The Committee heard particular concerns about the risks of labour exploitation, particularly among migrant workers in Australia.
The Committee also heard evidence linking visa conditions, leveraged by unscrupulous employers to exert control, to an increased likelihood of vulnerability to modern slavery offences and exploitation.
This chapter examines measures to address these concerns, drawing on measures introduced in the United Kingdom with the Modern Slavery Act 2015 (UK Act) as part of the UK Government’s commitment to combat modern slavery.
As discussed in Chapter 3, the Committee acknowledges that modern slavery exists at the extreme end of a continuum of exploitation. Ms Caroline Haughey, who reviewed the UK Act, told the Committee that exploitation can take many forms:
Labour exploitation is not as simple as just taking someone’s passport and not giving them any money and making them work long hours. It can be further than that. It can be making them work against their will; paying them significantly less than the minimum wage; making them work in conditions that are dangerous. It can be coercive in a manner that you and I may not be familiar with now but that we find in years to come.
As noted in Chapter 3, the Committee heard that migrant workers are particularly vulnerable to exploitation. The International Organisation for Migration (IOM) submitted that exploitation is closely tied to migration as ‘migrant workers around the world generally lack the legal protection available to the domestic workforce’. The IOM noted that ‘irregular migrant workers’ are particularly ‘vulnerable to exploitation and abuses in the workplace, including slavery-like practices’.
Submitters highlighted that Australia’s response to modern slavery must also address labour exploitation, particularly for migrant workers. The Salvation Army Freedom Partnership, which was established to build a national movement to end slavery, emphasised:
… the integrity of Australia’s anti-slavery framework relies on robust protections for migrant workers; otherwise, we risk undermining our domestic anti-slavery response, our position as a leader in the region, and potentially our international human rights obligations.
The Freedom Partnership, which provides support to victims, empowers survivors to speak out, supports capacity building in communities to respond, raises awareness and advocates for policy reform, highlighted the close relationship between modern slavery and labour exploitation:
Problems dwell at the intersection of anti-slavery, immigration and workplace policy, where temporary lawful and unlawful workers are reluctant to complain about exploitative conditions for fear of losing the opportunity to work in Australia or, in severe cases, of retaliation by the employer. Because labour exploitation and trafficking exist on the same spectrum, policies targeting the former will have an impact on the latter, for better or worse.
The Committee notes that cases of migrant worker exploitation have been the subject of a series of recent high-profile media reports, including the exploitation of students by 7-Eleven stores and exploitation of temporary migrants by labour hire firms in the horticultural sector.
The Committee notes that the recent National Temporary Migrant Work Survey conducted by the University of NSW and University of Technology Sydney found that ‘wage theft’ is widespread among international students and backpackers in Australia. The survey of 4 322 temporary migrants from 107 countries found that one in three international students and backpackers are paid about half the legal minimum wage.
The Committee notes that labour exploitation has been considered in detail by a range of Commonwealth inquiries. The role of labour hire companies in contributing to labour exploitation has been the subject of a series of state and territory inquiries (the outcomes of these inquiries are discussed in detail below).
The Committee also notes that the many of the recently publicised cases of migrant worker exploitation around Australia have already been subject to inquiries by the Fair Work Ombudsman (FWO), particularly international students in 7-Eleven stores, backpackers in the agricultural sector, and migrant workers on the Harvest trail.
The Committee notes that the Parliamentary Joint Committee on Law Enforcement (PJCLE) also considered slavery and forced labour involving migrant workers in its recent report and made recommendations regarding information for migrant workers, visa protections and labour hire licensing.
Case study – Mildura
As noted in Chapter 3, the Committee is aware of many media reports of labour exploitation in the horticultural industry in regional Australia, particularly by labour hire companies. To investigate the prevalence of exploitation of migrant workers in more detail, the Committee held a public hearing in Mildura, Victoria on 30 October 2017.
The Committee heard from a range of farmers, growers, hostel-owners, unions, community organisations and academics. The Committee was particularly concerned to hear the experience of victims of exploitation and modern slavery in the horticultural industry.
In Mildura, the Committee heard from Mr Moceica Turaga, who was trafficked to Australia from Fiji in 1988. Mr Turaga noted that, while the story was from a number of years ago, it is ‘similar to what others are still experiencing today’:
I see many vulnerable workers coming to Australia from all over the world, seeking a better opportunity. Farming is still hard work, and there are still people like my cousin exploiting others for their own profit. People in these situations face so many obstacles to reaching out for help.
Box 9.1 outlines Mr Turaga’s experience.
Box 9.1: Exploitation of Pacific Islander workers – Mr Moceica Turaga
When I turned 17, I was approached by a cousin to go to Australia, where he said I could study and earn money that he would send back to my mother ... This cousin was a church minister, a respected man in our society and family, so I agreed to go to Australia.
All of our travel was arranged by him, and he brought me with him to Australia in April 1988. When I arrived, he took my passport and he gave it to a migration agent, who, he said, would assist with our permits and legal issues. He also told me that there was a debt that I had to pay off for travel and visa costs. He took me to a grape farm in this part of Victoria, where I worked at two properties owned by the same family. I lived in a picker's hut. I didn't know how much money my cousin was getting from my labour. There was never any contract or accounting for my work. I jumped on a truck at 6 am and pruned and picked grapes until 6 pm or dusk, seven days a week. These grapes went to supermarkets and farmers markets in Melbourne and Sydney. When there were no grapes to pick or prune, I picked watermelons and lettuces at their other farms, some of which went to fast food restaurants.
After about two years, I was finally able to contact my mother and found out that my cousin had never sent any money to her. I couldn't believe this, and I was emotionally devastated. I felt cheated and deceived by this man, who I and our community trusted, but I also felt trapped, because of his position of power in our society and because I would be shamed by my community if I complained or came home empty-handed. I would be seen as a wrongdoer or a rebellious person who didn't make good of the opportunity that was provided to me. He would be believed; I would be considered ungrateful. He could poison the community against me. The power and the fear of this shame kept me in a prison without walls and afraid to ask for help. Also, my passport was still with the migration agent in Sydney, so I kept on working, in the hope that I could find a way out …
I don't know how many people my cousin trafficked to Australia, but there were many others. I estimate that he made over $200,000 from exploiting me for those years. I am marked by slavery forever. The scars on my back from when I fell into barbed wire and received no medical care are a regular reminder of this traumatic time in my life.
The Committee also heard from Mr Raj Thanarajah, a Melbourne‑based lawyer, and Mr Saiful Hasam, an editor with the Malaysian newspaper Utusan Malaysia. In 2016, Mr Thanarajah was alerted to the exploitation of Malaysian workers by labour hire companies on farms around Swan Hill which led to a media investigation. Mr Thanarajah told the Committee how unscrupulous migration agents and labour hire companies deceive workers into travelling from Malaysia to work in Australia illegally:
Based on the covert investigations conducted by The Age and Utusan Malaysia, it is known that the syndicates who lured Malaysians to work on farms promised them that, with additional payments, they would have the prospect of working in Australia for longer periods of time or even permanent residency. This is a hearts-and-minds campaign on the ground.
As part of the investigation, Mr Hasam went undercover to work on a farm to investigate the exploitation of migrant workers by labour hire firms. Box 9.2 outlines Mr Hasam’s experience.
Box 9.2: Investigation into exploitation of migrant workers – Mr Saiful Hasam
In October 2016, Mr Saiful Hasam, an editor with Malaysian newspaper Utusan Malaysia, travelled to Australia and went undercover as part of an investigation into conditions for migrant workers in the horticultural industry. Mr Hasam arrived without a working visa and was employed by a labour hire company on a farm in Swan Hill. Mr Hasam stayed for eight days, but was only able to work on four due to rain and availablity of work. After four days of work, Mr Hasam was paid around $100, of which he had to pay $80 in rent to stay in an over-crowded house with 11 other men. Mr Hasam told the Committee:
They employed me without any proper documentation—no contract signing, just word of mouth. A day after I went to the farm I started working for the first day … With me, there are 11 others. The leader of the house is from Indonesia, one guy is from Afghanistan and the rest are from Malaysia … Within a week, I have been able to collect so much information regarding their plight in Australia, and, basically, the story is the same. There are a thousand stories that are basically the same story: they are struggling. Sometimes, based on my experience, there is just enough money for food and rent.
Representatives of local farmers and growers suggested that cases of exploitation represent a minority of employers in the region. Ms Tania Chapman, Chair of Citrus Australia representing citrus growers, told the Committee:
… it is most important that the government recognises that the majority of our employers, especially in the farming sector, are doing the right thing.
These witnesses expressed concern about the allegations of ‘modern slavery’ in the region unfairly reflecting on growers, while the labour hire companies and others involved in the exploitation of migrant workers are not subject to the same scrutiny. Ms Emma Germano, President of the Victorian Farmers Federation (VFF) Horticultural Group, said:
… when we use the word slavery, at the moment the buck generally stops with the grower—it's the grower who's been accused of that slavery ... it's certainly a reflection of what the media thinks. When the media can't take a photo of a labour hire contractor, but can take a photo of a farm, it's a lot easier for that story…
Australian Government response
Submitters and witnesses highlighted that the Australian Government has already undertaken a number of initiatives to address exploitation.
The Committee heard that since 2016 the Australian Government has committed to introducing a range of measures to address the exploitation of vulnerable migrant workers. The Australian Government acknowledges:
Migrant workers can be particularly vulnerable to exploitation, either by those who facilitate their journey to Australia or by employers once they arrive. This may be because of cultural and language barriers, a lack of knowledge of local workplace laws and standards, and in some cases, their reliance on their employer for their immigration status.
The Australian Government noted that there is an ‘important distinction to be drawn’ between forced labour and other forms of criminal exploitation and substandard working conditions:
… substandard working conditions, including the underpayment of wages, are not acceptable in Australia, and may be an indicator of more serious exploitation.
The Australian Government noted that the key measures introduced to address worker exploitation have been establishing the Migrant Workers’ Taskforce, increasing the funding to the Fair Work Ombudsman ($20.1 million over four years) and implementing the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017.
Box 9.3 outlines the details of the Migrant Workers’ Taskforce.
Box 9.3: Migrant Workers’ Taskforce
The Migrant Workers’ Taskforce was established on 4 October 2016 and is chaired by Professor Allan Fels AO. The Taskforce is expected to run for 18 months.
The Taskforce aims to ‘identify further proposals for improvements in law, law enforcement and investigation, or other practical measures to more quickly identify and rectify any cases of migrant worker exploitation’.
The Taskforce has four key priority areas: better communication with visa holders; stronger enforcement; prevention and redress of exploitation; and policy frameworks and regulatory settings.
Box 9.4 outlines details of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, which passed both houses on 5 September 2017 and received royal assent on 14 September 2017.
Box 9.4: Protecting Vulnerable Workers legislative changes
The Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 introduced a number of changes to the Fair Work Act 2009 to ‘more effectively deter unlawful practices, including those that involve the deliberate and systematic exploitation of workers’, as well as to increase the powers of the Fair Work Ombudsman (FWO). The changes include:
increased penalties for ‘serious contraventions’ of workplace laws
making it clear that employers can’t ask for ‘cashback’ from employees or prospective employees
increased penalties for breaches of record-keeping and pay slip obligations
employers who don’t meet record keeping or pay slip obligations and can’t show a reasonable excuse, will need to disprove wage claims made in a court (a reverse onus of proof)
stronger powers for the FWO to collect evidence in investigations
new penalties for giving the FWO false or misleading information, or hindering or obstructing FWO investigations, and
certain franchisors and holding companies could be held responsible if their franchisees or subsidiaries don’t follow workplace laws.
The Australian Government also noted that a number of agencies are working together to address the conditions that lead to worker exploitation, particularly the Department of Immigration and Border Protection (DIBP), Australian Border Force (ABF) and the Fair Work Ombudsman (FWO). DIBP, ABF and FWO undertake joint operational activities through Taskforce Cadena. Commander Robyn Miller from the ABF told the Committee that in relation to Taskforce Cadena:
… the activity is actually not really aimed at the worker and targeted at the worker base here. What we're really trying to get at are the intermediaries and the labour hire firms who are actively exploiting the individuals who are working in those areas.
Box 9.5 outlines details of Taskforce Cadena.
Box 9.5: Taskforce Cadena
Taskforce Cadena is a Joint Agency Taskforce comprising the Department of Immigration and Border Protection (DIBP), Australian Border Force (ABF) and the Fair Work Ombudsman (FWO).
Taskforce Cadena was established in June 2015 to ‘enhance operational and intelligence capabilities to support whole-of-government efforts targeting organised fraud, illegal work and the exploitation of migrant workers in Australia’.
The Australian Government notes that modern slavery practices uncovered by Taskforce Cadena are referred to the Australian Federal Police (AFP) for investigation.
The Committee also notes that the Treasury’s Black Economy Taskforce is also examining ways to address illegal ‘black economy activity’ in the horticultural industry.
The Committee agrees that addressing labour exploitation is an integral part of Australia’s response to combatting modern slavery. While there is an important distinction between labour exploitation and the more serious crimes of forced labour and slavery, the Committee recognises that these crimes exist on the same spectrum of exploitation.
The Committee was particularly concerned to hear cases of exploitation from victims at its public hearing in Mildura. The Committee is grateful to these victims for coming forward and sharing their experience.
The Committee notes that the question of labour exploitation has already been the subject of a number of inquiries at the Commonwealth and the state or territory level.
The Committee recognises that the Australian Government has already introduced a range of measures to better protect vulnerable workers. The Committee supports these measures as important steps to better protect vulnerable workers.
Measures to address exploitation
The Committee heard strong support for the Australian Government’s measures to address exploitation, particularly for migrant workers.
However, submitters suggested a number of further improvements to strengthen Australia’s response, particularly in relation to:
improving visa protections and conditions;
improving information and awareness; and
licensing labour hire firms.
These issues are examined below. The Committee notes that many of these issues were also considered by the PJCLE.
Underlying causes of exploitation
While supporting existing government measures, submitters suggested more could be done to address labour exploitation. The Salvation Army Freedom Partnership submitted:
… efforts undertaken to protect vulnerable workers thus far are positive steps, but they do not go far enough to establish adequate protections for individuals who are vulnerable to all forms of labour exploitation, including modern slavery.
The Freedom Partnership also suggested that there remain ‘key deficiencies in the existing approach that must be remedied’, namely:
the current risk-based approach exercised through auditing of “high-risk” employers has limits because it is unlikely resources will ever be sufficient to support enough audits to effectively address the problem on a structural and systemic level;
providing education on rights and responsibilities has limits because it does not address the reasons why people remain in exploitative work, including fear, shame, debt, and powerlessness; and
a punitive approach has limits because it does not address the power imbalance that enables unscrupulous employers to leverage control over workers.
Submitters suggested that to be effective, these measures must address the key drivers of exploitation. Ms Emma Germano from the VFF told the Committee:
… unless you address the underlying motivation as to why someone allows themselves to be exploited, no new act put in place and none of the current laws can protect these people from being exploited.
The Committee also heard that measures to address exploitation should seek to address the sector-wide problems in industries where exploitation occurs. Mr George Robertson from the National Union of Workers (NUW) told the Committee:
Whether they are local workers—either permanent migrants or long-time citizens—or temporary migrant workers, the conditions are the same, because it’s an industry problem. It’s too easy to fall into a dichotomy of ‘this is a local versus visa worker issue’. It’s not like that at all. It’s a problem of compliance with minimum standards in the industry. That’s fundamentally what the problem is.
Submitters and witnesses representing growers and farmers emphasised the need to ensure that measures also acknowledge that the majority of employers are trying to do the ‘right thing’, and that examples of illegal behaviour do not represent the whole industry. Ms Tania Chapman, Chair of Citrus Australia, told the Committee:
Farmers must not be singled out though and associated with the one bad egg who has abused the harvest workforce scheme and exploited workers. We have many laws and legislation in place already regarding workplace sites, as well as OH&S and our award wages. But despite however many more layers government might bring in, those individual people and companies who are already flouting the laws and breaking the rules will continue to find loopholes. Agricultural producers have always been price takers, so increasing audits and layers of bureaucracy, including more audits and more audits, will only hit at growers’ pockets.
These submitters argued that there are already adequate laws in place to address exploitation and that the Australian Government should focus on resourcing the enforcement of these existing laws rather than introducing new measures. NSW Farmers submitted:
Government should better resource the enforcement of existing laws before new ones are created. Shortfalls in existing legislation can surely only be considered against evidence of a deficiency of authority in existing arrangements? There is no evidence, to date, that current laws are insufficient, only that they are potentially being ignored or poorly enforced.
Rather than new measures, representatives from the National Farmers’ Federation (NFF) asked the Committee to consider industry-led responses to address exploitation ‘which do not unreasonably increase the cost of farmers who are ill-equipped to bear them’:
… most farmers are very small businesses, many family run, who are price takers. The farmers who do the right thing simply don't have the resources to absorb the cost and administrative burden of additional regulation to address problems they don't cause.
Noting its concerns about the exploitation of workers in the agricultural sector, the NFF cautioned that:
… the unscrupulous actions of a few employers should not be taken as typical of the entire industry and should not be allowed to pressure the government into disproportionately increasing the regulatory burden on all employers.
Witnesses highlighted that the long-standing challenges faced by the horticultural industry to secure a reliable and efficient labour force have been compounded by recent changes to the relationship between supermarkets and suppliers. Mr Robertson from the NUW told the Committee:
What we’ve seen over the last decade is a move from those supermarkets to direct-supplier relationships, which has led to the emergence of large farms and to intense competition between farms to get business from the major supermarkets. What that does is put price pressure downwards in the supply chain, and what we’ve seen is that the people who wear the cost of that are the workers.
The Committee heard that the low prices set by supermarkets for produce is putting increasing pressures on farmers and growers to reduce labour costs to ensure farms are economically viable. Ms Germano from the VFF told the Committee:
We do not set the price of our produce in the majority of cases in Australia. We largely operate under a duopoly system, and the big supermarkets don't have to advertise how much they are paying the grower … Without some reform to that system of our supply chain, any efforts to stamp out exploitation at the farm level will be futile, because many growers do not have a choice as to how much they can afford to pay their staff members, if they are able to get any staff at all.
The Committee acknowledges that there are a number of underlying causes that lead to labour exploitation. The Committee recognises that measures to address exploitation should not single out particular groups, such as farmers and growers in the horticultural sector, and agrees that any measures must seek to address these underlying causes.
As discussed in Chapter 5, the Committee supports measures to address exploitation in the supply chains of entities operating in Australia. As discussed in Chapter 7, the Committee supports measures to better enforce existing laws to address labour exploitation across all industries.
The Committee heard that certain visa conditions increase migrant workers’ vulnerability to exploitation, particularly ‘tied’ visas, where the visa holder must be sponsored by an approved employer. Dr Marie Segrave from Monash University’s Border Crossing Observatory, who is leading a research project on the exploitation and regulation of unlawful workers in Australia, told the Committee:
… the way that regulations are created tends in fact to create opportunities for exploitation rather than ever protecting workers ... creating regulation tends to push it back on the workers that there will be limits on what they can do, and they can then be threatened and exploited around that regulation and these limits and requirements.
Box 9.6 outlines the different types of visas identified by Anti-Slavery Australia as creating conditions of vulnerability. The Committee notes that the subclass 457 visa is being replaced with a new Temporary Skill Shortage visa as of March 2018.
Box 9.6: Visa types and vulnerabilities
Temporary work visas: Temporary Work (Skilled) Visa (subclass 457), Working Holiday Visa (subclass 417), Work and Holiday Visa (subclass 462) and others
Student Visas: Student Visa (subclass 500), Higher Education Visa (subclass 573)
Partner or Family Visas: Partner Visa (subclass 309 and 100), Partner Visa (subclass 820 and 801), Prospective Marriage Visa (Subclass 300)
Asylum seekers: Predominately bridging visas.
The Committee heard particular concerns about the following visa types.
Working Holiday Makers – 417 visas
The Committee heard concerns about the requirement for Working Holiday Makers (or ‘backpackers’) on 417 visas to undertake three months (or 88 days) of specified work in a regional area in order to qualify for a second visa.
In order to qualify for the second visa, Working Holiday visa holders need to provide evidence that they have satisfied the three month specified work eligibility requirement. Acceptable evidence of specified work includes original or certified copies of the following:
pay slips (must be supplied for all specified work performed from 31 August 2015)
a written and signed piecework agreement setting out the pay rate per piece and how it is measured
a completed Form 1263 Working Holiday visa: Employment verification
Australian bank statement covering the period of declared specified work
a written and signed agreement setting out any lawful deductions in pay.
The Committee notes that Ms Rosie Ayliffe, whose daughter Mia was murdered in a Queensland hostel in 2016 while on a working holiday in Australia, has campaigned strongly to improve protections for 417 visa holders, in particular around a ‘safe and fair’ 88 days of regional work.
In her submission to the inquiry on behalf of Tom and Mia’s Legacy, Ms Ayliffe outlined many cases of exploitation experienced by backpackers from around the world during their 88 days of work in Australia. Ms Ayliffee noted that this includes sexual exploitation, particularly for women:
Practices such as signing girls off in exchange for sexual acts or paying girls to work topless in fields for the sexual gratification of onlookers are currently commonplace according to the young women who have contacted me.
Ms Ayliffe told the Committee that backpackers are compelled to subject themselves to exploitative situations in order to fulfil the requirements of the 417 visa:
… connecting the 88 days with obtaining your second year creates this vulnerability … and if you took that connection away and made it attractive in other ways so that you were attracting the right people in … then you’re taking that compulsion away.
The Committee heard concerns from some backpackers that the ‘piece rates’ offered by some employers per piece of produce picked are ‘being used as a legal loophole to exploit women and backpackers out of decent pay conditions’. Ms Emma Germano from the VFF told the Committee that piece rates are set by a national award and are:
… supposed to encourage and reward your faster pickers and give people the opportunity to make more than the award wage. It is not supposed to be a mechanism by which we pay under the award wage. It is calculated on your average competent to picker.
Ms Ayliffe suggested that the 88 day requirement be made an ‘optional scheme, incentivised through good wages, to the extent it can be, and only applicable to those businesses that are known and trusted’. Ms Ayliffe also made a number of other suggestions to strengthen protections for backpackers on the 417 visa, such as a public register of approved sponsors and a register of visa holders ‘coupled with a central distribution of workers to compliant businesses around Australia so that you know who is on the scheme at any given time’.
Seasonal Worker Program
The Seasonal Worker Program (SWP) commenced in 2012 and enables seasonal workers from countries in the Pacific region to travel to Australia to address labour shortages in the horticultural industry. Participants in the SWP are sponsored by approved employers and granted a Temporary Work (International Relations) visa (subclass 403).
The Committee heard that Pacific Islanders are particularly susceptible to exploitation. Dr Makiko Nishitani, a research associate at La Trobe University working on a project investigating the experience of Pacific Islanders in rural Victoria, told the Committee that early findings of the research indicate that ‘exploitative conditions are commonly experienced in farm work with which Pacific Islanders engage’, both for temporary migrants and permanent residents. While the degrees of vulnerability may differ for these groups, Dr Nishitani said the SWP is ‘unfortunately becoming more like a hotbed of exploitation’.
The Australian South Sea Islanders Association, representing descendants of South Sea Islanders brought to Australia as slaves, expressed concerns about exploitation of Pacific Island workers on the SWP:
The Seasonal Worker Programme appears to have little oversight, independent auditing or enforcement of employer obligations.
We believe history is repeating with vulnerable workers from Pacific Nations with many cases of workers being underpaid and treated poorly.
Ms Falepaini Maile, President of the Tonga Australia Seasonal Workers Association (TASWA), told the Committee that TASWA had recently conducted an investigation in response to an ‘overwhelming influx’ of complaints about exploitation from Tongan and Fijian workers on the SWP. Ms Maile told the Committee:
TASWA confirmed in its investigation the depth, severity and prevalence of these reported exploitation, abuse and modern slavery practices throughout the Seasonal Worker Program.
Ms Maile shared a range of examples with the Committee, outlining examples of exploitation, underpayment and abuse of Pacific Islander workers, suggesting that the SWP ‘facilitated very favourable conditions for exploitation’. Ms Maile recommended a series of changes to improve the accountability and transparency of the SWP, and to improve support and care for workers, including:
developing a firm monitoring and reporting structure;
improving pastoral care for seasonal workers, including Pacific liaison officers to address any cultural barriers;
reviewing accommodation provisions to give workers more flexibility in choosing accommodation;
improving transparency and accountability, including a register of approved employers; and
regulating the labour hire contracting system.
The Committee notes that the Joint Standing Committee on Migration inquired into the Seasonal Worker Program in 2016 and recommended a comprehensive review of the program. The Committee notes that this recommendation was not supported by the Australian Government, noting that other reviews are underway to address the issues raised, including by the Migrant Workers’ Taskforce.
Illegal migrant workers
The Committee heard concerns about conditions for migrant workers who may be working in breach of their visa conditions, particularly on tourist visas and other visas without work rights.
The Committee heard suggestions to create a migration pathway for people working illegally to remain in Australia and report illegal conduct. The Salvation Army Freedom Partnership recommended:
Create incentives for workers to report unlawful workplace conduct by creating a temporary immigration mechanism allowing exploited workers a right of stay to remain legally in Australia to pursue civil action against offending employers.
WEstjustice’s Not Just Work report recommended 10 steps to stop the exploitation of migrant workers, as well as the following proposed changes to Australia’s visa regime to protect worker who may be breaching their visa conditions:
introducing a proportionate system of penalties for visa breaches;
ensuring workers are able to remain in Australia while legal proceedings are concluded; and
ensuring visa holders have clear paths to permanent residency.
The Redfern Legal Centre recommended introducing a new Ministerial Direction to encourage reporting of workplace exploitation by international students to provide for:
… a decision making protocol which, in appropriate cases, provides for a warning or financial penalty as an alternative to visa cancellation where there has been a breach of working conditions under a student visa.
Submitters highlighted that, in many cases, migrants working illegally, will subject themselves to exploitative conditions to avoid being caught and deported. Dr Segrave told the Committee :
There are many people who are willing to work for less and who recognise that their situation is exploitative, but it’s better than not working. So we need to recognise that in order to start responding.
Dr Segrave highlighted that, for migrants working illegally, the fear of being charged with breaching their visa conditions drives people into exploitation:
All of those [illegal] workers are people who can’t get a working visa here ... They know they’re not being paid correctly. They know that their accommodation’s bad or not great ... They know they’re paying a lot for it, but that’s okay, because they'll do that for as long as they can before they essentially get caught and removed.
Similarly, Mr Dean Wickham, Executive Officer at the Sunraysia Mallee Ethnic Communities Council, told the Committee:
With a lot of the people who live in Robinvale—and it also happens in Mildura—there are jokes made about people running into the fields when they see a white car driving onto a farm. That is an indicator of vulnerability right there …
These submitters suggested establishing a ‘firewall’ between immigration and other regulators to provide safe and confidential avenues to report unlawful workplace conduct.
Amnesty for illegal workers
At its Mildura hearing, the Committee heard a number of suggestions to improve protections for illegal migrant workers. Ms Emma Germano from the VFF, suggested introducing an amnesty for illegal workers to allow workers to come forward without risk of being deported for breaching their visa conditions:
Once illegal workers are no longer illegal, they have the full rights of the law to support them and to protect them. Whilst they are not legal workers, they are never going to come forward, no matter what hotline we put in place, what laws the Fair Work Ombudsman has or how many raids are done.
Ms Caterina Cinanni, President of the National Union of Workers, supported the proposal for an amnesty:
The amnesty is around allowing workers who are currently in exploitative arrangements to speak out. We believe that that’s fundamentally important to allow workers the freedom to speak out without the risk of not just losing their job but also, effectively, being deported if they do.
Dr Segrave from Monash University told the Committee that an amnesty:
… is potentially part of a solution to allow people a pathway to be here for a certain amount of time, but I don’t think there is any way to talk about how to address exploitation without talking as well about how we manage migration and labour more broadly.
Ms Germano also strongly suggested introducing a specific visa for agricultural workers to address labour shortages in the horticultural sector. Ms Germano proposed that workers who come forward during the amnesty could be transferred to this proposed agricultural visa:
Workers need to be from the right places. It cannot be based on what is in fashion or on trend with regard to the Australian government’s perception of doing good deeds abroad. It needs to be about getting fruit and vegetables picked. It needs to be about giving people the economic opportunity to come to our country, work in spaces where Australians don’t want to work and take that money home.
Ms Germano suggested that an agricultural visa would create a ‘pathway to compliance’:
Putting them on some type of agricultural visa means we can create a pathway to compliance. You cannot expect an industry where the issue is systemic to become compliant from one minute to the next—right, bang, these are what the rules are; everybody’s got to be compliant. The reality is we don’t have enough people to pick our fruit and vegetables. So farmers won’t send those workers home, labour hire contractors will continue to exploit them, and those workers will continue to stay in the system.
Mr Dean Wickham, from the Sunraysia Mallee Ethnic Communities Council in Mildura, told the Committee that seasonal workers should be seen as ‘skilled migrants’:
… the people who are out there picking our fruit to export-quality standard are skilled workers. They are not low skilled; they are skilled. In this particular economy, Robinvale and Mildura, these guys are the engine room of our community, and our big farmers appreciate it.
Submitters highlighted that a range of other visa conditions may also contribute to vulnerability. For example, Anti-Slavery Australia suggested that partner and family visa conditions can leave visa holders vulnerable to exploitation, including forced marriage, by their sponsors.
To address these risks, Anti-Slavery Australia recommended developing ‘proven, effective and timely monitoring’ of all Australian visa schemes to ‘assess whether particular visas or schemes are linked to exploitation through human trafficking and slavery’.
Australian government response
The Australian Government submitted that is has introduced a number of measures to improve Australia’s visa framework to mitigate the risk of labour exploitation for migrant workers.
The Australian Government noted that employers sponsoring temporary sponsored skilled workers are ‘subject to a range of sponsorship obligations that protect workers’:
DIBP takes an intelligence led, risk-based approach to monitoring these employers, including working closely with the FWO. DIBP applies preventative measures through educational visits and sponsor self-audits to improve compliance with obligations. In higher risk cases, DIBP conducts desk-audits and site visits (announced and unannounced). If a sponsor is found to have failed an obligation, DIBP institutes appropriate action, which may take the form of imposing administrative sanctions, issuing infringement notices, or applying to the Federal Court for a civil penalty order.
The Australian Government noted that further reforms to strengthen the temporary skilled migration program include:
reducing the period that visa holders can remain in Australia after their employment ceases from 90 days to 60 days;
introducing civil and criminal penalties for people who request and/or receive payment for a migration outcome;
introducing a sponsor obligation to ensure that sponsors do not engage in recruitment practices that discriminate against Australian workers in favour of overseas workers; and
introducing a requirement for sponsors to comply with an obligation to not engage in discriminatory work practices.
In relation to the Working Holiday Maker program, the Australian Government noted that new regulations took effect on December 2015 that aim to remove ‘any indirect incentive for Working Holiday Makers to enter into unlawful workplace arrangements with employers’:
Under these regulations, applicants applying for a second Working Holiday visa (subclass 417) must provide evidence that their ‘specified work’ (completed in order to acquire eligibility for a second visa) was remunerated in accordance with the relevant Australian awards and legislation. The same requirement has also been applied to applicants under the second Work and Holiday visa (subclass 462) programme since its commencement on 19 November 2016.
The Committee notes that the Migrant Workers’ Taskforce (see Box 9.3) is currently examining underpayments to migrant workers, exploitation of migrant workers by ‘rogue’ labour hire operators, operation of the Working Holiday visa program and enforcement measures to target unscrupulous employers.
The PJCLE noted that the issue of visa protections has been examined in detail by the Senate Education and Employment References Committee’s 2016 report, A National Disgrace: The Exploitation of Temporary Visa Holders. This inquiry also investigated the exploitation of international students on temporary visas in 7-Eleven stores.
The PJCLE considered that, in light of the 2016 report, it was not necessary to examine visa protections in detail, but did recommend strengthening visa protections where a visa holder has been subject to modern slavery.
The Committee is concerned by evidence that suggests visa conditions may create conditions of vulnerability for migrant workers, particularly backpackers and Pacific Islanders on the SWP.
The Committee is also concerned by evidence that visa holders working in breach of their visa conditions are particularly vulnerable to exploitation by unscrupulous employers and brokers.
The Committee recognises the extensive work the Australian Government has undertaken to try to prevent labour exploitation and improve protections for migrant workers to date.
The Committee acknowledges that these issues and concerns have been addressed in detail by a number of other inquiries. The Committee also notes that the Migrant Workers’ Taskforce is currently examining these issues.
The Committee considers that the Migrant Workers’ Taskforce is the most appropriate body to investigate many of these matters in further detail. The Committee is of the view that, as part of its deliberations, the Migrant Workers’ Taskforce should consider the evidence to this inquiry, particularly in relation to:
reviewing and developing a monitoring scheme to ensure Australia’s visa framework and visa conditions do not create conditions of vulnerability to exploitation;
improving protections for Working Holiday makers during the three month specified work requirement;
introducing an amnesty for illegal workers to come forward and report cases of exploitation;
introducing a specific agricultural worker visa; and
improving the conditions for workers on the SWP.
The Committee agrees that the reliance of migrant workers, including Working Holiday visa holders, on their employers or sponsors to ‘sign-off’ on their visa requirements creates conditions of vulnerability to exploitation, as well as modern slavery. Further, the Committee is of the view that the Australian Government should change or eliminate ‘tied’ visa conditions to reduce the vulnerability of visa holders to exploitation and modern slavery.
The Committee recommends that the Australian Government, particularly through the Migrant Workers’ Taskforce:
urgently review Australia’s visa framework for migrants to replace or eliminate ‘tied’ visa conditions, such as employer sponsorship and sign-off requirements, that often create conditions of vulnerability to exploitation and modern slavery, particularly in relation to the following visa categories:
Working Holiday visa (subclass 417) (such as by removing the 1263 form given other options for verification are now available);
Work and Holiday visa (subclass 462);
Temporary Work (International Relations) visa (subclass 403) (Seasonal Worker Program visa);
Training visa (subclass 407);
Temporary Activity visa (subclass 408);
Temporary Work (Skilled) (subclass 457);
Visitor visa (subclass 600);
Student Visa (subclass 500);
Partner Visa (subclass 309 and 100);
Partner Visa (subclass 820 and 801); and
Prospective Marriage Visa (Subclass 300).
develop a monitoring scheme for Australia’s visa framework for migrant workers to ensure that visa conditions, for both existing and new visas (such as the replacement for the 457 visa), do not create conditions of vulnerability to exploitation and modern slavery;
introduce specific measures to improve flexibility for migrant workers to change employers and reduce conditions of vulnerability to exploitation and modern slavery;
introduce specific measures to improve protections for Working Holiday visa holders during the three month specified work requirement;
introduce specific measures to improve protections for workers on the Seasonal Worker Program, including by introducing Pacific liaison officers;
introduce specific measures to prevent exploitation in the agricultural sector, including by granting an amnesty for illegal workers and introducing a specific agricultural worker visa;
provide a safe avenue for workers to report unlawful workforce conduct, exploitation and modern slavery (through the proposed modern slavery hotline or other means) and to remain in Australia while their cases are considered;
change visa requirements for ‘tied’ visas to reduce the vulnerability of visa holders to exploitation by employers and other sponsors; and
review the adequacy of existing penalties for employers found to be exploiting workers.
Information and incentives
The Committee heard that protections for exploited workers could be improved by increasing access to information and providing incentives to encourage reporting.
Information for workers
Submitters highlighted the importance of ensuring that migrant workers are provided with accurate and relevant information and advice on their legal rights and responsibilities in their own language.
Submitters recommended that community groups and unions be supported to deliver this information to migrant workers. The Salvation Army Freedom Partnership submitted that merely providing written information to migrant workers is ‘inadequate’, and recommended funding community based organisations to:
… deliver mandatory orientation sessions for all work-related visa holders and their family members - to provide meaningful and sustained linkages to community based support and to reduce social isolation. Many people on temporary work visas come from cultures where face-to-face contact is vital to having the trust to report exploitation.
Similarly, the Australian Council of Trade Unions (ACTU) recommended funding community organisations and unions to:
… provide all arriving visa holders with education and contacts in their languages. This would create relationships of trust allowing exploited workers to remain legally in Australia to pursue civil action against offending employers.
The Committee notes that these issues, including the need to support community organisations and unions to deliver information, were considered by the PJCLE. The PJCLE found that exploitation of migrant workers in Australia could be reduced by ensuring workers were better aware of their legal rights and obligations. The PJCLE recommended that the Australian Government extend the pre-departure briefings and information provided under the Seasonal Worker Program to other categories of visa holders, and introduce post-arrival briefings to ensure migrant workers are provided relevant information from the Fair Work Ombudsman.
Incentives for reporting
As noted in Chapter 6, victims face many barriers to reporting cases of modern slavery. Anti-Slavery Australia noted that victims of forced labour and exploitation face many of the same barriers, including:
… lack of personal freedom, lack of evidence or legitimate work contracts, linguistic, cultural or social isolation, distrust and fear of government/authorities, control through debt, fear of retaliation from employers, fear of deportation or incarceration and lack of understanding of Australian workplace laws.
Submitters highlighted the need to develop incentives to encourage migrant workers and members of the community to come forward to report cases of exploitation. The Salvation Army Freedom Partnership recommended that:
The most important intervention at this stage is to alleviate the power an unscrupulous employer has over vulnerable workers and create incentives for reporting workplace violations.
Ms Jenny Stanger from the Salvation Army told the Committee that the current focus on penalties and deterrence, rather than incentives, reduces the likelihood of victims coming forward to report exploitation:
Given that a significant proportion of cases of labour exploitation are discovered through worker complaints, it is problematic that the policy response has focused on deterrence rather than incentives. While creating a liability for unlawful conduct, penalties do not disrupt the power imbalance within exploitative employment arrangements nor do they facilitate detection of that conduct. Thus, while well intended to reduce exploitation, these policies could strengthen the leverage exploitative employers have over employees. Consequently, it is less likely that workers, including trafficking victims, will complain to and cooperate with authorities for fear that they themselves will be seen as criminals.
The Committee heard that raising awareness of modern slavery and exploitation in the community is integral to incentivising reporting. Ms Jenny Stanger told the Committee that current awareness efforts have not focussed on the community:
Fear, shame, mistrust of authorities and ignorance of rights are reasons why victims may not seek help. As a result, a robust anti-slavery framework must be proactive in raising awareness amongst first responders and the public. To date, awareness-raising activities have been concentrated in certain industries or in limited urban areas. Government resources for outreach are also limited and/or concentrated at the federal level, which means that many individuals who are likely to encounter victims in the community are unaware of the indicators and available services.
The Committee notes that a national survey of community awareness by the Australian Institute of Criminology has highlighted that human trafficking is ‘misunderstood and unrecognised’ and contributes to its low reporting as a crime.
During its visit to the UK in April/May 2017, the delegation from the Committee heard that community awareness was one of the key challenges to the implementation of the UK Modern Slavery Act.
The UK Home Secretary, the Rt Hon Amber Rudd MP, submitted that fighting hidden crimes like modern slavery ‘requires everyone in society to shine a light on the issue’ and that it ‘must be made visible’. The Home Secretary noted that awareness of modern slavery in the UK ‘has been critical to driving home the message that modern slavery is happening right here, right now’.
The UK Commissioner, Mr Hyland, told the Committee that engaging with communities is central to raising awareness about modern slavery and how to report cases of exploitation:
I think it is about engaging with communities. That is where the NGOs have a lot of influence and where the big organisations, faith groups and the community leaders have real influence to say, ‘This is what you do.’
One incentive to raise awareness suggested by submitters was the establishment of a public helpline to report cases of possible exploitation. Ms Emma Germano from the VFF told the Committee of the importance of encouraging cultural change to the way exploitative practices are identified and addressed:
… it comes down to a culture of understanding. That culture has to be driven at a lot of different levels, so, yes, when someone's applying for a visa, the government should be providing all the information and making it accessible to them. At the very least, people should be given a phone number that they can call when they don’t understand whether or not their rights are being infringed upon. Right now, that hotline doesn’t really exist.
Like many submitters, Ms Germano expressed concerns that the existing reporting mechanisms administered by the Fair Work Ombudsman (FWO) are under-resourced and the ability of the FWO to respond to complaints as ‘very, very low’.
At its Mildura hearing, the Committee heard from Ms Robyn Horvath, who provides free advice, support and accommodation to backpackers in the Morwell region. Ms Horvath told the Committee that a helpline would assist backpackers who may be subject to exploitation:
… because as soon as they ring up or Facebook message me, I go: ‘Okay, who can I tell? Yes, I tell them about Fair Work. I tell them about the police or a law adviser. Are they able to get free legal aid, and do they qualify for that? Where can I point them?’ If I had a hotline, that would be one [recommendation].
During its visit to the UK, the delegation from the Committee heard that the UK Government has partnered with an NGO, Unseen UK, to deliver a Modern Slavery Helpline and Resource Centre to improve community awareness.
Box 9.7 outlines the details of the UK Modern Slavery Helpline and Resource Centre.
Box 9.7: Modern Slavery Helpline and Resource Centre
Unseen UK administers the Modern Slavery Helpline and Resource Centre. The Helpline is confidential and available 24/7, 365 days a year for anyone wanting help, information or support regarding any modern slavery issue.
Unseen UK submitted that the Helpline is a ‘vital tool in the fight against modern slavery’. The helpline, on average, receives 75 calls per week and has worked hard with police forces, the National Crime Agency, the Gangmasters and Labour Abuse Authority, Border Force and NGOs to raise awareness of the issue and ensure that people know what to do if they suspect a situation of modern slavery. Unseen UK suggested that:
Having practical, effective channels available to provide advice and guidance, such as a helpline – independent from, but supported by the Government – is a very effective way of raising awareness and helps to implement the intentions of legislation which, in isolation, can have limited effect.
Ms Rosie Ayliffe told the Committee that the UK example could have a positive impact in Australia:
… a national campaign is suggested to highlight the signs of modern slavery and exploitation, with a public reporting line, which is something we've just introduced in the UK and is proving really successful.
The Committee agrees that the information on employment rights and responsibilities provided to migrant workers could be improved. The Committee agrees that relevant organisations should be supported to provide advice to migrant workers on their employment rights and mechanisms for reporting cases of concern. The Committee agrees with recommendation 10 of the PJCLE to improve the information available for migrant workers through expanding pre-departure briefings and information and introducing post-arrival briefings.
The Committee recommends that these post-arrival briefings should include information on:
offences against the withholding of passports under the Foreign Passports (Law Enforcement and Security) Act 2005;
offences under Divisions 270 and 271 of the Criminal Code Act 1995;
employment rights and responsibilities, including the requirement for employers to provide payment summaries on request as well as advice on where to report breaches of employment rights;
details on specific visa requirements, including information on options for demonstrating compliance with work requirements; and
the modern slavery hotline, and where else to go to report offences and exploitation.
The Committee agrees that incentives should be developed that disrupt the power imbalance between perpetrators of modern slavery and victims.
The Committee considers that raising community awareness and providing information through a national hotline could assist in creating incentives to report cases and encourage victims and members of the community to come forward. The Committee recommends the introduction of a national hotline similar to the hotline administered in the UK by Unseen. The Committee considers that this hotline would complement the existing advice and reporting provided by the Fair Work Ombudsman.
The Committee recommends that the Australian Government:
review and expand pre-departure briefings and information on Australian employment rights and responsibilities currently available to all visa holders eligible to work in Australia (including information given upon application for a visa online or otherwise); and
introduce post-arrival briefings to ensure migrant workers are provided with relevant information from the Fair Work Ombudsman and other relevant bodies.
The Committee recommends that the Australian Government support government and non-government organisations to deliver these post-arrival briefings to provide advice to migrant workers on their employment rights and responsibilities, accommodation options and mechanisms for reporting cases of concern, including via the recommended modern slavery hotline (see recommendation 47).
The Committee recommends that the Australian Government introduce measures to incentivise the reporting of modern slavery and exploitation, including by introducing a national modern slavery hotline available via phone and online. The functions of the hotline should include, but not be limited to:
providing information on the indicators of labour exploitation and modern slavery;
providing information about mechanisms to report cases of labour exploitation and modern slavery;
the ability to report potential modern slavery and exploitation abuses and offences;
providing advice on visa conditions; and
referring matters to law enforcement and/or support services.
The modern slavery hotline should be accessible to culturally and linguistically diverse communities and people with a disability. The public should also be made aware of this hotline via national efforts to raise public awareness about modern slavery, for example by commencing a national television and online advertising campaign.
Labour hire licensing
As noted above, submitters highlighted that exploitation is particularly prevalent in the labour hire sector.
Gangmasters and Labour Abuse Authority
Submitters suggested that an Australian scheme could be based on the UK Gangmasters and Labour Abuse Authority (GLAA). Box 9.8 outlines the role of the GLAA in the UK.
Box 9.8: Gangmasters and Labour Abuse Authority
The Gangmasters and Labour Abuse Authority (GLAA) is a Non Departmental Public Body (NDPB) established by the UK Gangmasters (Licensing) Act 2004. The GLAA was established following the deaths of 23 immigrant cockle pickers working illegally for a labour hire firm at Morecambe Bay.
The GLAA administers a licensing scheme that regulates businesses that provide workers in agriculture, horticulture and shellfish gathering. Labour providers must have a GLAA license to work in the regulated sectors and can be charged with a criminal offence for supplying workers without a license.
From 1 October 2016, changes to the GLAA were introduced in the Immigration Act 2016 to strengthen its powers to investigate labour abuse, including:
changing its name to the Gangmasters and Labour Abuse Authority;
providing it with additional powers to investigate abuse allegations
broadening its remit to cover the entire UK labour market; and
creating specialist roles to investigate cases of severe exploitation.
During its visit to the UK in April/May 2017, the delegation from the Committee met with officials from the GLAA and heard about the important role it plays in licensing and monitoring labour hire companies and in investigating cases of labour abuse and exploitation.
The UK Independent Anti-Slavery Commissioner (UK Commissioner), Mr Kevin Hyland OBE, told the Committee that the GLAA plays an important role in the UK Government’s efforts to combat modern slavery:
We see a real nexus between labour exploitation and modern slavery. That is why our Director of Labour Market Enforcement and our Gangmasters and Labour Abuse Authority have a statutory role to meet. There are opportunities to intervene and prevent by identifying when things are going wrong ... We need to make the people that are in those positions realise that they are being exploited and are victims of modern slavery, and how they come out of that. In the UK many of those are foreign nationals, so there will be a number of issues around language, trusting the authorities and their immigration status that may be barriers for them to come forward.
Similarly, Ms Caroline Haughey, who was commissioned by the UK Government to conduct a review of the UK Act, told the Committee that the GLAA plays an effective role in combatting modern slavery:
The impression I get is that it is effective. I acknowledge that people in agriculture and in any industry do not want more regulation, but I ask this question: how do you know that standards are being adhered to? How do you know that people who are coming in for seasonal work are being properly and fairly treated? How do you know that criminals aren’t benefitting from exploiting vulnerable people and laundering money that should be going back into the state? My personal opinion is that the GLAA has gone a significant way in ensuring that we prevent that sort of offending.
The UK Home Secretary submitted that, as part of the reforms introduced with the Modern Slavery Act 2015 (UK Act), the UK Government expanded the powers of the GLAA ‘giving it stronger police-style enforcement powers to investigate serious offences relating to worker exploitation across the UK economy’ and ‘significantly increased’ its budget.
The UK Commissioner, Mr Hyland, told the Committee that the GLAA’s new powers introduced in 2016 would ‘make a real change’ to its ability to identify and investigate cases of labour exploitation:
… it is a very important role and it gives a focus to the labour industry and labour markets ... Their new powers have been crucial in order to give them across the market place power because we do know that some criminals moved from agriculture and the fisheries into other areas such as construction and food processing, because they realised that they were being focused upon.
Mr Darryl Dixon, Director of Strategy at the GLAA, told the Committee that the introduction of its new powers has seen an increase in the number of potential victims referred to the National Referral Mechanism (NRM). Mr Dixon said that in 2016-17, the GLAA made 48 referrals to the NRM and to-date in 2017-18, has made 27 referrals. Mr Dixon noted:
… we are seeing increased activity where we are going to identify more potential victims of trafficking … for the whole of the UK.
Mr Dixon told the Committee that one of the key priorities for the GLAA is:
… raising the awareness of business and of workers of our existence and powers and try to broadly improve their confidence in coming forward to us to assist in dealing with these sorts of issues.
In addition to raising awareness of its new role, the GLAA is investigating ways to better investigate and identify exploitation. Mr Dixon told the Committee that one project the GLAA is ‘at the very edges of trying to think about’ is working with utility companies and data experts at Nottingham University to use information on energy usage to identify residences that may be housing exploited workers:
For example, when workers come to the UK, quite often the exploiter will control the accommodation they are in and will quite often overcrowd that accommodation. One of the things that is going to happen with an overcrowded accommodation where there are workers who may be on shifts during the day and the night—what we term hot-bedding, where there are workers who sleep during the day and during the night—is that there is going to be an increased use of the utility, whether that's heating or water.
Support for a national labour hire licensing regime
A number of submitters recommended introducing a sector-specific scheme for the labour hire industry to minimise the exploitation of workers.
The ACTU suggested that a licensing and regulation scheme would ‘compel labour hire agencies to stop exploiting workers and create the threat of losing their right to operate if they do’.
Submitters emphasised the importance of establishing a national scheme, rather than individual state-based schemes. Mr Peter Crisp MLC, the local member for the Mildura region, provided the Committee with his submission to the Victorian Inquiry into the Labour Hire Industry and Insecure Work that recommended the establishment of national labour hire licensing scheme. Mr Crisp noted that:
… a response from Victoria will only apply in Victoria and for those horticultural regions like Sunraysia which are on a state border a single state solution may well only encourage border hopping.
For the measures recommended in the Victoria report to be effective there really needs to be a Commonwealth response to this issue.
Similarly, Mr Dixon from the GLAA warned about the ‘displacement effect where exploitation drifts towards where there is little and a lot lower oversight’. In a state-based system, Mr Dixon noted:
What you might then have is a situation where a company provides workers into the Victorian state area from a less regulated area where the Victorian state government might not be able to regulate it in precisely the same way. There would be what we call differential enforcement and, consequently, there'll be a greater exploitation of workers in those areas where there is less regulation. It creates an uneven playing field for business.
The NFF recommended supporting industry-led certification schemes, rather than a state-based licensing scheme. Mr Ben Rogers from the NFF told the Committee that they are encouraging the introduction of a voluntary certification scheme called StaffSure administered by the Recruitment and Consulting Services Association Australia & New Zealand (RCSA):
It is a voluntary certification scheme which audits the whole range of practices and systems which these labour hire agencies have to use to make sure they're using best practice—that they are not taking advantage of anyone and they're not breaking any laws. It provides them with certification which farmers then look for to ensure that they are engaging with the people who are doing the right thing rather than these dodgy operators. They will then only use those people who can demonstrate that they have these best practices and that they're not going to be engaging in those sorts of behaviours and conduct you just described there.
Mr Rogers also highlighted the example of the Fair Farms Initiative (as discussed in Chapter 5), an industry-led scheme to educate employers and growers about their responsibilities and provide third-party certification of labour systems.
Some witnesses expressed concerns about the efficacy of a labour hire scheme. Mr John George, who owns and operates two backpacker hostels in Mildura and assists backpackers in finding work, told the Committee that the key problem is that existing laws against exploitation are not being adequately enforced:
We would say increased regulation of labour hire contractors, as is being talked about, if implemented will lead to increased regulation of labour hire contractors and, using the British example, presumably increased cost for labour hire contractors to operate, which obviously will be passed on to prospective host employers. We say all the regulation there needs to be to fix almost 100 per cent of problems already exists; it is just not complied with or can’t be policed adequately.
Submitters and witnesses also warned that a labour hire licensing scheme is only one part of the broader response, as outlined in this report, and should not be seen as a ‘silver bullet’. Ms Germano from the VFF noted that a survey of its growers by the VFF found that ‘only 50 per cent of them are actually using labour hire contractors’. Ms Germano explained:
… a licence doesn’t stop someone from speeding when they’re driving down a highway. There has to be a cultural change. The licence, in itself, is a good step because it’s saying that we’re going to address this part of the supply chain or the labour chain, but it is certainly not going to be the silver bullet that I think many people claim it will be.
Submitters and witnesses highlighted the need to ensure that a national licensing scheme be coupled with improved resources for the FWO and other relevant agencies to investigate and prosecute cases of exploitation. For example, Focus on Labour Exploitation (FLEX) recommended that the Australian Government:
… review and strengthen the operation of the Fairwork Ombudsman, including adequately empowering and resourcing the Ombudsman to carry out proactive investigations and referrals to the Australian Federal Police.
Submitters highlighted that the role of a labour hire licensing scheme in Australia, similar to the GLAA, has been considered by a number of recent Commonwealth and state or territory inquiries. The Committee also heard that the Migrant Workers’ Taskforce is currently is currently considering the regulation of labour hire arrangements.
Table 9.1 outlines these inquiries and recommendations.
Table 9.1: Inquiries into labour hire licensing
Parliamentary Joint Committee on Law Enforcement
Inquiry into human trafficking, slavery and slavery-like practices
No. 12: The Federal Government establish a labour hire licensing regime.
Senate Education and Employment References Committee
Corporate Avoidance of the Fair Work Act
No. 2: Federal and state governments work together to establish labour hire licensing authorities in each state.
Joint Standing Committee on Migration
Seasonal change: Inquiry into the Seasonal Worker Program
No. 9: Implement recommendation 32 of the EERC report (see below).
Senate Education and Employment References Committee
A National Disgrace: The Exploitation of Temporary Work Visa Holders
No. 32: Establish a national licensing regime for labour hire contractors.
Professor Anthony Forsyth, for the Victorian Government
Inquiry into the Labour Hire Industry and Insecure Work
No. 13: That Victoria advocate for a national, sector-specific, labour hire licensing scheme.
Finance and Administration Committee
Inquiry into the practices of the labour hire industry
Unable to reach agreement on whether to introduce a labour hire licensing scheme.
Economic and Finance Committee
Inquiry into the labour hire industry
No. 1: That SA assist the Commonwealth to introduce a labour hire licensing scheme.
The Committee notes that, in the absence of a national scheme, the Victorian Government, the Queensland Government and the South Australian Government have announced plans to introduce state-based labour hire licensing schemes. In October 2017, the NSW Legislative Council Select Committee on human trafficking recommended that the NSW Government advocate through the Council of Australia Governments (COAG) to establish a national labour hire licensing scheme.
The PJCLE recommended the establishment of a national labour hire licensing regime consistent with recommendation 32 of the Senate Education and Employment References Committee, which outlined the proposed scope for the scheme:
The committee recommends that a licensing regime for labour hire contractors be established with a requirement that a business can only use a licensed labour hire contractor to procure labour. There should be a public register of all labour hire contractors. Labour hire contractors must meet and be able to demonstrate compliance with all workplace, employment, tax, and superannuation laws in order to gain a license. In addition, labour hire contractors that use other labour hire contractors, including those located overseas, should be obliged to ensure that those subcontractors also hold a license.
The Committee notes that the government’s response to the Senate Education and Employment References Committee’s report is not yet publicly available.
The Committee recognises that recent Commonwealth, state and territory inquiries have highlighted the role that unscrupulous labour hire companies play in contributing to the exploitation of migrant workers.
The Committee recognises that these inquiries have supported the establishment of a national labour hire licensing scheme. The Committee also recognises that the agricultural industry has taken initiatives to introduce voluntary compliance schemes for labour hire.
The Committee shares the concerns of submitters that the introduction of individual state-based schemes will create a fragmented system. The Committee considers that a consistent, national scheme would be the best mechanism to reduce exploitation.
The Committee recognises that the UK GLAA provides a useful model for Australia to consider in developing its national scheme. The Committee recognises evidence to this inquiry that indicates that the GLAA scheme, coupled with its new investigative powers, is working effectively. The Committee is of the view that the Australian Government should consider some of the measures undertaken by the GLAA in the UK, including monitoring remittances and utility usage, to identify possible cases of exploitation.
While the Committee acknowledges that a labour licensing scheme is no ‘silver bullet’ to stopping exploitation and modern slavery, it considers that taken together with the Australian Government’s existing measures and the recommendations of this report, it will assist to improve protections for migrant workers.
The Committee considers that it is vital that the FWO be adequately resourced to investigate allegations of exploitation, as well as to provide migrant workers with information on employment rights and responsibilities.
The Committee recommends that the Australian Government establish a uniform national labour hire licensing scheme, consistent with recommendations by the Parliamentary Joint Committee on Law Enforcement, the Joint Standing Committee on Migration and the Senate Education and Employment References Committee. This licensing scheme should incorporate random audits and unannounced inspections of labour hire firms to ensure compliance.
The Committee recommends that the Australian Government ensure that the Fair Work Ombudsman is further resourced to investigate allegations of modern slavery and exploitation and to provide all migrant workers with information on employment rights and responsibilities.
Senator David FawcettMr Chris Crewther MP
Joint Standing Committee on Foreign Affairs and Aid
Foreign Affairs, Defence and TradeSub-Committee