidence that migrant worker exploitation and underpayment is rife, this important report by the Migrant Justice Institute clearly shows how the legal system is failing migrant workers, and outlines what the federal government needs to do. The legal system should not, and cannot, be another enabler of migrant worker exploitation, where it should be preventing and rectifying the issue.”