UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan
THEY CALLED FOR LABOUR BUT PEOPLE CAME: ARE AUSTRALIA’S INTERNATIONAL HUMAN RIGHTS COMMITMENTS SUFFICIENT TO PROTECT TEMPORARY MIGRANT WORKERS? PART I INTRODUCTION Australia has long relied on labour migration programs to address acute labour shortages. Arguments supporting temporary labour schemes claim they provide economic gains to receiving countries from the increased supply of labour, higher wages for the migrant worker, and increased remittances to their home countries.1 Arguments against temporary labour schemes concern themselves with a lack of opportunity to obtain permanent residency status, physical harm to workers, psychological harm to children left behind and the inherent exploitative nature of the programs. While there is no doubt that Australia’s domestic laws protect the rights of workers as stipulated in international human rights and labour rights conventions, this essay argues that Australia’s legal framework does not effectively consider the inherent vulnerabilities of temporary migrant workers. Simply granting temporary migrant workers the same rights as local workers does not protect them from discrimination and exploitation. This essay analyses two of Australia’s migrant labour schemes through the lens of worker exploitation. It argues that these schemes do not adequately address the requirements of international labour laws and human rights conventions. Rather, they provide low cost labour to Australian employers unable to recruit locals to jobs filled by temporary migrant workers. While Australia is a member of the International Labour Organisation (“ILO”) and party to several international human rights conventions, it has failed to ratify three universal instruments that protect the human rights and labour rights of migrant workers: the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (“ICRMW”); the ILO Migrant Workers (Supplementary Provisions) Convention (“ILO C-143”); and the ILO Migration for Employment Convention (Revised) 1949 (“ILO C-97”).
Martin Ruhs, ‘Temporary foreign worker programmes: Policies, adverse consequences, and the need to make them work’ (2003) Perspectives on Labour Migration, Social Protection Sector (ILO, Geneva). 1
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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan
Given that the ICRMW was created because the rights of this vulnerable group were not adequately protected by States as part of their existing human rights obligations, this essay argues that Australia’s reluctance to ratify this treaty indicates a lack of commitment to maintain the integrity of Australian labour standards and prevent employers from viewing temporary migrant workers as a cheap and exploitable alternative to local workers.2 Part II provides an overview of two migrant labour schemes and argues that these schemes facilitate the use of cheap migrant labour and potentially move Australia towards a ‘guestworker’ society in which temporary migrant workers remain vulnerable to exploitation. Part III explores the potential human rights impacts of these temporary labour schemes in the context of international human rights and labour rights conventions. These include ILO conventions, the Universal Declaration of Human Rights (“UDHR”), the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) and the International Convention on the Elimination of All Forms of Discrimination (“ICERD”). Despite Australia’s ratification of these treaties, the exploitation of migrant workers has continued. This essay argues that without the ratification of the ICRMW, ILO C-143 and ILO C-97 and the development and enforcement of local laws, the human rights and labour rights of migrant workers cannot be effectively protected. Part IV discusses migrant worker exploitation in Australia and argues that, while temporary migrant workers are not excluded from State-based workplace laws, their particular vulnerability is not always taken into account. Part V outlines different mechanisms proposed for ensuring that temporary labour schemes do not lead to exploitation of migrant workers. It questions and analyses whether the approaches undertaken and proposed by the Australian government can effectively protect the inherent rights of migrant workers. Part VI concludes that Australia’s response to international human rights and labour rights conventions does little to protect temporary migrant workers. Reliance on existing domestic legislation to protect migrant workers neglects the special vulnerabilities of these low-skilled
2
Sanushka Mudaliar, Laurie Berg, Michael Curtotti, Patrick Earle, Sohoon Lee, Andrew Naylor, and Chris Sidoti, ‘Australian Ratification of Migrant Worker Conventions – Responses to the Concerns Raised by the Australian Government’ (undated) Human Rights Council of Australia. <http://www.aph.gov.au/DocumentStore.ashx?id=59679a7c-2d38-4cb2b175-4a9939599c7b>
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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan
workers whose uncertain visa status combined with language and cultural barriers escalate their exposure to exploitation and abuse. PART II AUSTRALIA’S TEMPORARY MIGRANT LABOUR PROGRAMS Temporary migrant labour programs provide a source of low-skilled labour to employers, often in ‘dirty, dangerous and demanding’ jobs that local workers are unwilling to do.3 In addressing the question of whether Australia’s international human rights commitments sufficiently protect migrant workers in temporary labour programs, it is important to firstly understand these programs in the context of worker exploitation. An overview of the Seasonal Worker Program (“SWP”) and the Pacific Labour Scheme (“PLS”) is provided below. Seasonal Worker Program The goals of the SWP focus on domestic and international objectives: the domestic objective being to provide additional labour for employers across relevant sectors; the international objective being to promote development in the Pacific through remittances and other benefits to workers’ families, communities and their country.4 There is no doubt that international labour migration present significant opportunities for Pacific island nations. Temporary labour programs contribute 83% of Pacific GDP and are highly attractive to Pacific nations where a one percent increase in the stock of migrants generates an additional 20 percentage points of GDP.5 However, temporary labour programs must also protect migrant workers by ensuring Australian employers and recruiters acting on their behalf comply with local workplace and anti-discrimination laws and meet international labour rights and human rights objectives. Unfortunately, this has not always been the case in Australia. Responding to employee and community concerns about exploitation of migrant workers, the Fair Work Ombudsman
3
Patti Tamara Lenard & Christine Straehle, ‘Temporary labour migration: Exploitation, tool of development or both?’ (2010) 29 Policy and Society, 283-294, 283. 4 Department of Jobs and Small Business, Pacific Seasonal Worker Pilot Program (2018) <https://www.jobs.gov.au/pacificseasonal-worker-pilot-scheme>. 5 Stephen Howes, Richard Curtain, Matthew Dornan, Jesse Doyle, ‘Labour mobility in the Pacific is worth 80% of Pacific GDP’ (2016) DevPolicyBlog <https://www.devepolicy.org>.
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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan
(“FWO”) undertook an inquiry into the ‘Harvest Trail’, focusing on seasonal harvesting of fresh fruit and vegetables in regional Australia.6 While the FWO identified extensive exploitation and recovered over $1million in unpaid wages, the full extent of worker underpayments is believed to be significantly higher given poor record-keeping, cash payments and the highly transient workforce.7 The Inquiry found that more than two-thirds of growers relied on overseas workers. While the majority of workers were outside of the SWP (including working holiday makers and students), the FWO identified all temporary workers as vulnerable due to cultural and language barriers, low awareness of workplace rights and barriers to accessing assistance. Investigations of SWP employers revealed that eleven of the seventeen approved employers were non-compliant with Australian workplace laws.8 Pacific Islanders are particularly vulnerable and the SWP has become a ‘hotbed of exploitation’.9 The Australian South Sea Islanders Association noted: The SWP appears to have little oversight, independent auditing or enforcement of employer obligations. We believe history is repeating…with many cases of workers being underpaid and poorly treated.10 The ongoing operation of the SWP without adequate oversight, enforcement of workplace laws and opportunity for workers’ voices to be heard will result in continued and systemic human rights abuses. Unfortunately, in its 2019 budget, the Australian Government announced new measures to help farmers address agricultural workforce shortages as part of the SWP. These specifically meet the needs of employers, ‘making it easier for farmers to access workers for longer periods with less administrative costs.’11 It remains to be seen how this unfolds in terms of migrant worker vulnerability and exploitation.
6
Fair Work Ombudsman, Harvest Trail Inquiry: A report on workplace arrangements along the harvest trail (2018) <https://www.fairwork.gov.au/how-we-will-help/helping-the-community/campaigns/national-campaigns/harvest-trailinquiry> 7 Ibid, 4. 8 Ibid. 9 Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Hidden in Plain Sight: An Inquiry into Establishing a Modern Slavery Act in Australia (2017) 287. 10 Ibid. 11 The Hon David Coleman MP Minister for Immigration, Citizenship and Multicultural Affairs, ‘More support for farmers and regional economies’, Media Release 5 November 2018 <https://minister.homeaffairs.gov.au/davidcoleman>.
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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan
Pacific Labour Scheme The PLS commenced in July 2018 to fill labour shortages in rural and regional Australia. According to the Department of Foreign Affairs and Trade, the PLS will help meet demand, with workers from ten Pacific nations eligible to apply for low and semi-skilled employment.12 The PLS has an initial focus on sectors with projected employment growth, such as accommodation and food services, health and community care and agriculture. The program is said to include safeguards against worker exploitation through monitoring of employers, education and outreach with workers, and pre-departure briefings to ensure workers are informed of their work rights. A dedicated 24/7 information hotline is also provided.13 Where these safeguards are implemented, the PLS may better meet international human rights obligations. However, as migrant workers on the scheme are restricted by occupation type, industry sector, employer and duration of stay, protection of migrant worker rights remains questionable. Attas argues that when freedom of occupation is restricted, migrant workers are bound to their employer in what ‘resembles a master and slave relationship’.14 Freedom of occupation or free choice of employment is recognised as a basic human right in Art. 23 the Universal Declaration on Human Rights (“UDHR”) and Art. 6 of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) and failure to provide for this in temporary labour schemes in Australia limits the rights of migrant workers. The rights related to free choice of employment are reinforced in Article 52 of the ICRMW which indicates that while States can ‘restrict access to limited categories of employment’ it can do so only where this is necessary in the interests of the State and provided for in national legislation.15 Here, the interests of the State are clearly protectionist and Australia’s failure to ratify the ICRMW has more to do with its migration policies which diverge substantially from the right-based approach of the ICRMW. Failure to ratify reflects a lack of political will to
12
Department of Foreign Affairs and Trade, Pacific Labour Mobility (March 2019) <https://dfat.gov.au/geo/pacific/engagement/Documents/pacific-labour-scheme.pdf>. 13 Ibid. 14 Daniel Attas, ‘The Case of Guest Workers: Exploitation, Citizenship and Economic Rights’ (2000) 6 Res Publica, 73-92, 89. 15 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, opened for signature on 18 December 1990, 2220 UNTS 3 (entered into force 1 July 2003) (‘ICRMW’)
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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan
protect the rights of temporary migrant workers when these rights conflict with the economic interests of local employers and industry sectors. Unlike the SWP, which responds to fluctuating demand for rural labour, the PLS uses temporary migrant workers to fill ongoing and permanent positions, which raises two important questions. Firstly, if Australia has a permanent shortage of unskilled and semi-skilled workers in certain industries and certain regions, ‘then why are we not training locals to fill these positions, or paying wages that will attract locals to move to those areas?’ Secondly, ‘why bring in temporary workers to fill permanent positions?’16 Mares questions why temporary migrant workers joining the PLS are not offered a clear pathway to residency and concludes that only temporary visas are offered because this restricts migrants’ rights by limiting their mobility in the labour market, creating a subclass of workers who do the jobs Australians don’t want to do. He comments: If Australia continues down this path…aged and disability care in remote Australia will become the preserve of temporary migrant workers and, like horticulture, will be increasingly characterised by low pay, poor conditions and periodic scandals.17 While supporters of these schemes claim that exploitation can be addressed by better regulation and monitoring of workplaces, they fail to recognise that temporary migrants lack the same rights, protections and social support networks that Australian workers routinely enjoy including the right to remain in the country. Indeed, the continued focus on temporary labour programs moves Australia closer to a traditional guest-worker model in which a ‘cohort of subordinate, always-temporary migrants are continuously swapped out and replaced…’.18 As such, this issue is about more than workers’ rights and exploitation. As Australia’s migration policies move away from a model of full inclusion, towards guest-worker type temporary arrangements, the exploitation of insecure and vulnerable migrant workers will continue.19
Peter Mares, ‘All Work, no Stay?’ (2018) <https://www.sbs.com.au/allworknostay/>. Ibid. 18 Ibid. 19 Ibid. 16
17
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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan
The abolition of the 457-visa and its replacement with the Temporary Skills Shortage (TSS) visa highlights the increasing reality of Australia as a guest-worker society. The TSS visa has two streams which, according to Mares, moves Australia towards a two-tier system of temporary skilled migration: the upper-class medium-term visa holders who may eventually be accepted as full members of Australian society, and the low-class, short-term visa holders from whom ‘Australia only wants to extract value from migrants’ labour and has no further interest in them.20 Attas supports this, arguing that the temporary status of migrant workers is to ‘prevent them from improving their economic bargaining position so as to make them unwilling to take on the dirty, demanding and dangerous jobs on offer’.21 This is further supported by the Australian NGO Coalition stating in its submission to the CESCR, that the exploitation of migrant workers on temporary visas is widespread and that current safeguards offer inadequate protection. 22 While ratifying the ICRMW would not necessarily lead to immediate changes in Australia’s migration laws or visa conditions, it would require Australia to pay due regard ‘not only to labour needs and resources, but also to the social, economic, cultural and other needs of migrant workers and members of their families…’.23 The ICRMW provides for the political rights of migrant workers to be recognised and for them to be granted access to education, vocational guidance, housing (including social housing) and social and health services. Article 54 ensures migrant workers equality of treatment with nationals in terms of protection against dismissal, access to unemployment benefits, work schemes intended to combat unemployment and to alternative employments in the event of loss of work.24 These protections go beyond those prescribed in human rights instruments Australia is a party to and exceed the requirements of domestic legislation with regard to migrant workers. Despite the proposed additional regulation and monitoring of temporary migrant worker schemes, power imbalances, uncertainty of visas, lack of political voice and vulnerabilities associated with language and knowledge barriers will continue to result in exploitation, 20
Ibid. Daniel Attas, above n 15, 86. 22 Australian NGO Coalition, Review of Australia Fifth Periodic Report under the International Covenant on Economic, Social and Cultural Rights, Submission to the CESCR, May 2017, 51. 23 Above n 16 Art. 64(2). 24 Ibid. Art 54. 21
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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan
discrimination and abuse of temporary visa holders in Australia. It remains questionable whether Australia can meet its obligations under international human rights and labour rights conventions to protect temporary migrant workers. An overview of human rights and labour rights conventions is provided in Part III which argues that without ratifying conventions that specifically protect the rights of migrant workers, Australia will continue to exploit cheap and readily available labour without equal protection of workers’ rights. PART III INTERNATIONAL HUMAN RIGHTS AND LABOUR LAWS Australia lacks a constitutionally entrenched bill of rights. Instead it relies on a combination of international and local laws and the efforts of legislators to protect fundamental human rights. Several international human rights and labour rights conventions refer to the rights of migrant workers. Many have been ratified by Australia and codified in domestic legislation. Where treaties have not been ratified, they nevertheless provide a valuable framework to assess Australia’s efforts to enforce the rights of migrant workers and how the treatment of these workers could be improved to meet international obligations and expectations. As a member of the ILO and the UN, Australia should strive to fulfil the international labour and human rights ideals espoused by these organisations, regardless of whether particular conventions have been ratified. A brief overview of the key international human rights and labour rights instruments and how they relate to temporary migrant worker rights in Australia is included below. Universal Declaration of Human Rights The non-binding UDHR refers specifically to work-related rights. Art. 23(1) states that “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment”. Art. 23(2) contains the principle of the right to equal pay for equal work. Art. 24 states “Everyone has the right to rest and leisure, including reasonable limitation of working hours” and Art. 25 provides that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family”. The rights included in the UDHR are applicable to ‘everyone’ and
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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan
not limited to citizens of the State concerned. 25 They thus apply to temporary migrant workers in Australia. International Labour Organisation Constitution The ILO Constitution highlights the urgent need for the ‘protection of the interests of workers when employed in countries other than their own’.26 It recognises the importance of regulating hours of work, including the establishment of a maximum working day and week, the regulation of labour supply, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury, the principle of equal remuneration for work of equal value, recognition of the principle of freedom of association, and the organisation of vocational and technical education. As a member of the ILO Australia is obliged to protect the rights of all workers, including migrant workers. Importantly, according to the 1998 Declaration on Fundamental Principles and Rights at Work27, even those States that do not ratify ILO Conventions, still have obligations imposed by their membership to the ILO. ILO Conventions As previously discussed, two ILO conventions particularly focus on migrant workers: C-97 and C-143. Together with ICRMW they provide a comprehensive, rights-based approach to the protection of migrant workers and a recognition of their inherent rights. Despite the fact that migrant labour continues to play a key role in the Australian economy, Australia has not ratified ILO C-97, C-143 or ICRMW. A number of reasons have been provided by the government for failing to ratify including that the human rights of migrants and temporary entrants to Australia are protected under international law, including the treaties to which Australia is already a party.28
25
Universal Declaration of Human Rights, GA Res. 217 A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948). 26 Constitution of the International Labour Organisation, opened for signature 28 June 1919, preamble (entered into force 10 January 1920. 27 Declaration on Fundamental Principles and Rights at Work, International Labour Conference, 86th sess, Geneva, June 1998. <https://www.ilo.org/public/english/standards/relm/ilc/ilc86/com-dtxt.htm> 26 January 2000. 28 Above n 2, 3.
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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan
Art. 10 of C-143 provides that migrant workers are entitled to ‘equality of opportunity and treatment in respect of employment and occupation’. Where migrant workers continue to be restricted by industry sector and/or employer they will not enjoy the quality of opportunity and treatment as enjoyed by nationals. As such these basic human rights of Australia’s migrant workers employed under temporary labour programs will not be met. In addition to the principles and goals of the ILO, the fundamental rights of workers are outlined in a number of international human rights conventions. International Covenant on Economic, Social and Cultural Rights The ICESCR which Australia has ratified, contains a number of statements on workers’ rights. Art. 6 provides for the ‘right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts’. Art. 7 states that everyone has the right to fair wages and equal remuneration for work of equal value without distinction of any kind; a decent living for themselves and their families; safe and healthy working conditions; equal opportunity for everyone to be promoted in his employment; and rest, leisure and reasonable limitation of working hours.29 While Australia’s Migration Amendment (Enhanced Integrity) Regulations 2018 positively engages Art. 7 it does so only in terms of information that must be published about employers who breach their obligations. The response is effectively to ‘name and shame’ the employer or sponsor, rather than enforcing preventative measures to avoid human rights abuses occurring.30 The UN Committee on Economic, Social and Cultural Rights (“CESCR”) comments that States must take measures to combat discrimination and that this principle of nondiscrimination should apply in relation to employment opportunities for migrant workers and their families.31 This is discussed further below. International Covenant on the Elimination of All Forms of Racial Discrimination
29
International Covenant on Economic, Social and Cultural Rights, opened for signature on 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’) 30 Migration Amendment (Enhanced Integrity) Regulations 2018, Explanatory Statement, Attachment B. 31 Committee on Economic, Social and Cultural Rights, The Right to Work, General Comment No. 18, UN Doc. E/C.12/GC/18 (2006).
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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan
The ICERD, ratified by Australia, clearly excludes distinctions made between citizens and noncitizens.32 The ICERD Committee enforces this by stating that where differential treatment based on citizenship or immigration status exists, it will constitute discrimination ‘if the differential treatment is not applied to pursue a legitimate claim’.33 Australia’s commitment to this provision was highlighted in a landmark case heard in the Australian Federal Court in 2018. The court ruled that two Malaysian workers on temporary visas were deliberately exploited, underpaid and discriminated against by a Tasmanian hotel operator because of their race.34 While this case establishes a precedent, it represents a fraction of the discrimination and exploitation of migrant workers in Australia. Although Australia has ratified the ICESCR, the ICERD and a number of other UN and ILO conventions (not discussed here), it is argued that insufficient action has been taken to adequately protect temporary migrant workers and that Australia’s domestic laws do not consider their special vulnerabilities. Ratification of the ICRMW will go some way towards recognising and addressing these vulnerabilities and ensuring workplace and migration laws better reflect the needs of temporary migrant workers. The preamble to the ICRMW recognises the particular vulnerabilities of migrant workers. Additionally, Art. 25 provides that migrant workers shall enjoy treatment not less favourable than that which applies to nationals in respect of remuneration and other terms and conditions of work, such as overtime, hours of work, holiday pay, health and safety, and termination of employment. Art. 39 provides for the right of liberty of movement and freedom to choose their residence in the State of employment. Art. 43 provides that migrant workers shall enjoy equality of treatment with nationals in the areas of education, vocational guidance and training, housing, and social and health services. In recognising that the family is the fundamental unit of society, Art. 44 provides that states take appropriate measures to ensure protection of the unity of families of migrant workers. Articles 43 and 44 are of particular importance as the focus on temporary migrants as ‘workers’ often leaves out any analysis of their social and family lives. The ICRMW states that measure must be taken to facilitate reunification of migrant workers with their spouses
32
International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969). 33 CERD Committee, General Recommendation No. 30: Discrimination against non-citizens, UN Doc. HRI/GEN/1/Rev. 9 (Vol. II) (2004), para. 4. 34 Fair Work Ombudsman v Yenida Pty Ltd [2018] FCCA 1342 (24 May 2018).
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and minors. Under Australian domestic law, even where migrant workers are able to afford to bring their families to Australia, they have limited access to free public education, Medicare, government-funded legal assistance and many other forms of social security.35 There is no support for temporary migrant workers to bring their spouses or children to Australia despite recent revisions of visa schemes which enable temporary migrant workers to stay in Australia for a period of up to four years. This also brings into questions Australia’s obligations under the Convention on the Rights of the Child.36 The failure of Australia to ratify the migrant worker conventions is inconsistent with commitments to provide equal terms of work for all workers and demotes the human rights of migrants. This allows Australian employers access to a labour force subject to poorer conditions than local workers, and without the equal protection of their human rights.37 The Australian Government’s argument that migrant workers are protected by domestic legislation, including the Migration Legislation Amendment (Worker Protection) Act 2008, the Fair Work Act 2009, the Sex Discrimination Act 1984 and the Racial Discrimination Act 1975 neglects the special vulnerabilities experienced by migrant workers. These special vulnerabilities were acknowledged by the Australian government in its submission to the Modern Slavery Act Inquiry: 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.38 Despite this recognition of migrant worker vulnerability, little has been done to address migrant worker rights. In response to Australia not ratifying the ICRMW or ILO C-97 and C143, the Human Rights Council of Australia stated:
Shanthi Robertson and Martina Boese, ‘Temporary migrants are people, not labour’ The Conversation (online) 4 September 2015 <https://theconversation.com/temporary-migrants-are-people-not-labour-46941> 36 International Convention on the Rights of the Child, opened for signature on 20 November 1989, 1577 UNTS (entered into force 2 September 1990). (‘ICRC’) See especially Articles 9(1), 10, 18, 24, 26, 27 and 28. 37 Above n 2, 3. 38 Joint Standing Committee on Foreign Affairs, Defence and Trade, ‘Hidden in Plain Sight’ (2017) Inquiry into Establishing a Modern Slavery Act in Australia, 274 35
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Given the alarmingly high numbers in which employers are breaching their obligations, it is clear that domestic legislation alone cannot be relied upon to maintain the integrity of Australian labour standards and prevent employers from viewing migrant workers as a cheap and exploitable alternative to local workers. Ratifying the migrant worker conventions would diminish the power imbalance between employers and migrant workers, and foster a culture based on human rights and respect for the inherent dignity of all workers.39 Australia’s commitment to international human rights and labour laws ensures that domestic legislation protects Australian workers. The lack of commitment to ratifying specific migrant worker conventions means protections are not effectively extended to temporary migrant workers. While power imbalances remain and the vulnerabilities of migrant workers are not considered in domestic legislation, exploitation and abuse of migrant workers continues. The specific issues of exploitation of migrant workers is expanded upon in Part IV below. PART IV EXPLOITATION OF TEMPORARY MIGRANT WORKERS IN AUSTRALIA According to a 2015 ILO report, there are more than 150 million migrant workers globally. Many migrant workers travel from poor countries to wealthy countries where they are vulnerable to unscrupulous employers and employment agents, who take advantage of them. 40 Abusive working conditions may include ‘withholding of passports, threats of repatriation, non-payment or under-payment of wages, excessive working hours, unsafe and unsanitary living and working conditions, restrictions on the freedom of movement, verbal and physical abuse, inadequate housing conditions, and interference with the freedom of association and right to collective bargaining’.41 Reports of migrant workers enduring poor working conditions and other forms of abuse have steadily increased in Australia, with the FWO reporting in 2016 that migrant workers
feature in the worst examples of exploitation.42 After a two-year enquiry by the Federal
39
Above n 2, 7. International Labour Office Geneva, ‘ILO global estimates on migrant workers: results and methodology’ ILO 2015, xi <https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms_652001.pdf> 41 Erin Murphy Fries, ‘The International Labour and Human Rights of Migrant Workers under Canada’s Temporary Foreign Worker Program’ (2012), Faculty of Law, Lund University, 1-107, 9. 42 Fair Work Ombudsman, 2015–16 Fair Work Ombudsman Annual Report 2016c <https://www.fairwork.gov.au/aboutus/access-accountability-and-reporting/annual-reports>. 40
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Migrant Worker Taskforce, a report was released in March 2019 acknowledging that, in addition to other exploitative practices, ‘wage theft is widespread’.43 This supports a 2017 study into wage theft of Australian temporary migrant workers which revealed that a substantial proportion were paid half the legal minimum wage.44 Despite calls for structural reforms and remedial mechanisms, little has been done to address the scale of unremedied underpayment of migrant workers in Australia. More than 90% of migrant workers ‘suffer wage theft in silence’ due to the perceived low likelihood of a successful outcome and lack of knowledge and capacity of migrant workers.45 A recent inquiry into establishing a Modern Slavery Act in Australia heard evidence of exploitation of Malaysian workers, lured to Australia by unscrupulous migration agents and labour hire companies to work on farms in Victoria: 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.46 The same Inquiry heard that Australia’s response to modern slavery must address labour exploitation, particularly for migrant workers. The Salvation Army’s Freedom Partnership emphasised: …the integrity of Australia’s anti-slavery framework relies on robust protection 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.47 The Inquiry made it clear that issues of migrant worker exploitation lie at the intersection of anti-slavery, immigration and workplace laws, where temporary workers ‘are reluctant to
Migrant Workers’ Taskforce, Report of the Migrant Workers’ Taskforce (2019) Laurie Berg and Bassina Farbenblum, Wage Theft in Australia: Findings of the National Temporary Migrant Work Survey (2017) <https://www.mwji.org/publications/>. 45 Ibid. 46 Above n 38, 274. 47 Ibid, 270. 43 44
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complain about exploitative conditions for fear of losing the opportunity to work in Australia or, in severe cases, of retaliation by the employer.’48 Fear, deception, poverty, uncertain visa status, racial discrimination and poor knowledge of workplace rights leaves migrant workers vulnerable to exploitation and abuse at the hands of Australian employers and labour hire companies. In response to an ‘overwhelming influx’ of complaints about exploitation, the Tonga Australia Seasonal Workers Association (TASWA) undertook an investigation in 2017 into the exploitation of Tongan and Fijian workers on the SWP. The investigation confirmed the ‘depth, severity and prevalence of exploitation, abuse and modern slavery practices throughout the SWP.’49
The primary reasons Australia’s temporary migrant labour programs can be seen to promote exploitation and not effectively meet international human rights and labour standards include: •
the requirement that temporary migrant workers work for a single employer or in a particular sector, restricting free choice of employment and equality of opportunity;
•
recruitment of migrant workers by unlicensed and unregulated labour hire companies;
•
lack of information provided prior to departure on visa status and conditions;
•
limited right to rest and leisure, including reasonable limitation of working hours (although on 15 April 2019 the Fair Work Commission ruled that casuals on horticultural farms will receive overtime for more than 38 hours work/week and will be paid penalties for working more than 12-hour shifts);50
•
lack of access to education, housing, social and health services;
•
inadequate access to information and legal aid to enable migrant workers to pursue work-related claims.
While the Australian Government has implemented some measures to identify, manage and remedy issues of exploitation of migrant workers employed in temporary labour programs, more needs to be done. The introduction of the Commonwealth and NSW modern slavery legislation in 2018 places obligations on businesses to identify and manage risks of modern
48
Ibid. Ibid, 288. 50 Fair Work Commission [2019] FWCFB 2018 <https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb2108.html>. 49
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slavery in their operations and supply chains. This will go some way towards identifying unscrupulous labour hire practices across high risk sectors such as agriculture, construction, cleaning and security where use of low-skilled migrant labour is prevalent. Part V examines additional opportunities for protecting temporary migrant workers from exploitation in Australia.
PART V PROTECTING MIGRANT WORKERS – LEGAL AND OTHER MEANS Migrant worker exploitation is a complex and multi-faceted issue where employment, migration, corporations, taxation and other laws intersect and governments must use a variety of tools across numerous portfolios to prevent, detect and punish ‘rogue employers’. 51 To address the ongoing incidents of exploitation of migrant workers in Australia, the Migrant Worker Taskforce considered four key elements of compliance: 1. Ensuring migrant workers are aware of their entitlements and of how and where to get assistance; 2. The role of regulators in ensuring compliance; 3. Redress for underpayment of migrant workers; and 4. Addressing existing laws, functions and powers of regulators to enforce effective compliance.52 The Taskforce recommendations include amendments to the Fair Work Act 2009 to clarify that migrant workers are entitled to the same workplace protections, that penalties for breaches of wage exploitation provisions be increased in line with consumer laws and that criminal sanctions be introduced for the most serious forms of exploitative conduct. This recommendation comes despite new provisions enforced in September 2017 under the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, which recognised that ‘exploitation of vulnerable workers is a serious and systemic issue in Australia’s workplace relations system that needs to be addressed’.53
51
Above n 43, 13. Ibid, 6 53 Fair Work Ombudsman, Vulnerable and migrant workers, Annual Report 2017 – 2018 <https://www.fairwork.gov.au/annual-reports/annual-report-2017-18/02-fwo-performance-report/proactiveactivities/vulnerable-and-migrant-workers>. 52
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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan
In addition to the Migrant Workers’ Taskforce recommendations, the Tonga Australia Seasonal Workers Association has recommended changes to improve the accountability and transparency of the SWP, including developing a firm monitoring and reporting structure, reviewing accommodation provisions and regulating the labour hire contracting system.54 The ACTU’s five-point plan to end exploitation of temporary migrant workers includes a requirement that they are paid market rates and have their rights at work protected. It also calls for a change to Australia’s immigration laws to favour permanent over temporary migration and a commitment that temporary work visas are used only when there are cases of genuine skills shortages. The ACTU plan emphasises the importance of treating workers well, that they receive their full entitlements and that they are safe in the workplace. Access to remedy such as provided to Australian workers is also highlighted.55 Many of these recommendations reflect the principles and aims of the ILO and human rights conventions that Australia has not ratified. By ratifying C-97, C-143 and ICRMW and codifying the requirements of these conventions in domestic law, Australia will be better placed to ensure the inherent human rights and labour rights of temporary migrant workers are met. PART VI CONCLUSION With the ‘almost unlimited supply of migrants willing to accept low-skilled jobs in high income countries at wages and employment conditions significantly lower than those mandated by international norms’56 there remains a high risk of exploitation and abuse of migrant workers coming to Australia on temporary labour schemes. Australia’s reliance on domestic legislation, including the Migration Legislation Amendment (Worker Protection) Act 2008, the Fair Work Act 2009, the Sex Discrimination Act 1984 and the Racial Discrimination Act 1975 to protect migrant workers from exploitation, neglects the
54
Above n 38, 288. Australian Council of Trade Unions, Five-point plan to address unemployment and end exploitation of temporary visa workers (2018) <https://www.actu.org.au/actu-media/media-releases/2018/five-point-plan-to-address-unemployment-andend-exploitation-of-temporary-visa-workers>. 56 Martin Ruhs and Philip Martin, ‘Numbers vs. Rights: Trade-Offs and Guest Worker Programs (2008) 42 The International Migration Review, 249 – 265, 254. 55
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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan
special vulnerabilities of willing, yet low-skilled and often poorly educated temporary workers. Domestic legislation alone will not ensure international human rights obligations and expectations are met in relation to temporary migrant workers. While international conventions recognise the inherent vulnerabilities of migrant workers, Australia’s response to them does not. The continued promotion of temporary migrant labour schemes in the interests of aid and economic development may well result in Australia becoming a guest-worker nation intent on utilising cheap migrant labour to maximise the profits of Australian corporations. Australia’s response to the ongoing exploitation of temporary migrant workers should be guided by Max Frisch’s observations of the European guest-worker program of the 1960’s: They called for labour but people came.57 A rights-based, people-centric approach, supported by a strong regulatory framework is required to ensure the economic, social, cultural and political rights of migrant workers are realised. By ratifying migrant worker conventions, Australia will be better placed to respond to the needs of temporary migrant workers and provide a regulatory framework that effectively addresses international human rights obligations. Sonja Duncan, May 2019
57
Above n 35.
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