Slavery and forced labour
This chapter considers slavery and forced labour in Australia. In
particular, it addresses two distinct issues in respect of these: migrant
workers and supply chains.
The Commonwealth government's most recent Interdepartmental
Committee on Human Trafficking and Slavery (IDC) report sets out the government's
priorities over the next financial year with respect to slavery and forced
labour. Relevantly, the report provides:
In the year ahead, we will...convene a Labour Exploitation
Working Group to develop recommendations on measures to address serious forms
of labour exploitation in Australia. We will respond to the recommendations of
the Supply Chains Working Group convened in 2015–16 to investigate exploitative
practices in industry supply chains.
The implementation of some of these plans has already commenced.
The committee heard a significant amount of evidence from
submitters and witnesses with respect to migrant workers. The following sections
discuss this evidence, focusing in particular on the rights of migrant workers
and their knowledge of them, visa protections and exploitation by some labour
Information for migrant workers
A recurring theme throughout the course of the inquiry was the
rights of migrant workers and the extent to which migrant workers are aware of
them. As a number of submitters and witnesses highlighted, if migrant workers
are unaware of their legal rights and obligations, they may have difficulty
identifying if they are being exploited or may not know where to take their
complaint if they suspect they are.
The Commonwealth government already requires that pre-departure
briefings are conducted for seasonal workers in countries party to the Memorandum
of Understanding (MOU) in support of Australia’s Seasonal Worker Programme
Where the government has approved an employer to recruit seasonal
workers under the SWP, the employer must sign a deed with the government,
setting out the terms of the agreement.
The deed provides that, pursuant to the MOU between the
Commonwealth and participating countries, the Department of Employment (DOE)
publishes 'Implementation Arrangements'—a 'subsidiary document' to the MOU in
support of the SWP—that are made available to an approved employer. A sample
deed and implementation arrangements document is available on the DOE website.
As set out in the 2016 Joint Standing Committee on Migration
report, Seasonal change: Inquiry into the Seasonal Worker Programme, the
implementation arrangements for the SWP provide that:
In order to maximise the benefits, and minimise the risks to
Seasonal Workers of employment in Australia and the adjustments involved, each
Participating Country’s nominated Ministry will ensure Seasonal Workers receive
a pre-departure briefing.
The implementation arrangements state that the briefing will
include information such as wages and conditions offered to seasonal workers;
the role of the Fair Work Ombudsman (FWO); taxation; superannuation and details
of a payslip.
The implementation arrangements also provide that a participating country will
invite representatives with relevant expertise to participate in these
pre-departure briefings, which may include representatives from unions and
returned seasonal workers.
Section 124 of the Fair Work Act 2009 (FW Act) requires
the FWO to prepare and publish the Fair Work Information Statement which
provides information about a variety of issues, including modern awards, the
role of the FWO and the Fair Work Commission, and the right to freedom of
association. Further, section 125 of the FW Act requires employers to provide
the Fair Work Information Statement to employees before, or as soon as
practicable after, the employee starts employment.
The FWO website also has free fact sheets on working in Australia
in 27 different languages, as well as YouTube videos in 14 different languages,
and a free interpreter service.
Despite the government's current work in this area, the committee
heard evidence in support of allocating more resources to pre‑departure
education for migrant workers about their rights, including from the chair of
the newly established Labour Exploitation Working Group,
Ms Fiona McLeod SC, President of the Law Council of Australia (LCA).
The Salvation Army—Freedom Partnership to End Modern Slavery
recommended that the government:
...provide information directly to all migrant workers prior
coming to Australia about their rights and responsibilities in a language they
understand, including how to seek help from both relevant government
authorities and non-government organisations. This should also include access
to free, confidential legal advice by phone.
Professor Jennifer Burn, Director, Anti-Slavery Australia also
saw the need for further information to be provided to migrant workers, as
illustrated by the following exchange:
CHAIR: Do you think there should be more information
and education for people migrating to Australia for work purposes or on holiday
visas so that they are actually aware of their rights in this respect?
Prof. Burn: Yes. Information should be provided pre-departure
and on arrival in an appropriate language. Additionally, where we know that
there are countries which may give rise to cohorts of exploited people, perhaps
there needs to be an even greater focus in those countries. There are
challenges because many visas can now be applied for online. It is no longer
the day that people go to an Australian embassy or consulate to apply for a
visa. Processes are online. Getting information to people is something that can
be a challenge, but it could be incorporated within an online process. Giving
people information on arrival is also critical, as is connecting people in
high-risk areas to other support agencies...it is important that, where we know
there are vulnerabilities and where we know that there are exploited people
coming to Australia holding various visas, including working holiday visas, for
example, we do have a responsibility to make sure that there is extra oversight
in those cases.
Dr Mark Zirnsak, Director, Social Justice, Uniting Church in
Australia, Synod of Victoria and Tasmania (UCA) suggested that exploitation
could be reduced by ensuring that pre-departure briefings are conducted by a
party independent from the employer, such as a trade union, with the same
approach applying to post-arrival briefings and pastoral care.
Such information sessions and care could also be given to other visa holders:
...for those that are particularly work focused, having those
pre- and post‑departure briefings would be a better model to go for
people. The face to face for many of the countries in our region is much more
culturally aligned and is much more effective than simply giving people a piece
of paper or sending them a file and saying, 'If you get into trouble, phone
this number.' Our experience is that generally the workers do not do that. They
will put up with stuff until, really, they feel that there is no option and
they feel that threat of removal. Often, the biggest threat over them is that
they feel that the employer has the ability to remove them.
The committee shares the view of submitters and witnesses that
exploitation of migrant workers in Australia could be decreased by ensuring
that these workers are better aware of their legal rights and obligations, and
are provided with accurate information in their own language both before
leaving their home country and after arriving in Australia.
The committee acknowledges the work already undertaken by the Commonwealth
government in this area, particularly in relation to the SWP; however, the
committee sees value in expanding this work to a wider range of pre-departure
countries and visa holder categories. In the committee's opinion, there is also
merit in engaging with NGOs in contact with particular types of workers in
pre-departure countries and leveraging off their connections with migrant
workers. A particular example of this, in relation to sex workers, is discussed
at paragraph 4.22.
Similarly, the committee suggests that more could be done to
ensure that migrant workers are provided with the information produced by the
FWO, for example via post-arrival briefings.
The committee therefore recommends that the pre-departure
briefings and information currently available through the SWP are expanded to include
a wider range of pre-departure countries and other categories of visa holders
who may engage in work in Australia, and that post-arrival briefings are
conducted to ensure migrant workers are provided with relevant information from
The committee recommends that the Commonwealth government:
expands the pre-departure briefings and information currently
available through the Seasonal Worker Program to a wider range of pre-departure
countries and other categories of visa holders eligible to work in Australia,
introduces post-arrival briefings to ensure migrant workers are
provided with relevant information from the Fair Work Ombudsman.
The committee heard that, without adequate visa support and
protection, some victims of human trafficking, slavery and slavery-like
practices may 'experience great hardship and uncertainty about their future.'
As discussed in chapter 2, support and protection offered through the visa
program is contingent upon victims contributing to police investigations.
Submitters and witnesses identified this as a particular problem
faced by migrant workers, who may have been coerced into working illegally by
their employer and therefore need such protection, but may be unwilling to
engage with authorities for fear of visa cancellation.
The Department of Immigration and Border Protection (DIBP)
explained its role in addressing labour exploitation, including visa
cancellations and application refusal powers:
DIBP works closely with the FWO to support its enforcement
role. As part of this relationship, Taskforce Cadena has been established to
target entities involved in unscrupulous labour hire practices. Suspected
instances of human trafficking and slavery uncovered by this initiative are
referred to the AFP for investigation.
DIBP's approach to reducing instances of illegal work is
through: building awareness of the consequences of employing illegal workers;
creating a credible threat of the consequences for employers and employees
engaging in illegal work activity; and sanctioning businesses that commit work
related breaches of the Migration Act or persist in employing illegal workers.
The aim of all prevention, deterrence, detection and enforcement activity is to
encourage voluntary compliance with migration laws.
There are various safeguards under migration legislation and
policy to mitigate and address the risks of labour market exploitation
depending on the circumstances of the case. Criminal, civil and administrative
sanctions, as well as visa cancellation and application refusal powers are used
under these frameworks to address breaches of the Migration Act.
Some submitters raised the issue of the power of the Minister for
Immigration and Border Protection to cancel visas, and the adverse impact that
this may have on victims of trafficking, slavery and slavery-like offences. For
example, the LCA stated that:
The most significant cancellation powers for the purposes of
this Inquiry fall under sections 109, 116 and 501. Recent and proposed
amendments to these sections serve to further increase the Minister’s already
broad discretionary powers to cancel visas. The [LCA] understands that the
result of these changes has served to undermine Australia’s anti-slavery
policy, by often penalising the visa holder and preventing or inhibiting the
visa holder’s ability to review an adverse decision and/ or seek legal advice
prior to deportation.
The LCA therefore recommended:
...an independent review of the power of the Minister of
Immigration and Border Protection to cancel visas to examine the effect of
these powers on victims of human trafficking, including slavery, slavery-like
practices and people trafficking offences...
The UCA raised similar concerns, stating that the threat of
cancellation of a visa:
...is likely to have the perverse outcome of assisting those
engaged in human trafficking and egregious workplace exploitation by further
deterring victims of such crimes from reporting the crimes against them if they
have been offered a sponsorship related event.
The UCA therefore recommended that:
The [Migration Act 1958 (Migration Act)] be
amended so that the Minister for Immigration and Border Protection is unable to
cancel the visa of a person who has been subjected to human trafficking, forced
labour or slavery offences under the [Criminal Code Act 1995] (Sections
270 and 271). Further, the Minister should be unable to cancel a visa while any
investigation is being conducted into such offences that involve the visa
holder as a likely victim of such offences. The Minister should not have the
power to cancel the visa where the visa holder is of material relevance to any
legal action being taken by relevant law enforcement authorities against the
employer or sponsor of the visa holder.
UnionsWA recounted evidence from the Employment Law Centre of WA
(ELC) to the 2015 Senate Education and Employment References Committee inquiry
into the impact of Australia’s temporary work visa programs on the Australian
labour market and on the temporary work visa holders. The ELC's evidence demonstrated
that some victims were missing out on entitlements for fear of deportation:
...the ELC...informed the committee about the employment law
issues that their clients who are work visa holders continue to face in WA.
Those cases ...
Temporary work visa holders have
been exploited on threat of deportation – e.g. they have been required to pay
for vehicle damage for which they were not responsible or which could have been
recovered on insurance.
Temporary work visa holders have
been subjected to assaults, underpayment of entitlements, threats of
deportation, unreasonable working hours and other forms of mistreatment;
Clients on temporary work visas
decided against enforcing their entitlements or making a claim because they
were concerned about losing their job and being deported.
The Senate Education and Employment References Committee made
the following relevant recommendations in its 2016 report, A National
Disgrace: The Exploitation of Temporary Work Visa Holders:
6.95 The committee recommends that the Fair Entitlements
Guarantee Act 2012 be amended to make temporary visa holders eligible for
entitlements under the Fair Entitlements Guarantee.
6.96 The committee recommends
that the immigration program be reviewed and, if necessary, amended to provide
adequate bridging arrangements for all temporary visa holders to pursue
meritorious claims under workplace and occupational health and safety
8.263 The committee recommends that the Migration Act 1958
and the [FW Act] be amended to state that a visa breach does not
necessarily void a contract of employment and that the standards under the [FW
Act] apply even when a person has breached their visa conditions or has
performed work in the absence of a visa consistent with any other visa
8.269 The committee recommends
that Section 116 of the [Migration Act] be reviewed with a view to
amendment such that visa cancellation based on noncompliance with a visa
condition amounts to serious noncompliance. The committee further recommends
that Section 235 of the [Migration Act] be reviewed with a view to
amendment such that a contravention of a visa condition amounts to a serious
contravention before a non-citizen commits an offence against the section.
9.239 The committee recommends that the identities of migrant
workers who report instances of exploitation to the Fair Work Ombudsman or to
any other body should not be provided to the Department of Immigration and
Border Protection. The committee further recommends that this prohibition
should be written into the Memorandum of Understanding between the Fair Work
Ombudsman and the Department of Immigration and Border Protection.
The evidence before the committee demonstrates that there are
significant concerns that victims of human trafficking, slavery and
slavery-like offences may be subject to visa cancellation, potentially
preventing these victims from assisting police with their investigations, but
also placing these victims in an increased position of vulnerability, including
in respect of recovering entitlements.
Noting that the issue of visa protections has previously been
examined by the Senate Education and Employment References Committee, which
made a number of recommendations on this issue, the committee does not consider
it necessary to examine this issue further.
However, in light of the recommendations by the Senate Education
and Employment References Committee, and those made to this committee by
submitters and witnesses, this committee recommends the strengthening of visa
protections for people who have been subject to trafficking, slavery and
The committee recommends that the Commonwealth government
strengthens visa protections where a visa holder has been subject to trafficking,
slavery and slavery-like offences.
Labour hire companies
Some submitters and witnesses raised concerns about the
prevalence of exploitation of migrant workers by labour hire companies.
As a result, a number of submitters and witnesses supported the establishment
of a licensing regime for labour hire companies.
In the experience of the UCA, 'both in Australia and
internationally, labour hire businesses appear to carry a higher risk of being
involved in human trafficking than other employers, especially in weakly regulated
The UCA identified that:
Licensing regimes for labour hire businesses exists in most
European Union countries, where licensing has gone hand-in-hand with
implementation of the EU Directive on Temporary Agency Workers, as well as Japan,
Singapore and South Korea.
The UCA considered that the introduction of a licencing system
for labour hire companies would be welcomed by many businesses that rely on
labour hire services, businesses that purchase from businesses that rely on
labour hire services, some labour hire businesses themselves, and civil society
organisations working in the area of human trafficking and forced labour.
It was suggested that the introduction of this system would:
Make it harder for criminals and
other unsuitable people to set up or control labour hire businesses;
Make it easier to detect and
identify unethical labour hire businesses;
Make it easier for the users of
labour hire services to know they are dealing with a reputable provider;
Provide a level of safeguard
against phoenix activity;
Make it harder for labour hire
businesses to be set up with ‘front’ people who are not the real owners or
controllers of the business;
Reduce the incidence of human
trafficking and forced labour through labour hire providers;
Reduce the likelihood of people on
temporary work visas will be subjected to unlawful treatment in their wages and
Increase the ability of third
party bodies to find people on temporary work visas in need of assistance, as a
public register of labour hire businesses will make it easier to find where
these businesses are operating.
The UCA therefore recommended that the government:
Introduce a licensing scheme for
labour hire businesses in selected industry sectors where there is evidence of
significant levels of human trafficking, forced labour and/or egregious
exploitation. Such sectors should include agriculture, horticulture, food
processing, construction and hospitality.
Require labour hire businesses in
sectors where there has been significant levels of human trafficking, forced
labour and/or egregious exploitation to have to introduce employees on
temporary work visas to a non-government organization (including unions) that
is able to assist the migrant worker understand their rights and
responsibilities, as is the case in Ireland for domestic workers. This would
act as a significant protective factor against human trafficking and
exploitation. It should be a civil offence for the labour hire business to fail
to facilitate such contact between the temporary visa holder and the
non-government organisation. The Commonwealth Government should establish a
public list of non-government organisations
willing to provide such support
and that it assesses are qualified to provide such support.
As discussed earlier, on 5 May 2016 the Joint Standing Committee
on Migration tabled its report on the Seasonal Worker Program, Seasonal
change: Inquiry into the Seasonal Worker Programme.
That report examined some issues that were also raised with this committee,
such as the exploitation of migrant workers through the use of labour hire
companies. Recommendation nine of that report provided:
The Committee recommends that the Australian Government implement
Recommendation 32 of the Senate Education and Employment References Committee
report on the impact of Australia’s temporary work visa programs on the
Australian labour market and on the temporary work visa holders.
The government's response to that recommendation noted that it
would address Recommendation 32 of the Senate Education and Employment
References Committee report in its response to that committee's report, A
National Disgrace: The Exploitation of Temporary Work Visa Holders.
Recommendation 32 of that report provided:
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
The committee notes that the government's response to the Senate
Education and Employment References Committee report is not yet publicly available.
As this issue has previously been examined by the Joint Standing
Committee on Migration and the Senate Education and Employment References
Committee, which both supported the establishment of a licensing regime for
labour hire companies, this committee does not consider it necessary to examine
this issue further.
However, in light of the recommendations of both the Joint
Standing Committee on Migration and the Senate Education and Employment References
Committee, as well as the evidence presented to this committee in support of
the establishment of such a scheme, this committee also recommends the establishment
of a licensing regime for labour hire companies. The committee notes in
particular the characteristics of the licensing scheme discussed by the Senate
Education and Employment References Committee in Recommendation 32.
The committee also notes that some submitters and witnesses
suggested that oversight or regulation of labour hire companies with respect to
labour exploitation could be within the remit of an anti‑slavery and
trafficking commissioner (for a further discussion of the commissioner, see
The committee recommends that the Commonwealth government
establishes a licensing regime for labour hire companies.
This section addresses the exploitation of workers in the supply
chains of goods and services. The Australian Human Rights Commission (AHRC)
Negative human rights impacts can occur at any level of a
business’s supply chain – from direct suppliers (also known as Tier 1
suppliers) to several layers of subcontractors that supply products and raw
materials to direct suppliers.
A number of submitters and witnesses also made recommendations to
the committee with respect to supply chains.
The prevalence of forced labour in supply chains for goods sold
in Australia was discussed by the International Justice Mission Australia (IJM):
In 2013, ABC reported that some of Australia’s leading
retailers, including Rivers, Coles, Target and Kmart were sourcing clothes from
factories that threatened workers with abuse. Nevertheless, garment
manufacturing for Australian companies in Bangladesh had increased 1500% in the
five years since 2008.
Although not all of the global forced labour exploitation is
linked to global supply chains, and ones that reach Australia, a significant
amount is...Malaysia was one of the top eight exporters of electronic goods in
2013,129 and Guatemala was the fifth largest supplier of coffee to the US in
IJM made a number of recommendations in respect of this issue,
some of which relate to the issue of a modern slavery act, discussed in
chapter 2. Specifically, it was recommended that the Commonwealth government:
Work to ensure that proactive
steps are being taken, modelled off successful transparency legislation
overseas, to eradicate forced labour from supply chains of Australian
Implement and support measures in
both intergovernmental and industry-based responses to forced labour in supply
chains that prioritise investment in local law enforcement.
In its submission, the AHRC discussed a 2015 report that it
produced together with the Australian Centre for Corporate Social
Responsibility and the Global Compact Network Australia, Human rights in
supply chains: promoting positive practice. The research undertaken by
these organisations mapped how Australian businesses, primarily in the finance,
agriculture and food supply sectors, address human rights issues in their
supply chains. The AHRC stated that:
49. Many respondents to the research survey said they have a
responsible sourcing policy. However, clear processes and accountabilities to integrate
human rights standards into supplier practices, effectively identify potential
issues and take corrective action remain largely underdeveloped. The results
suggest that Australian businesses are still falling short in gaining
visibility and adequately responding to potential human rights risks that may
exist at different stages of the supply chain.
50. The report points to opportunities for increasing
visibility and power to influence human rights outcomes through stronger
relationships and partnerships. However, the results also highlight the need
for further regulation measures.
The AHRC made the following recommendations in respect of supply
Recommendation 7: The Australian Government look to develop
transparent measures to regulate trafficking and slavery within supply chains.
Recommendation 8: The Australian Government develop a
national action plan on business and human rights.
The issue was also discussed extensively by the UCA. Over two
years, the UCA together with the Oaktree Foundation conducted a study
'examining what jurisdictions around the world were doing to address the issue
of goods being imported where there was a risk slavery, forced labour and human
trafficking were involved in the production of the goods'.
The report of this study, Unshackling Laws Against Slavery,
was launched in late 2011.
The UCA stated in its submission that '[t]here can be no doubt there are goods
entering Australia that are produced using slavery or trafficked labour'.
While the Australian Government has made it an offence for
any Australian individual or company to engage in any financial transaction
involving a slave, regardless of where it occurs in the world, no effort is
currently made to identify Australian companies importing goods that slavery in
their production. The result is that no Australian company has been prosecuted
for being associated with slavery in the production of goods they have imported
The UCA noted that legislation that requires 'businesses from certain
high risk industries to publicly disclose what actions they are taking to
ensure the products and services they are importing or selling do not have
slavery, forced labour or human trafficking involved in their production'
already exists in the United States (US), through the California
Transparency in Supply Chains Act 2010 and in the United Kingdom (UK),
through the Modern Slavery Act 2015.
These acts require public disclosure of all businesses above a certain level of
The UCA therefore advocated for the introduction of legislation
requiring businesses 'from certain high risk industries' to publicly disclose
actions they are taking to ensure that they are not importing or selling
products and services that have slavery, forced labour or human trafficking
involved in their production.
In France, the recently adopted Corporate Duty of Vigilance
Law 2017 goes further than the laws in the US and the UK. It:
...establishes a legally binding obligation for parent
companies to identify and prevent adverse human rights and environmental
impacts resulting from their own activities, from activities of companies they
control, and from activities of their subcontractors and suppliers, with whom
they have an established commercial relationship.
The companies covered by the law – it only applies to the
largest companies established in France - will assess and address the risks of
serious harms to people and the planet under annual, public vigilance plans.
Liability would apply when companies default on their obligations, including
the absence of a plan or faults in its implementation.
Although AGD did not address the issue of supply chains or the
work of the Supply Chains Working Group in its submission, the AGD website
provides the following information about this issue:
In 2014, the Minister for Justice, the Hon Michael Keenan MP,
announced the formation of the Supply Chains Working Group to examine ways to
address serious forms of labour exploitation in the supply chains of goods and
services. The working group comprised experts from government, business,
industry, civil society, unions and academia. The working group finalised its
work programme in December 2015 and reported to the Government in early 2016.
Following the working group’s report, the Government announced that it would
strengthen its response to human trafficking and slavery, including by:
creating a suite of
awareness-raising materials for business
further considering the
feasibility of a model for large businesses in Australia to publicly report on
their actions to address supply chain exploitation
examining options for an awards
program for businesses that take action to address supply chain exploitation,
exploring the feasibility of a
non-regulatory, voluntary code of conduct for high risk industries.
In its evidence to the committee, and consistent with the
government's most recent IDC report, the AGD noted that the Commonwealth
government is 'considering Australia's response to serious forms of labour
exploitation, including in supply chains'.
The committee shares the concerns raised by some submitters and
witnesses that forced labour exists in the supply chains of some goods and
services sold in Australia. The committee is supportive of measures that seek
to address this issue; in this regard, the committee notes that the Joint
Foreign Affairs, Defence and Trade Committee is examining in its inquiry into a
Modern Slavery Act:
the prevalence of modern slavery in the domestic and global
supply chains of companies, businesses and organisations operating in
identifying international best practice employed by governments,
companies, businesses and organisations to prevent modern slavery in domestic
and global supply chains, with a view to strengthening Australian legislation.
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