Debate about Australian jobs being lost to foreigners as a result of the China-Australia Free Trade Agreement is intensifying. So the government has released a "myths versus realities fact sheet" to clarify matters, but it fails to provide a complete picture of how the trade agreement affects workers.
This is how the debate is running at the moment: the unions argue the China-Australia Free Trade Agreement gives Chinese companies unrestricted access to our labour market and threatens Australian jobs, wages and conditions.
But the Abbott government, big business and now DFAT argue it will strengthen foreign investment, leading to the creation of jobs and increased prosperity.
So, who's right? In reality, the impact of the free trade agreement on Australian workers is more nuanced than either side is willing to let on.
Although unions are correct: there is no requirement of labour market testing for a Chinese company entering into an arrangement for a project, once an arrangement is finalised, individual Chinese employers on the project can apply to the Department of Foreign Affairs to access overseas workers. At that stage, the employer will need to demonstrate failed recruitment efforts in order to obtain Chinese workers. So it's technically correct for DFAT to claim there is a subsequent requirement of labour market testing contained in the trade agreement.
Nonetheless, what DFAT conveniently leaves out of its "myth-busting" fact sheet is that the interpretation of what constitutes sufficient labour market testing is entirely left up to the department.
This can be weakly interpreted by the department so that Chinese companies do not have to properly and rigorously test the local labour market in order to access Chinese workers. For example, the current policy around labour market testing permits failed recruitment efforts on social media (e.g. a single Facebook advert) as sufficient.
Moreover, the protection afforded to local workers is contained in policy rather than law, as the requirements around the nature, type and duration of labour market testing is up to the department. These can be whittled away at any time so that the ability of these requirements to protect local workers' preferential access to jobs becomes virtually meaningless.
In other words, while the trade agreement doesn't give Chinese workers unrestricted access to the local labour market, the protection it affords Australian workers is weak. In negotiating the agreement the Government should have done more to incorporate into its text that Chinese workers could only be used in areas of proven and genuine labour market shortage. It should also have made concrete the regulatory requirements around this.
The second big debate concerns whether the trade agreement with China allows Australia's employment laws and minimum standards around wages and conditions to be undermined.
Although DFAT is correct that Chinese workers will be required to be employed in accordance with our employment laws and are entitled to Australian wages and conditions, it is equally true that where these workers are being exploited or being used to undercut local wages and conditions, it is highly unlikely this will be uncovered by authorities.
When a Chinese company enters into an arrangement for a project in Australia (i.e. forms an "Investment Facilitation Arrangement"), the IFA ties a Chinese worker's migration status to the fact of their employment. An IFA worker is only permitted entry into Australia via the IFA and for the duration of the project. Thus, the IFA represents an entirely employer-driven approach to migration which entrenches the vulnerability of these types of workers.
What DFAT conveniently leaves out of its "myth-busting" fact sheet is that the interpretation of what constitutes sufficient labour market testing is entirely left up to the department.
The worker's right to remain in Australia is wholly contingent upon the employer's continuing demand for their labour. Withdrawal of support from the employer-sponsor may mean cancellation of the visa. This threat, actual or perceived, may induce an IFA worker to accept any degree of substandard working conditions and creates a strong disincentive for these workers to voice concerns for fear of being sent home.
This is distinct to the entitlement of a 457 visa worker of 90 days to find a new job before the visa's expiration. Similarly, temporary migrant workers who are working holiday-makers or international students can move freely within the Australian labour market and do not have their residency status linked to one employer.
There are other factors in the trade agreement's design of IFAs that are problematic. The IFA allows Chinese companies to negotiate concessions on the 457 visa's general standards.
Firstly, IFA workers can have lower English skills than under the 457 visa, which will hamper their ability to understand their rights or to complain about their violation. Lower English skills also have concerning implications for workplace safety.
Secondly, IFA workers are unlikely to be unionised and will have limited community connections, which again reduces their ability to voice concerns over their treatment.
A third factor is that this isolation reduces the opportunity for effective monitoring and enforcement of Australian labour laws to take place by the Fair Work Ombudsman.
Fourth, it is difficult to enforce the legal rights of IFA workers as claims take time and these workers will have returned to China by the time their cases reach court.
However, the real clincher is this: IFA workers will be unlikely to complain about being paid below the Australian minimum wage because whatever they are earning here is still likely to be more than what they would receive back in China. This provides an even stronger disincentive for IFA workers to bring to light the fact of their exploitation. Without inside informants, it is highly unlikely that the authorities will uncover it.
The final issue is whether union opposition to the trade agreement is racist. People have voiced concerns that Chinese workers are a threat to Australian jobs and wages. This in turn fuels xenophobia against Chinese workers.
It is the Abbott government, not Chinese workers, that has allowed Australia to sign up to a trade agreement that does not sufficiently protect Australian workers' preferential access to jobs or to ensure that Chinese employers who seek to use such workers to undermine local wages will get caught.
It is the Australian government that is responsible for undermining local jobs, wages and conditions and our beef should be with it, not Chinese workers.
Dr Joanna Howe is a Senior Lecturer at the University of Adelaide Law School and an expert in temporary labour migration.