This chapter turns to matters related to several additional measures needed to further assist vulnerable workers, not only in the retail cleaning industry, but also more generally across Australian workplaces.
Outreach to culturally and linguistically diverse communities
Numerous inquiry submitters highlighted the need for specific strategies and initiatives to assist workers from cultural and linguistically diverse (CALD) backgrounds to navigate the employment law framework and access assistance in the event that they are exploited.
As noted in Chapter 2, the cleaning industry is characterised by a high proportion of workers who were born overseas or have English as a second language. Low entry requirements mean the sector has minimal language or skill set barriers, making it attractive to migrants and international students. In this regard the Federation of Ethnic Communities' Councils of Australia (FECCA) submitted:
Migrants and CALD Australians constitute a significant proportion – if not majority – of Australia’s cleaning workforce. This includes Australian citizens and permanent residents of migrant and refugee background, international students, migrant workers and other temporary visa holders such as partners of students and skilled migrants.
FECCA observed that the Fair Work Act 2009 (Fair Work Act) and its associated regulations, rules and awards created a complex system that could prove difficult for vulnerable workers to navigate, particularly if they have limited English, limited time and limited knowledge of government and community infrastructure.
FECCA elaborated on what approaches could be taken to address this problem:
More information needs to be provided in simple English, languages other than English, through multiple channels and be industry specific. Efforts should be made to make this information available to all visitors to Australia with rights to work as well as any other visa holders at risk of exploitation. All information provided should give links to advocates, legal services as well as the FWO to help workers to pursue their rights where they believe they are being exploited. Adequate funding of ethno-specific organisations with knowledge in worker rights as well as resources for community legal services for employment-related caseload is essential. Because of the intersection between migrant labour exploitation and immigration issues, cases of worker exploitation involving CALD Australians and migrant workers can be very complex.
In making this commentary, FECCA acknowledged the efforts of the Fair Work Ombudsman (FWO) in engaging with Australia's multicultural sector and making its information available in a range of accessible formats and languages.
FECCA recommended the expansion of culturally and linguistically appropriate information provision regarding worker rights within CALD communities in Australia, with a particular focus on new arrivals and temporary visa holders.
The WEstjustice Community Legal Centre (WEstjustice) put forward similar evidence to FECCA, emphasising that without targeted legal assistance for newly arrived migrant or refugee workers, the workplace relations systems remained largely inaccessible:
Education not only informs people about their rights at work and where they can find help, but also empowers communities to enforce their rights by building relationships and trust between vulnerable workers and services that can assist.
The WEstjustice submission outlined a number of the key facets that characterise 'best practice' education approaches to assist migrant or CALD individuals, including:
verbal, 'face-to-face' information sessions;
use of client's language and client's own community workers;
use of visual and multimedia materials;
utilising English classes and pre-arranged community meetings to disseminate information;
use of clear and simple language;
emphasis on key information and messages;
convenient locations to facilitate attendance at information sessions;
practical and timely advice; and
approaches developed in consultation with communities.
Ms Catherine Hemingway, Policy Director for CALD and Employment at WEstjustice informed the committee of the success it had achieved with its programs aimed at CALD workers, such as the 'Train the Trainer' program:
ACTING CHAIR [Senator Brockman]: Has that [Train the Trainer program] improved awareness in communities as to their rights and their ability to access processes?
Ms Hemingway:Yes. We've done a lot of evaluation of all of our programs but especially the Train the Trainer, and, from that, I can tell you the answer to that question is yes. For the Train the Trainer program, we collected a lot of feedback from the individual trainers—the community leaders—themselves. They gave a lot of feedback about their increased knowledge. But we also evaluated the forms we got back from all of the community members who attended the sessions that our trainers ran. Just by way of background, it's a 10-day training program. The community leaders come along and learn about their rights and responsibilities at work, but we also visit key agencies. We go to the Fair Work Ombudsman and the Fair Work Commission, and those leaders have a chance to see face to face how these services work. The aim is to then have those leaders out in the communities, referring their members into relevant services that can assist. And those trainers then go out and deliver face-to-face information sessions for their communities. I might not have the statistic exactly right, but I think around 80 per cent of participants who went to those information sessions then said at the end that they would know where to go for help if they had a problem and that their knowledge had increased dramatically.
WEstjustice recommended that the Government fund targeted education programs for vulnerable workers:
WEstjustice proposes that mainstream agencies develop their own targeted resources and programs, but also provide funding for community organisations to distribute those resources and design and deliver essential face-to-face information sessions that align with local community needs.
Based on the evidence received during the inquiry, the committee sees an urgent need to support outreach measures designed to assist CALD individuals and migrant workers across Australian workplaces, not just in the cleaning sector. The committee considers that such outreach and awareness measures are one part of a solution to minimise the harm to vulnerable workers by helping workers to better navigate the workplace relations system and seek assistance should they fall victim to non-compliant behaviour.
The committee commends the FWO on its efforts in engaging with CALD communities, particularly in regard to the provision of information in accessible formats for these groups. It encourages the FWO to continue these efforts to ensure that vulnerable workers are able to access the tailored assistance they require. Additionally, the committee urges the Government to continue to support the FWO in this mission through adequate funding and resources.
The committee also commends not-for-profit, non-government organisations on the programs they run to assist vulnerable workers from CALD backgrounds. The committee considers the success of programs (such as 'Train the Trainer' developed by WEstjustice) sufficient to warrant government support.
The committee also acknowledges the work done by community legal centres, such as inquiry submitters WEstjustice, JobWatch and the Employment Law Centre of Western Australia. The committee recognises the value in the work done by these organisations in engaging in community legal education and providing one-on-one assistance and advice to vulnerable workers.
To that end, the committee urges the Government to utilise the knowledge gleaned from the valuable work of such organisations and fund targeted education programs and community legal programs that have a proven success in assisting migrant and CALD workers to navigate the Australian workplace relations system.
The committee recommends that the Government adequately fund the Fair Work Ombudsman in its efforts to provide tailored assistance to vulnerable workers, particularly those from culturally and linguistically diverse backgrounds.
The committee recommends that the Government work with industry stakeholders and unions to develop and fund targeted education programs aimed at assisting vulnerable workers from migrant and culturally and linguistically diverse backgrounds to navigate the Australian workplace relations system.
The committee recommends that the Government fund not-for-profit community legal centres to enable such organisations to expand their work in community legal education and provide tailored assistance to vulnerable workers experiencing exploitation.
Protections for visa holders
Another issue raised with the committee was the concerns of temporary workers about the immigration consequences they may face should they report the exploitative behaviour of their employer.
Ms Bassina Farbenblum, Senior Lecturer at the University of New South Wales, and Dr Laurie Berg, Senior Lecturer at the University of Technology Sydney, provided the committee with an overview of data collected as part of the National Temporary Migrant Work Survey. Published in November 2017, it was the most comprehensive study to date into wage theft and working conditions among international students, backpackers and other temporary migrant to Australia. The survey, conducted online between September and December 2016, amassed 4322 responses from temporary migrant workers representing 107 nationalities and working in jobs across all states and territories.
Based on the findings from this data, Ms Farbenblum and Dr Berg advised the committee that although some migrant workers (for example, international students) are aware of their underpayment, they may choose to accept it due to concerns about their visa status, particularly if they are paid cash in hand.
Following on from their submission, in an October 2018 report entitled 'Wage Theft in Silence: Why Migrant Workers Do Not Recover Their Unpaid Wages in Australia' (Wage Theft in Silence report), Ms Farbenblum and Dr Berg confirmed that while the majority of migrant workers are paid well below the minimum wage, only a few choose to take action to recoup the wages they are owed.
In order to overcome the barrier to wage recovery posed by fears of immigration consequences, the Wage Theft in Silence report recommended the establishment of a 'firewall' between the FWO and the Department of Home Affairs (DHA) that prevented the FWO sharing information about visa breaches by migrant workers who seek assistance:
A quarter of participants [in the study] indicated they had not or would not try to recover unpaid wages due to fear of possible immigration consequences (25%). A further 7% of participants identified a general concern about engaging with the government. To reduce this barrier a legislated firewall should be established between the FWO and the Department of Home Affairs. This must prevent the FWO from sharing with the Department of Home Affairs any information relating to contravention of a migrant worker’s visa when the individual reports or seeks assistance in relation to a breach of his or her labour rights. This should replace the current protocol between the two agencies which still allows sharing of this information.
WEstjustice highlighted that the current protocol between the FWO and the DHA was not sufficient to allay the fear of immigration consequences that stopped temporary workers from reporting their exploitation:
The Australian Government’s Migrant Worker Taskforce announced in February 2017 that where temporary visa holders with a work entitlement attached to their visa may have been exploited and they have reported their circumstances to the FWO, the Department of Home Affairs (DHA) will generally not cancel a visa, detain or remove those individuals from Australia, providing: the visa holder commits to abiding by visa conditions in the future; and there is no other basis for visa cancellation (such as on national security, character, health or fraud grounds). This agreement between DHA and FWO has now been published on FWO’s website, and will hopefully be widely communicated by the government.
While this is a positive development, alone it will not be sufficient to reassure vulnerable migrant workers on temporary visas that it is safe to come forward and report exploitation to the FWO without further legislative and other reform.
WEstjustice confirmed that such fears were genuinely held by temporary workers in the cleaning industry:
We have had numerous clients in the cleaning industry visit our service to request help for significant underpayment issues and other unlawful treatment. However, some clients may have breached a term of their visa, inadvertently or accidentally. This breach gives rise to the risk of being removed, that is forced to depart Australia.
As a result, clients do not pursue their claims and employers take advantage. For example, international students are generally only permitted to work a maximum of 40 hours per fortnight during semester. If they are found to breach a term of their visa (for example, by working for one extra hour), their visa may be cancelled and the worker commits a strict liability offence. We saw a client who worked for one extra hour in breach of his 40 hour limit, on one occasion. However, the risk of visa cancellation was still real—and he did not pursue his employer, who owed him thousands of dollars.
The committee received information on the operation of the 'assurance protocol' between the FWO and DHA. Mr Tom O'Shea, Executive Director of Strategic Engagement and Stakeholder Relations for the FWO outlined:
Essentially, it provides a degree of comfort to a vulnerable visa holder who wants to approach the Fair Work Ombudsman to make allegations of exploitation. In the instances where they have also breached their visa requirements, we undertake, on their behalf, to speak to the Department of Home Affairs. The arrangements of the protocol are that Home Affairs, in certain instances, will give an undertaking not to cancel their visa provided that that worker is assisting us with the progress of an investigation or an assessment of their complaint. That's been very successful.
The FWO further advised that as at 30 June 2018 it had referred 35 matters to DHA pursuant to the agencies' joint assurance protocol. DHA confirmed that of those 35 matters, no migrant worker referred to it had been removed from the country.
The committee notes the evidence indicating that fear of immigration consequences, for even minor visa breaches, is a factor stopping vulnerable, temporary workers from seeking help from the FWO when they are mistreated by their employer.
Although the current protocol between the FWO and the DHA is a positive first step, the committee sees the need for a firmer guarantee between the two agencies to provide a greater degree of certainty to temporary workers who are too frightened to come forward about their exploitation, particularly if they have only committed a minor infringement to their visa conditions.
On this matter, the committee is aware of a March 2018 public statement from Professor Allan Fels, Chair of the Government's Migrant Workers' Taskforce, that indicated that the FWO and the DHA had agreed to review the protocol given it had been in operation for 12 months.
The committee recommends that the Fair Work Ombudsman and the Department of Home Affairs consider revising their current protocol regarding the cancellation of temporary visas for individuals who come forward to report exploitation in order to provide greater certainty to migrant workers that they will not be punished for reporting the non‑compliant behaviour of their employer.
Findings from the Wage Theft in Silence report
As noted above, the Wage Theft in Silence report, authored by Ms Farbenblum and Dr Berg, was released in October 2018. The report is based on data collected from the National Temporary Migrant Work Survey. Other research conducted for the report included 6 focus groups with 26 temporary migrant workers in Sydney, Melbourne and Brisbane, and 39 semi-structured long form interviews with government agency officials, legal service providers, advocates, trade unions, researchers and individual temporary migrant workers, conducted between November 2015 and February 2017.
Key findings from the Wage Theft In Silence report included:
Among international students and backpackers who acknowledged they had been underpaid in Australia, the overwhelming majority suffered wage theft in silence. Fewer than one in ten took action to recover wages they were owed.
Of the small number who tried to recover wages, two in three recovered nothing. Fewer than one in six received the full amount they were owed.
Only 3 per cent of underpaid participants contacted the Fair Work Ombudsman and well over half of them recovered none of their unpaid wages.
Though it is often assumed that most underpaid migrant workers are not interested or willing to take action to get the wages they are owed, in fact well over half of survey participants indicated that they were open to trying to recover their wages. This suggests that if resources are devoted to interventions that better enable migrant workers to report and address underpayment, many more would do so.
It is commonly assumed that migrant workers won’t report underpayment because they are unfamiliar with the different legal culture in Australia. In fact, Asian participants were the most open to trying to recover their wages.
Participants selected a range of rational reasons why they had not sought to address their underpayment: a quarter indicated fear of possible immigration consequences, close to a half reported that they did not know what to do, and many believed they would not be successful.
In regard to these last two points, the report elucidated that a 'straightforward cost-benefit theory' explained why so few temporary migrant workers attempted to recover unpaid wages:
It is often assumed that migrant workers are reluctant to complain to authorities or attempt to recover unpaid wages due to their personal limitations: poor English language ability, lack of knowledge of rights and/or lack of familiarity with Western legal culture. The survey data paints a different picture. It indicates that a straightforward cost-benefit theory better explains why so few temporary migrant workers try to recover unpaid wages. That is, when the low likelihood and quantum of a successful outcome are weighed against the time, effort, costs and risks to immigration and/or employment status, it is rational that individual temporary migrant workers are not seeking remedies even if they are being significantly underpaid. It also identifies barriers created by a lack of knowledge and capacity that are more connected with the institutions themselves than personal limitations of migrant workers.
The report detailed that of the 2258 study participants who acknowledged they had been underpaid, 91 per cent had not tried to recover their unpaid wages (see Figure 7.1).
Figure 7.1: —Underpaid participants who had tried to recover wages, planned to recover, might try in the future or would not try
Wage Theft in Silence: Why Migrant Workers Do Not Recover Their Unpaid Wages in Australia, p. 20.
The report also contained findings on the outcomes for migrant workers who did try to recover their unpaid wages. For example, of the 194 participants in the study who had tried to recover wages, 67 per cent recovered nothing.
The report also found that the FWO is not well placed to undertake 'the large‑scale provision of individual remedies' that would assist migrant workers in recouping their unpaid wages:
…the agency [the FWO] has made significant efforts to address exploitative practices at a systemic level, including numerous high profile campaigns and inquiries. However, the FWO’s core functions are not directed to the large-scale provision of individual remedies. Rather, they are oriented to strategic enforcement, systemic deterrence of noncompliance, and the promotion of harmonious workplaces.
The report noted that the FWO places a strong emphasis on enabling 'self‑help', but that 'for most migrant workers, preserving employment relationships and self-help are ill-suited to the context of their low wage employment.'
As a consequence the Wage Theft In Silence report results show that only 42 per cent of the individuals that sought the FWO's assistance recovered some or all their unpaid wages.
Figure 7.2 demonstrates that of the 194 individuals that attempted to recover wages, those that contacted trade unions and community organisations were much more successful in recovering unpaid wages compared to the FWO figures. The comparative figure for those that contacted trade unions was 70 per cent, whereas the community groups were slightly lower at 67 per cent.
Figure 7.2: —Proportion of wages recovered by participants who sought assistance to recover wages, by organisation contacted
Wage Theft in Silence: Why Migrant Workers Do Not Recover Their Unpaid Wages in Australia p. 30.
Notably, not only were those that contacted trade unions more successful overall, they were also more likely to recover all their unpaid wages compared to any other organisation type. This matter is discussed further in the following section of this chapter.
The committee commends Ms Farbenblum and Dr Berg on the 'Wage Theft in Silence: Why Migrant Workers Do Not Recover Their Unpaid Wages in Australia' report. The committee considers it to be a comprehensive piece of research that would be of use in formulating effective policy responses to the problems faced by vulnerable workers, such as those in the cleaning industry.
The committee encourages the Government, in particular agencies such as the FWO and the Australian Taxation Office, to evaluate the findings and recommendations the report contains.
The committee recommends the Government consider the findings and recommendations made in the 'Wage Theft in Silence: Why Migrant Workers Do Not Recover Their Unpaid Wages in Australia' report in conjunction with its consideration of the forthcoming report of the Migrant Workers' Taskforce.
Additionally, the committee believes that provided adequate resources were available, the FWO could play a more active and expansive role in recovery of unpaid wages. Clearly individual vulnerable workers are currently making a rational assessment that the existing avenues for recourse through the FWO are limited. Therefore the committee believes that additional funding should be provided to the FWO to play a greater role in this area. Given the strong recovery results achieved by both trade unions and community groups, the FWO should seek opportunities to collaborate with these other organisations in order to maximise the recovery of unpaid wages.
The committee recommends that the Government provide additional funding to the Fair Work Ombudsman in order to provide more direct assistance to individual vulnerable workers to recover unpaid wages.
Role of unions in protecting vulnerable workers
The committee received evidence illustrating the vital role of trade unions in protecting and assisting vulnerable worked.
Some submitters argued that the exploitation of workers in the cleaning industry, as well as across Australian workplaces more generally, has been facilitated due to the gradual erosion of union rights.
For example, the Australian Council of Trade Unions (ACTU) listed the following as union rights that needed to be restored in order to effectively represent vulnerable workers:
positive organising rights;
prohibitions on the intimidation and harassment of union members;
provision of union information to new workers;
recognition and protection of union delegate training;
bargaining in good faith requirements; and
extending freedom of association rights to contractors.
United Voice, the union which represents workers in the cleaning industry, claimed that it had faced restrictions on the right of entry to workplaces since 2004. It argued for the restoration of union rights in order to assist in stamping out worker exploitation:
Restoring freedom of association for all workers in Australia is integral to eliminating worker exploitation. To be clear, exploitation occurs because of workers’ voice has been diminished and their rights to organise and advocate through their union for improvements to living standards and workplace rights have been under persistent attack.
Maurice Blackburn Lawyers (Maurice Blackburn) submitted that wage theft and worker exploitation is 'always lowest' in workplaces with the highest union membership. It did note, however, that there were characteristics of the cleaning industry (e.g. highly casualised workforce, off-site and single-worker nature of the work) that made connections with unions difficult.
United Voice reiterated these points, noting that the causes of low union density in retail cleaning were 'multiple and mutually reinforcing':
There are factors associated with the industry (the fact that many employers are small in size, that workplaces are isolated and that there are high levels of worker turnover and casual employment), the attitudes of particular employers (some of whom intimidate workers into not joining a union), additional worker vulnerabilities that exist because of the high proportion of temporary migrant workers in the industry, and disincentives to unionism created by the IR framework itself, which restricts union access and enables non-union members to ‘free ride’ the benefits of union services without joining.
Ms Lyndal Ryan, Secretary of the Australian Capital Territory branch of United Voice, provided an example of the difficulties inherent in unions utilising the right of entry provisions in the Fair Work Act to meet with cleaners, due to the nature of the industry:
There are a few things in terms of right of entry, and we've had some thoughts about this. If you take any Commonwealth building in Canberra where this [cleaning] work is done, you'll find it's secured in the evening and in the early hours of the morning, which is the other time the work could be done. You have to find out when the work is being done, determine who the employer might be, give that notice—if you can find the employer—and then work out arrangements for accessing that building.
The other difficulty under the Fair Work Act as it's currently drafted is that we can talk to people in their meal breaks, but cleaners working at night of course have no staff room of their own and their shift length is generally such that they don't actually have a meal break. There's no end of problems with the access requirement in the Fair Work Act, and 24 hours' notice is just one; finding the employer to give the notice to will be your first challenge.
United Voice further argued that unions were crucial to augmenting the work of the FWO:
Unions create a culture of compliance, where workers themselves are responsible for ensuring their workplace complies with the law, rather than relying on the surveillance of FWO, which can never reach the majority of workplaces.
As outlined in the previous section, the committee received evidence demonstrating that trade unions were beneficial in assisting migrant workers in recovering unpaid wages. The Wage Theft in Silence report found that workers that contacted a trade union for assistance to recover unpaid wages had the best outcomes. For example, of the participants in the study that attempted to recover wages, of those who went to a trade union, 30 per cent recovered all of their wages, and 40 per cent recovered some of their wages.
The report also found that trade union membership was a distinguishing factor of those underpaid participants that had attempted to recover their wages:
Among those who had been a member of a trade union in Australia at some point, 28% of underpaid participants had tried or were planning to recover their wages, compared with 10% of underpaid participants who had never been a member of a trade union.
However, the report noted that migrant workers are 'generally unlikely' to proactively seek trade union assistance.
The committee is of the strong opinion that unions have a crucial role to play not only in assisting vulnerable workers who have been the victim of non-compliant behaviour by employers, but also in protecting workers from being exploited in the first place.
As a result, the committee sees the need for the Fair Work Act to ensure that workers in the cleaning industry are able to access their union with the same ease as workers in other sector.
The committee notes that workers who access union support have greater success in ensuring their wages and entitlements are compliant with the law. The committee recommends that the Government ensure that workers have appropriate access to union advice and support.
Senator Gavin Marshall Senator Catryna Bilyk
Senator Deborah O'Neill Senator Mehreen Faruqi
Senator the Hon Doug Cameron