A recent report has revealed that not all workers in Australia are treated fairly and makes strong recommendations around how to remedy this, including proposed jail time for non-compliant employers.

It is hard to think of anything more Australian than the concept of giving someone a “fair go”. In our view, a Bunnings’ sausage sizzle comes a close second — even with the onions beneath the sausage.

As a nation, we pride ourselves on being fair, from casually declaring “fair cop, mate!” to our workplace relations system being governed by the Fair Work Act. Yet the report of the Migrant Workers’ Taskforce, released last week, tells a different story about how fair some employers are actually being to migrant workers, reporting that as many as 50 per cent of temporary migrant workers may be underpaid.

The exploitation of migrant workers has significant impacts not only on the individuals who are being underpaid, but also on the Australian economy. As the report details, “it is unfair not only to migrant workers, but also to other employees who are undercut on wages and job opportunities, and law-abiding employers trying to compete on price”. Accordingly, it is unsurprising that the report has recommended a total crackdown on employers who exploit workers, including criminal sanctions where exploitative conduct is clear, deliberate, and systematic.

The recommendations

The report, which was sparked by numerous underpayment scandals involving well-known companies such as 7-Eleven, Domino’s Pizza, and Caltex, makes 22 recommendations to address the exploitation of migrant workers in Australia. As well as the introduction of criminal sanctions including imprisonment, the report’s recommendations include:

• amendments to the Fair Work Act to clarify that migrant workers are entitled to workplace protections under that Act;
• amendments to the Fair Work Act to increase penalties for breaches of wage exploitation, in line with penalties for comparable offences under consumer laws;
• increased funding for the Fair Work Ombudsman to encourage the education of vulnerable workers with respect to how the Fair Work Ombudsman can assist them;
• increased powers of the Fair Work Ombudsman, especially with respect to information gathering powers, which are comparable to other business regulators such as the Australian Competition and Consumer Commission;
• the establishment of a National Labour Hire Registration Scheme that would require mandatory registration of labour hire operators in high risk industry sectors including: horticulture, meat processing, cleaning, and security;
• the development of legislation that would make it an offence for a person to knowingly unduly influence, pressure, or coerce a temporary migrant worker to breach a condition of their visa; and
• the development of a mechanism to exclude employers who have been convicted of underpaying workers from employing new temporary visa holders for a specified period.
  

The Federal government has accepted, in principle, all 22 recommendations made by the report. If the recommendations are implemented, the proposed amendments to the Fair Work Act, along with the recently enacted Modern Slavery Act, would create an unprecedented level of protection for vulnerable workers in Australia’s workplace relations system.

It remains to be seen whether all State governments will provide further support, although NSW has already introduced its own Modern Slavery Act, and the Premier of Victoria, the Hon. Daniel Andrews MP, has pledged that his state will be the first to criminalise wage fraud.

Support for criminal penalties

The Federal government has thrown its support behind criminal penalties for serious underpayments, breaking away from the bipartisan position to not criminalise breaches of workplace relations laws. However, employers have since urged the government to reverse its support, with the Australian Industry Group pointing out that criminal cases will not deliver backpay to underpaid workers and will only delay civil proceedings to recoup unpaid amounts while criminal proceedings are pending.

Watch this space to see whether the possibility of criminal sanctions prompts businesses to be “fair dinkum” about the “fair go”.

Aaron Goonrey is a Partner and Coral Yopp is a Lawyer in Lander & Rogers’ Workplace Relations & Safety practice.  Aaron can be contacted at agoonrey@landers.com.au