The Senate Select Committee on Job Security (committee) was appointed by resolution of the Senate on 10 December 2020. The committee tabled its fourth interim report on the inquiry's substantive terms of reference on 11 February 2022.
In the week leading up to the tabling of that report, it was alleged that two seasonal worker witnesses may have been disadvantaged by their employer on account of giving evidence at a public hearing in Canberra on 2 February 2022.
The committee notes that under Senate Privilege Resolution 1(18), it has a responsibility to examine the matters raised in relation to these witnesses and report its findings to the Senate:
Where a committee has any reason to believe that any person has been improperly influenced in respect of evidence which may be given before the committee, or has been subjected to or threatened with any penalty or injury in respect of any evidence given, the committee shall take all reasonable steps to ascertain the facts of the matter. Where the committee considers that the facts disclose that a person may have been improperly influenced or subjected to or threatened with penalty or injury in respect of evidence which may be or has been given before the committee, the committee shall report the facts and its conclusions to the Senate.
As these matters were brought to the committee's attention so close to the reporting date and the dissolution of the committee, the committee formed the view that an extension of time was necessary to conduct a short and limited inquiry into these possible privilege matters. On 10 February 2022, the Senate agreed:
That the time for the presentation of the final report of the Select Committee on Job Security be extended to 30 March 2022, so that the committee may inquire into possible privilege matters, including to:
investigate allegations raised in relation to the treatment of seasonal workers who gave evidence at the committee's public hearing on 2 February 2022;
ascertain the facts in the matter; and
report any findings to the Senate.
This chapter reports on the potential privilege matters and then makes some associated general commentary on employer-sponsored visa schemes.
Summary of evidence received on potential privilege matters
The committee received correspondence on behalf of two seasonal workers who appeared as witnesses at a public hearing on 2 February 2022, and three other workers who accompanied them, alleging that they had been disadvantaged by their employer on their return from the public hearing.
There were two main allegations made to the committee. The first allegation, shared with the committee on 6 February 2022, was that upon their return from the public hearing to their employer-provided accommodation, the seasonal worker witnesses had two days of shifts taken away by their employer, putting them at a financial disadvantage as a result of providing evidence to the committee. Those two days were Friday 4 February and Saturday 5 February.
After receiving the first allegation, the committee wrote to the employer (MADEC) on 9 February 2022 informing the company of the protections afforded to witnesses who appear before committees and seeking an explanation in relation to the alleged conduct. The committee also sought assurances that MADEC had not and would not disadvantage the workers due to the evidence they had provided.
The committee received written representations from MADEC and from a related farm business (Sunny Ridge Farms, where the witnesses had undertaken a work placement), in which the allegations were addressed and refuted. This correspondence is published on the committee website.
In responding to the committee's letter, Mr Laurence Burt, Chief Executive Officer of MADEC, stated:
I assure committee members that MADEC has not directed or orchestrated any action to penalise any of the workers that provided evidence to the committee. Any staff member behaving in such a matter would be acting without the authority of the organisation and contrary to management direction.
MADEC also noted in this correspondence that prior and separate to the hearing on 2 February 2022, Sunny Ridge Farms had requested its assistance in finding the workers an alternative work placement, as the workers had been 'disengaging' with the work at Sunny Ridge Farms. MADEC agreed to this request and commenced finding a suitable workplace to which the workers could relocate. MADEC also requested the intervention of the Department of Foreign Affairs and Trade (DFAT) to assist in resolving the situation, and provided further assurances to the committee:
Pending resolution, MADEC will pay the 6 workers in question, including the two who provided evidence at the hearings, at casual hourly rates for 30 hrs per week (commencing 11/2/2022) while they are in between work assignments to ensure they are not disadvantaged.
The second allegation concerns a statement allegedly made by the High Commissioner for Samoa, Her Excellency Ms Hinauri Petana, on Canberra radio station FM 91.1 Canberra Multicultural Service (CMS) during a Samoan language program broadcast on Wednesday 16 February 2022. A written translation of the statement was provided that same day by the seasonal workers' translator and advocate, Mrs Lieta Sauiluma-Duggan, to MADEC who in turn shared it with the committee. It read:
The employer (Madec) of the 6 workers who came to Canberra made a decision to terminate these workers, especially the two who appeared as witnesses at the Senate Inquiry. If it wasn't for the Liaison Officer who contacted the employer, and pleaded with him, these workers would have been terminated and returned to Samoa.
In correspondence to the committee dated 17 February 2022, MADEC denied the claims allegedly made by the Samoan High Commissioner. Mr Burt also said that he believes the Liaison Officer, Mr Aufa'i Fulisiailagitele Saleuesile, 'had no such conversation with the Samoan High Commissioner'.
The committee held a public hearing on 10 March 2022 to receive further evidence from the workers; their advocates and legal counsel; MADEC and Sunny Ridge Farms; DFAT; and Palladium, a company contracted to provide support services to Seasonal Worker Program and Pacific Labour Scheme workers.
At the public hearing, Mr Matthew Collard, appearing on behalf of Sunny Ridge Farms, claimed the organisation has a commitment to 'provid[ing] a safe environment for workers' and claimed that Sunny Ridge Farms 'respect[ed] the rights of witnesses to provide evidence under parliamentary privilege'. Mr Burt, likewise claimed that his organisation 'always strive[s] to achieve the Seasonal Worker Program objectives while meeting compliance and statutory requirements'.
There was unanimous agreement at the hearing that the workers left their accommodation on 31 January 2022, attended the hearing on 2 February 2022 and returned to their accommodation on 3 February 2022. There was also agreement that the workers were not provided with shifts on Friday 4 February or Saturday 5 February, despite those being usual days of work for them, and that they were rostered on again from Sunday 6 February until Friday 11 February.
However, other facts key to the privilege matter were disputed between the seasonal workers and their representatives, and MADEC and Sunny Ridge. The workers and their representatives claimed that they had provided MADEC with notice on numerous occasions that they would be leaving for a few days to participate in a Senate public hearing. One of the workers, Talipope said they told their team leader on 27, 28 and 29 January that they were coming to Canberra. Mrs Sauiluma-Duggan added that she had confirmed with the team leader on 3 February that he had passed this information on to Madec:
As we were talking, Pasefika [the team leader] came home from work. I walked up to Pasefika and asked him if he had informed Madec before Monday 31/01/2022, that Talipope, Aleki and the others were going to Canberra before that Monday. Pasefika quickly responded YES he had done so before the workers left for Canberra.
In addition to the notice provided to the team leader, Mrs Sauiluma-Duggan said MADEC's seasonal worker liaison officer, Mr Rob Hay, had asked the workers on 31 January 2022 why they were intending to travel to Canberra.
… Aleki and Tali rang me and said that Rob, one of the employees of MADEC, was there, questioning them about why they were going to Canberra. So I said to them: 'Can you please talk to him and ask him to leave you there? I'll be there in about 20 minutes.' I then spoke to Rob and told him that we were 20 minutes away, and he agreed to wait around for us. That was the time that I spoke to Rob. When we got there, he wasn't there. So they were fully aware that the boys were leaving.
In contrast, both MADEC and Sunny Ridge claimed that they were unaware of where the workers had gone until media coverage of the public hearing was published on 3 February 2022. MADEC said that until then, they had formed the view that the workers had absconded, while Mr Hay denied having ever been told that the workers were going to Canberra.
Further, MADEC claimed in written correspondence, and then at the public hearing that Sunny Ridge Farm had requested in writing on 31 January 2022, prior to the hearing, that the witnesses be relocated due to 'disengaging from work and not attending on scheduled days of picking'. MADEC claimed that this was the reason the workers were not rostered for work on Friday 4 February or Saturday 5 February.
The committee has received a copy of the text message sent by Sunny Ridge to MADEC on 31 January 2022 asking that the workers be relocated. However, the committee has not received evidence that would enable it to conclusively determine whether or not Sunny Ridge or MADEC at this point knew the workers were attending the committee's public hearing on 2 February 2022. The committee does note that the workers allege that both their team leader, and Mr Hay, were aware of the trip by at least 31 January 2022.
Central to the privilege matter is this unresolved question of whether the text message on 31 January 2022 was a legitimate reason for the loss of shifts on 4 and 5 February, or a pretence to disadvantage the workers for providing evidence to the Senate.
The workers finished their placement at Sunny Ridge Farm on Friday 11 February. Since then, MADEC has paid the workers a casual hourly rate for 30 hours per week while they await relocation to a new host, which for some of the workers has now been completed.
After the public hearing, the committee also received answers to questions on notice, which have been published on the committee's website.
The committee takes these allegations very seriously. In conducting this inquiry, it has sought to establish and test the facts presented. In offering all parties an opportunity to state their case in writing and at the public hearing of 10 March 2022, the committee provided the workers, MADEC and Sunny Ridge Farms with an opportunity to air their respective views publicly.
As a result of key facts being disputed between the workers and their representatives, and MADEC and Sunny Ridge, and without conclusive evidence in either direction, the committee cannot reach a firm conclusion as to why the workers' shifts were taken away on 4 February and 5 February.
On the one hand, MADEC and Sunny Ridge claim that there was a decision made that the workers would be relocated and their shifts be ceased before they had any knowledge the workers would be appearing at the public hearing. Sunny Ridge has provided a text message sent on 31 January 2022 to support this claim.
On the other hand, the workers and their representatives insist that they told two separate MADEC employees—Mr Hay and their team leader—that they were appearing at the public hearing before that text message was sent. The committee also notes that one of the workers, Aleki, missed only two shifts in the four weeks leading up to 31 January, which raises questions about whether Sunny Ridge would truly have deemed it necessary to urgently relocate him.
There is also the matter of the statement allegedly made by the Samoan High Commissioner on Samoan language radio on 16 February 2022, that the workers would have been dismissed and repatriated by MADEC if not for the intervention of a Samoan Government liaison officer. The committee can only rely on the translation provided by Mrs Sauiluma-Duggan as the raw audio has not been provided.
While the specifics of the events that followed the initial public hearing on 2 February remain unclear, the committee has been informed that the situation has now been remedied in what appears to be an apparently satisfactory manner.
The committee has also been reassured that MADEC will continue to pay the witnesses whilst they are between placements and is working closely with DFAT to place the workers at new farms.
When the workers first appeared before the committee on 2 February 2022, they emphasised they had come forward and spoken out about their conditions because they wanted to be relocated to a different farm. It appears the workers have now obtained that relocation, and that their pay and conditions at their new hosts will be closely monitored by DFAT. They can now focus on the reason they chose to come to Australia to begin with—to earn money to support their families in Samoa.
This case does—as is discussed below—highlight the vulnerabilities that participants in seasonal worker programs face. The committee was primarily concerned by the workers' claims of alleged poor living conditions and underpayment. The committee appreciated reassurances from DFAT that they had conducted an unannounced visit to the workplace in question to assess the suitability of accommodations provided, and that they continue to request information from MADEC and Sunny Ridge Farms to determine whether the seasonal workers were appropriately paid.
The committee takes this opportunity to remind all parties that witnesses are protected by parliamentary privilege with respect to the evidence given and that witnesses should not be interfered with or otherwise mistreated following participation in a Senate inquiry. The committee also reminds all parties that there remains scope for these matters to be re-enlivened in the future for any witness, should further allegations be brought to the attention of individual senators.
Finally, the committee notes commentary from the Minister for Agriculture, the Hon. David Littleproud MP, about evidence provided at the public hearing that the workers were taking home as little as $100 in weekly wages after deductions. Minister Littleproud told the ABC on 20 March that it is 'not appropriate'. The committee welcomes the Minister's comments and awaits confirmation of what steps the Australian Government (government) will be taking to stamp out this sort of behaviour.
General commentary on employer-sponsored visa schemes
In the context of this matter, the committee takes the opportunity to provide some general commentary on employer-sponsored visa schemes and the conditions under which seasonal workers are permitted to live and work in Australia. This commentary does not specifically relate to, or reflect on, either MADEC or Sunny Ridge Farms.
While temporary visa holders make a significant contribution to regional and rural Australian communities, seasonal workers who come to Australia for the opportunity to work still face mistreatment during their work placement. The case of the witnesses above highlights the particular vulnerabilities and exploitation that seasonal workers face.
The poor living conditions, underpayment and inflated deductions in the seasonal worker industry has been well-documented. Workers who come from non-English speaking backgrounds are particularly prone to exploitation and ill-treatment. As these workers hold employer-sponsored temporary visas, they are especially vulnerable to poor treatment and exploitation. This is due in large part to the perception that raising concerns will lead to the termination of their visa and repatriation to their home country.
Australia's agricultural sector is dependent on seasonal workers. It is therefore necessary for both the sake of the agricultural sector and the seasonal workers themselves that the government ensures that the employment and visa conditions that these workers are employed under provide appropriate protections against mistreatment.
It is particularly important that the government consider whether workers in Australia under the Seasonal Worker Program (SWP), the Pacific Labour Scheme (PLS) and the Pacific Australia Labour Mobility (PALM) scheme are being sufficiently protected. Plainly, there is room for improvement, including on the specific issue raised in the public hearing about arrival briefings not being conducted, deductions not achieving fair value for money, and contracts and other documents not being provided in native languages.
In light of the clear issues in the SWP and PLS, it is concerning that the Minister for Agriculture has said the new Australian Agricultural Visa (Ag Visa) will be even less regulated, and will more closely resemble the Working Holiday Maker scheme. The committee urges the Minister to consider how temporary migrant workers in Australia can receive greater protection, not less.
At present, it is difficult to transfer between employment placements under these schemes, even if a participant is seeking to work in the same industry in which they were placed. This inability to move between employers may result in workers being unable to leave an inadequate work environment, even when they have an employment opportunity with a more suitable employer.
The committee is of the view that the government should consider the merits of adopting more 'portability' options under the Seasonal Worker Program, PLS, and PALM schemes, to allow these workers to change employers. This may have the effect of not only benefitting workers who have sourced preferrable work arrangements but may also create much-needed flexibility in the industry, benefitting employers who provide superior conditions and pay for seasonal workers.
The committee further notes the necessity of ensuring that seasonal workers receive appropriate wages and conditions, as was recommended in the committee's third interim report. Minimum standards for safety, pay and conditions must not only be set but adhered to, with all workers in Australia being able to be fairly remunerated regardless of the scheme under which they are working. As these temporary, non-citizen workers potentially face substantial consequences for reporting an employer's misconduct—such as being removed from their position, which could lead to repatriation back to their home country—they must be provided with superior protections that safeguard against this form of retribution.
The committee has previously recommended that the Fair Work Ombudsman be provided with additional funding in order to improve the complaints process, including expediting the investigation of complaints and enforcement of industry awards in the horticultural and meat processing industries, ensuring that migrant workers are made aware of their legal entitlements and have access to a union, and have access to appropriately translated materials and an interpreter. The committee reiterates the importance of seasonal workers having access to an appropriate and timely reporting mechanism, particularly given the limitations of their temporary visa requirements.
Senator Tony Sheldon