Dismissal and discrimination: Illegal workers in England and Australia

Abstract

This paper deals with some topical issues in relation to illegal workers. The legal rights of illegal workers have become an international concern. In this paper two common law countries are examined. The engagement of illegal workers for work raises a number of delicate employment law and policy issues. This article compares the attitude of the courts in the England and Australia in relation to the question of the rights of workers who work contrary to immigration laws (illegal workers). In England the courts have tended to adopt a traditional approach of not enforcing contracts which are tainted by illegality in relation to cases involving payment of wages and to termination of employment. This has meant that often workers employed illegally have no rights to enforce agreements with employers who are a party to the illegal agreement. However in relation to discrimination cases the English courts have used a number of devises to sidestep this harsh approach and recently a number of workers who have been engaged illegally have been successful in establishing that their employer has discriminated unlawfully against them. In Australia in the last decade the picture is even less clear with a mixture of outcomes in relation to cases by workers claiming wages when they have been working illegally. No discrimination cases have emerged in Australia although this paper speculates that the Australian courts may be receptive to adopting the English approach.