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