Migrant Workers' Taskforce Makes 22 Recommendations, Including New Criminal Penalties

Friday 8 March 2019 @ 11.45 a.m. | Industrial Law | Judiciary, Legal Profession & Procedure

On 7 March 2019, the Minister for Jobs and Industrial Relations, the Hon Kelly O’Dwyer MP (the Minister), released the report of the Migrant Workers' Taskforce (the Taskforce). The Taskforce was established in 2016 as part of the Federal Government’s commitment to protect vulnerable workers, and was chaired by Professor Allan Fels AO and Dr David Cousins A. The Taskforce's final report contains 22 recommendations targeted at improving workplace protections for vulnerable migrant workers.

Background and Terms of Reference

On 19 May 2016, following on a number of high profile cases (see the 7-Eleven Case for example) where vulnerable migrant workers had been underpaid and exploited at work, the Federal Government announced its Policy to Protect Vulnerable Workers which included the establishment of the Taskforce. The Taskforce was asked to identify:

proposals for improvements in law,
law enforcement and investigation measures, and
practical measures to more quickly identify and rectify any cases of migrant worker exploitation.

The Taskforce operated under the sponsorship of the Minister for Small and Family Business, the Workplace, and Deregulation.

The key terms of reference for the Taskforce were to:

Identify regulatory and compliance weaknesses that create the conditions that allow exploitation of vulnerable migrant workers
Develop strategies and make improvements to stamp out exploitation of vulnerable migrant workers in the workplace
Consider ways agencies can better address any areas of systemic and/or widespread exploitation of vulnerable migrant workers, including considering ways in which agencies can better collaborate to avoid such situations arising or to swiftly rectify them.

The methodology to be adopted by the Taskforce was set out as follows:

Monitor progress by 7-Eleven in rectifying its breaches
Receive updates on implementation of the Government’s Protecting Vulnerable Workers policy
Engage with Taskforce Cadena (which aims to detect and disrupt criminal syndicates that profit from the criminal exploitation of foreign workers and Australia's migration system) and other relevant compliance operations
Consider particular industries or groups of vulnerable migrant workers where there are systemic problems with exploitation and underpayment
Assess labour hire practices for companies that employ migrant workers
Take into consideration other relevant inquiries and activities in relation to vulnerable migrant workers (for example, Senate Inquiry reports and cross-government action on human trafficking)
Monitor emerging issues that relate to exploitation of migrant workers in the workplace
Any other appropriate means identified by the Taskforce

The Reports Recommendations

In its report, the Taskforce proposed 22 reforms. In broad terms they include:

a "root and branch review of the work place regulator";
the imposition of larger penalties for breach;
improvement of the ". . . remediation processes for underpaid workers" and
banning employers from employing visa holders for a specified period if they have been convicted in court of underpaying foreign visa holders.

Some changes proposed to the Fair Work Act 2009 (Cth) include:

that legislation be amended to clarify that temporary migrant workers working in Australia are entitled at all times to workplace protections under the Fair Work Act 2009 (Cth) (see Recommendation 3)
that legislation be amended to prohibit persons from advertising jobs with pay rates that would breach the Fair Work Act 2009 (Cth) (see Recommendation 4).
that the general level of penalties for breaches of wage exploitation related provisions in the Fair Work Act 2009 (Cth) be increased to be more in line with those applicable in other business laws, especially consumer laws. (see Recommendation 5)

With respect to labour hire the Taskforce has recommended (see Recommendation 14) the Government establish a National Labour Hire Registration Scheme with the following elements:

focused on labour hire operators and hosts in four high risk industry sectors across Australia; namely, horticulture, meat processing, cleaning and security
a mandatory requirement for labour hire operators in those sectors to register with the scheme
a low regulatory burden on labour hire operators in those sectors to join the scheme, with the ability to have their registration cancelled if they contravene a relevant law, and
a requirement that host employers in four industry sectors are required to use registered labour hire operators.

Government Accepts In Principle All 22 Recommendations

The Minister has said that the government has accepted in principle all 22 recommendations:

“The Coalition government has no tolerance for those who repeatedly and deliberately underpay workers, whether they are an Australian or a worker on a visa. For the very first time we will introduce criminal sanctions for the most serious and egregious forms of deliberate exploitation of workers, . . . ”

Of particular note is the Taskforce's recommendation of criminal penalties under the Fair Work Act 2009 (Cth) which the Government has accepted. This has been opposed by employer groups in the past, but in its report the Taskforce has found support to be growing for the idea, advising their introduction for serious and deliberate breaches. Under the current Fair Work Act 2009 (Cth) provisions, only civil penalties for breaches are included.

Comments of Taskforce Chairman

In the view of the Taskforce Chairman Professor Allan Fels, wage fraud has become more entrenched over time and has now become widespread. In his view, implementation of all 22 recommendations would make a significant difference to worker exploitation. Professor Fels told the Sydney Morning Herald that: "Wage theft has been getting out of hand", and in his view, was worse than consumer exploitation and in the more egregious cases needed the full force of the law, including prison sentences.

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