Regulation and Decent Work for Undocumented Immigrant Workers in the United States and Australia

What is the impact of regulation on undocumented workers’ access to decent work?  Taking the view that all workers, including those in the informal economy, should be entitled to decent work, and utilising regulation and institutional perspectives, this question is answered by comparing the immigration and employment laws of the United States and Australia.  Drawing on extensive interviews with policymakers, employers, workers and their representatives, the realities of undocumented workers are examined.  Despite their status in the comparative immigration literature as 'nations of immigrants', the regulatory and geographical contexts relating to undocumented workers in the US and Australia are vastly different. As such, this paper uses a small-N, most different case study approach.

The US and Australia host significant and growing populations of undocumented immigrant workers.  It is estimated that 11.5 million unauthorised immigrants currently live in the US with 8 million of them working without authorisation.  Recent reform through Presidential executive action will provide only temporary working rights to less than half of these people.  In high relief against the background of Australia’s apparently well-controlled borders, conservative estimates suggest that up to 100,000 visitors are working without authorisation after overstaying their visa time limits or contrary to the terms of their otherwise valid visas.

Australian migration legislation prohibits unauthorised work and recent judgments suggest that employment laws do not apply to undocumented work as such employment contracts are void for illegality.  In contrast, while US immigration laws similarly prohibit unauthorised work, undocumented workers possess rights almost identical to documented workers under US employment laws.  Despite these differing legal rights, the working realities for undocumented workers in both countries are bleak.  Exploitation by unscrupulous employers is rife, evident in wage theft and unsafe working conditions, while workers’ practical access to justice is illusory.  The findings highlight the inadequacy of existing regulatory frameworks and potential avenues for addressing this are explored.