Hard Exterior, Soft Interior: Skill Regulation and Employer Control over Migrant Worker Selection Policy in Australia

Abstract

This paper utilises a regulatory analysis of skilled visas and insights from labour law scholarship to examine how Australian immigration law regulates ‘skill’ and the implications for migrant workers’ employment relationships. While qualifications or ‘hard skills’ act as the formal basis for selection under Australian immigration law, interpersonal attributes associated with ‘soft skills’ often decide who employers recruit. Immigration regulations that allow employers discretion to recruit based on soft skills widen scope for employer misuse and migrant worker exploitation, including for those on high-skilled visas, and for diversity bias against women and ethnic minorities. Our major theoretical contribution is to highlight how immigration laws that give employers discretion over the criteria used in skilled immigration selection intensify power imbalances within the contract of employment. The regulatory definitions of skill constructed by immigration law can thus serve as an additional lever of employer control. The findings indicate that precise regulation of skill is necessary to limit the potential for employers to exert undue control over migrants in worker selection processes.