The Coalition Government intends to adopt in full 22 recommendations made in the final report of the Migrant Workers’ Taskforce, including criminalisation of serious worker exploitation and the creation of a National Labour Hire Registration Scheme.
The report was released on Thursday (7 March) and follows the establishment of the Taskforce in 2016 and chaired by former head of the ACCC Professor Allan Fels AO.
The Taskforce examined measures to better protect migrant workers following high profile cases of systematic underpayment and exploitation, most notably in the retail (the 7-Eleven case) and horticulture industries.
Minister for Jobs and Industrial Relations, the Hon Kelly O’Dwyer MP said the Government accepted in principle all 22 recommendations of the report and claimed it built on measures already introduced to protect vulnerable workers.
“The exploitation of workers in Australian workplaces is not only illegal, it harms individuals, undercuts law-abiding employers and reflects poorly on Australia’s international reputation,” Minster O’Dwyer said.
In highlighting the Government’s no tolerance for those who repeatedly and deliberately underpay workers, Minister O’Dwyer clarified criminal sanctions for “only the most serious and egregious” forms of deliberate exploitation of workers”, not employers that “accidentally or inadvertently do the wrong thing”.
It is understood the new sanctions would apply to both migrant workers and Australian nationals.
AMMA noted the announcement could help restore public confidence, however reinforced its well-established view on criminal charges being an excessive measure.
”AMMA’s long held position is that introducing criminal sanctions into workplace relations law is unnecessary given existing criminal law can already be applied in the most serious cases of unlawful treatment of employees,” Tara Diamond, AMMA Acting Chief Executive, said.
“Further, criminal charges would likely be counter-productive to the efficient recovery of underpaid wages for affected workers. We would also need to carefully consider how the introduction of criminal charges might affect reporting of underpayment or exploitation.
“However, AMMA does accept that a small number of isolated cases of deliberate and systematic underpayment of workers has damaged the public’s confidence in existing measures for preventing and prosecuting of this type of behaviour.
“We don’t believe introducing criminal sanctions into Australia’s workplace laws is the right answer, however if the government believes this path would restore that lost public confidence, limiting its application to ‘only the most serious and egregious cases’ would be critically important.
“This would largely preserve the existing approach for all but the most extreme and deliberate of cases, emphasising proactive education, efficiently identifying and remedying mistakes or oversights in payment processes, and administering civil penalties for minor breaches, first offenders and careless non-compliance.”
Another second major policy commitment resulting from the report is to establish a National Labour Hire Registration Scheme seeking to reduce exploitation and drive behavioural change among labour hire operators in “high risk sectors”.
The sectors identified as “high risk” by the Taskforce include horticulture, meat processing, cleaning and security.
The Taskforce has recommended this registration scheme to impose a low regulatory burden on labour hire operators (a “light touch” scheme), and apply only to the above four sectors.
AMMA has strongly opposed indiscriminate labour hire licensing schemes, such as those introduced by the Queensland, Victorian and South Australian Governments, and proposed nationally by the ALP Federal Opposition.
“A key basis for AMMA’s position is that exploitation of labour hire employees had only been identified in a limited number of sectors, and not the resources and energy industry where labour hire is a valuable, responsible and commercially necessary supplement to other employment models,” Ms Diamond said.
“For this reason, while AMMA does not support the introduction of any National Labour Hire Registration Scheme, the model proposed by the Taskforce is more appropriately targeted to those industries where concerns about labour hire practices have been identified.
“It is also critical that whichever party forms government following the 2019 Federal Election, that when implementing its preferred national labour hire licensing or registration scheme, that the national system would replace those already in place or proposed for various states and territories.
“Further, pursuing a low regulatory burden is a sound approach to ensuring any scheme is workable for labour hire providers without adversely impacting their business models and the job prospects of labour hire employees.”
Other notable recommendations include:
- An increase in penalties for breaching wage exploitation provisions of the Fair Work Act 2009 to a level more in-line with penalties in business and consumer laws;
- Providing the courts specific powers to make additional enforcement orders against employers who underpay workers;
- Increasing the information gathering powers of the Fair Work Ombudsman to match those of business regulators such as the ACCC; and
- Potentially excluding employers found guilty of underpaying migrant workers from employing new migrant workers for a specified time.
- The Taskforce report comes after the government provided $35.5 million in additional funding to the FWO in recent years to crackdown on law breaking including in relation to migrant workers.
Information about the Taskforce, its report and the government’s response is available here.
Implications for employers
AMMA notes this is the first major employment or workplace relations policy announcement released by the Federal Coalition Government in 2019, a Federal Election year.
While not anticipating our members to be overtly impacted, AMMA expects to be closely involved in the stakeholder consultation process as the Coalition Government refines and develops these policies.
With the Budget being brought forward to 3 April and a half-Senate Election due by May 18, in AMMA’s view it is more likely these policies will be taken by the Coalition to a full Election in May rather than legislated during this term.
The business community, including AMMA, has long held the position that introducing criminal sanctions into workplace relations law is unnecessary given existing criminal law can already be applied in the most serious cases of unlawful treatment of employees.
Further, criminal charges would likely to be counter-productive to the efficient recovery of underpaid wages for affected workers.
However, AMMA accepts that a small number of isolated cases of deliberate and systematic underpayment of workers has eroded the public’s confidence in existing measures for prevention and prosecution of this type of behaviour.
The government’s proposed approach of criminalising “only the most egregious” of cases may therefore address this issue of community confidence, while maintaining the current approach to educate, remedy and, where appropriate, apply punitive civil penalties for accidental or careless cases of wrongdoing.
For more information or to provide your views on these issues, contact [email protected].
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