The occupational safety and health rights and workers' compensation entitlements of illegal immigrants: an emerging challenge.

The past two decades have witnessed a growing level of illegal immigration into Western Europe, North America, Australasia and parts of the Middle East and Asia. The employment of illegal immigrants (also known as 'undocumented workers'), or visitors working contrary to their visas, raises a series of policy issues – problems exacerbated by the fears and vulnerability of these workers. This paper examines the occupational safety and health and workers' compensation obligations of employers who engage illegal entrants, or persons working contrary to visa requirements, and the rights of those workers. While the primary focus of the paper is on the Australian experience, comparison is made to the situation in the USA and (to a lesser extent) Europe. Available evidence indicates that foreigners working illegally are more likely to be subjected to exploitative (in terms of wages and conditions) and unsafe employment practices. Although occupational safety and health statutes in Australia, and probably many other countries, impose an obligation on employers to safeguard all people on their premises, even if they are not employees (in the USA, the employer's duty is principally to protect employees), ensuring that illegal immigrants are protected effectively requires dedicated measures – something government agencies are only beginning to consider. Further, in Australia and the USA, employers may be liable to make workers' compensation payments to illegal workers (engaged contrary to the Migration Act 1958 (Cth) or the Immigration Reform and Control Act 1986 respectively), although court decisions with regard to such claims are inconsistent and ambiguous. The paper concludes by identifying policy interventions that may remedy these problems.