Statement in response to 4-Corners report

7 May 2015

On Monday, May 4, the ABC 4-Corners current affairs program detailed allegations of mistreatment of overseas workers.

In light of renewed media interest in these matters, the Fair Work Ombudsman has prepared this material to inform the community of our strong commitment to and track-record in assisting overseas workers.

Many of the issues canvassed by 4-Corners are well known to the Fair Work Ombudsman and we have been pro-active in bringing these issues into the public arena.

We agree there is a problem with the treatment of visa-holders by labour-hire contractors operating in the horticulture and poultry processing sectors, in particular.

While we have always had a strong focus in relation to visa-holders, we now give these vulnerable employees priority through our specialist Overseas Workers’ Team (OWT), which was established in July, 2012, in recognition that overseas workers can be vulnerable to exploitation or require specialist assistance.

The OWT provides assistance to workers in Australia on temporary visas who have work rights, newly-arrived migrants who may not be aware of Australia’s employment and workplace laws and newly-arrived migrants who, through their visa conditions, have committed to remain with their sponsoring employer for a period of time.

In mid-2013, in response to ongoing requests for assistance from employees in the horticulture sector and our own observations that there is confusion among growers and labour-hire contractors about their workplace obligations, we launched a three-year program we have named The Harvest Trail.

Similarly, after receiving requests for assistance from poultry plant workers, intelligence from the Australian Meat Industry Employees Union and assessing a report by ABC’s Lateline program into the alleged underpayment of overseas employees, we also commenced a second major inquiry into the poultry sector in November, 2013.

An estimated one million recently-arrived visa-holders in Australia have work rights, and the Fair Work Ombudsman recognises that overseas workers are often not fully aware of their workplace rights and that youth, language and cultural barriers can also create difficulties for them.

The Fair Work Ombudsman is active in industries known to employ significant numbers of overseas workers, including hospitality, horticulture, cleaning, convenience stores and trolley collecting and we are constantly looking at new and innovative ways to educate overseas workers about their workplace rights, particularly minimum pay rates.

In the past few years, the Fair Work Ombudsman has dealt with over 6000 requests for assistance from visa-holders and recovered more than $4 million in outstanding wages and entitlements for them.

Advice and assistance has also been provided to over 5000 overseas workers and visa-holders who have called the national Fair Work Infoline on 13 13 94.

Last financial year, the Fair Work Ombudsman recouped $1.1 million for almost 700 visa-holders who had sought help over underpayments.

In the first nine months of this financial year, the Agency has already returned $1.2 million to another 345 visa-holders found to have been underpaid.

Since the Fair Work Ombudsman was created on July 1, 2009, the Agency has commenced more than 50 litigations involving overseas workers. This represents about 20 per cent of all our legal activity for this period.

The highest penalty decision ($343,860) was a case against a cleaning company in Perth which underpaid overseas workers from Taiwan, Hong Kong, New Zealand and Ireland on 417 working holiday visas.

In the first nine months of this financial year, the Fair Work Ombudsman commenced nine legal matters involving overseas workers.

Since July 1, 2013, the Fair Work Ombudsman has had an expanded role to monitor 457 visa-holder sponsorship obligations. The role is limited to ensure that 457 visa-holders are receiving their nominated salary and performing the functions of their nominated position.

If monitoring reveals that employers are not meeting their sponsorship obligations, they are referred to the Department of Immigration & Border Protection (DIBP).

In August, 2014, the Fair Work Ombudsman announced a national inquiry into the wages and conditions of overseas workers in Australia on the 417 working holiday visa.

The 417 is a temporary visa issued by the Department of Immigration & Border Protection to young people who want to holiday and work in Australia for up to two years.

Our Overseas Workers’ Team has been active recently in areas attracting large numbers of 417 working holiday makers, including Cairns and the Sunshine Coast in Queensland, the Northern Rivers area of NSW and Alice Springs and Darwin in the Northern Territory.

In the first nine months of this financial year, the Fair Work Ombudsman has recouped $385,567 for 138 sub-class 417 visa-holders we found had been underpaid.

This is up on $345,000 recovered for 309 underpaid 417 visa-holders last financial year, $262,000 returned to 201 underpaid 417 visa-holders in 2012-13 and $67,000 reimbursed to 77 underpaid 417 visa-holders in 2011-12.

In August, 2014, Fair Work Ombudsman Natalie James delivered a keynote speech titled “Risk, Reputation and Responsibility” in which she highlighted our concerns about employers outsourcing their labour requirements and potentially turning a blind-eye to exploitation of the workforce.

The Fair Work Ombudsman is using the accessorial liability provisions of the Fair Work Act (Section 550) more and more to hold to account an individual or company other than the direct employer who is involved in a contravention of workplace laws.

The over-arching goal of the Fair Work Ombudsman is to understand the drivers of non-compliance with workplace laws and to seek to influence behaviours and change the culture where systemic issues are identified.

Background information:

Harvest Trail

Fair Work inspectors have made numerous field trips to various regions throughout Australia, meeting with growers, labour-hire contractors, hostel operators, seasonal workers themselves, industry bodies, local councils, unions and other relevant stakeholders.

The project is now moving out of an information-raising, education and awareness phase into checking that the messages and information we have provided has been listened to and acted upon.

As such, we have issued many on-the-spot fines for record-keeping and payslip breaches and formal notices have been issued to employers requiring contraventions to be rectified.

A number of stronger enforcement outcomes, such as litigation and Enforceable Undertakings, which we have been using successfully since 2009, are also under consideration.

It is important to note that as the workplace relations regulator, we deal with employment-related issues such as minimum wages and conditions.

While we regularly receive reports from seasonal workers and backpackers about being tricked into paying for jobs, sub-standard or unhygienic accommodation, high charges for food and transport, bullying, and sexual harassment, these matters are not within our legal jurisdiction and are passed onto other authorities as appropriate.

To assist backpackers, in particular, we published a list of Tips in January:

Don’t enter into work arrangements with people who meet you at regional airports or bus depots. These people will approach you with promises of guaranteed work picking fruit or vegetables and accommodation and transport. If it sounds too good to be true, then it probably is!
Don’t respond to questionable advertisements where there is only a first name and a mobile phone number provided. Legitimate providers will advertise for workers appropriately.
Know what you are worth. For work picking fruit or vegetables, or pruning, you should receive at least $21.08 an hour on a casual hourly basis.
If you are on a piece work agreement this should allow you to pick enough to make more than $21.08 per hour if you are an average worker. If you are a very hard worker you can earn more than this.
Know who you are working for – ask the question.
Keep a diary of the hours you work, the places you work and the type of work you are doing.
Take the time to find an ethical and legitimate provider that pays correctly and doesn’t seek to rip you off! The Australian Government has established a Harvest Trail Guide. This guide seeks to link legitimate labour hire providers with growers and provides a range of other information across all regions of Australia. The guide is available at www.jobsearch.gov.au/harvesttrail or by calling the National Harvest Trail hotline on 1800 062 332.
Enjoy your working holiday in Australia – remember that the growers rely on visitors such as yourself to harvest their crops – they should treat you well and make sure you are not exploited.

A follow-up social media campaign and advertising at regional airports is commencing shortly.

It is important to note that the Fair Work Ombudsman can only take enforcement action in relation to specific information, and ultimately clear and unambiguous evidence of breaches of workplace law.

To that end, we continue to encourage those who may have relevant information about the conduct of unscrupulous operators to contact us, and we are actively ensuring that industry bodies are apprised of our concerns and encouraging them to work with us to educate their membership.

Additional background information on recent activities in response to allegations of underpayment of overseas workers:

Convenience stores

On the evening of Saturday, September 12 last year, a team of Fair Work inspectors made simultaneous, unannounced site visits to 7-Eleven convenience stores in three capital cities, Sydney, Melbourne and Brisbane.

A total of 20 convenience stores were targeted for attention because of intelligence received by the Agency alleging systemic underpayment of wages and entitlements and false record-keeping practices – and the Fair Work Ombudsman is mindful that this is a sector that employs many young, potentially vulnerable employees – including international students from non-English speaking backgrounds.

Fair Work inspectors interviewed staff, took photographs where appropriate, collected records and served a number of Notices to Produce on businesses requiring them to produce records and documents for analysis.

An operational decision was taken to make the visits at night, and on a weekend, to allow inspectors to make observations and collect evidence which may not be available during normal daytime business hours.

Enforcement actions are arising as a result of this activity.

Cleaners

Following allegations from the union United Voice about overseas workers engaged as cleaners at the Melbourne Cricket Ground being underpaid, the Fair Work Ombudsman sent a team of six inspectors to the MCG after the match on Saturday, September 20, 2014, to gain first-hand information.

Inspectors have also contacted Migrante Melbourne (MM) – a Filipino community organisation which advocates for the rights and welfare of Filipino migrants in Victoria.

According to information provided to the Fair Work Ombudsman by United Voice, a company trading as First Education Consultants (FEC) assists Filipino nationals to take up positions as international students at Australian universities, while another arm of the business trading as First Placement Consultants (FPC) provides employment opportunities, such as cleaning jobs at the MCG.

Investigations are ongoing, involving international student workers predominantly from the Philippines, Colombia and India.

Trolley collectors

In the past six years, the Fair Work Ombudsman has recovered more than $433,000 in underpaid wages and entitlements for 528 trolley collectors throughout Australia.

A large number would have been overseas workers, many from non-English speaking backgrounds.

Following ongoing efforts by the Fair Work Ombudsman to protect vulnerable overseas workers employed as trolley collectors, the Agency managed to secure from supermarket giant Coles an admission that it has an “ethical and moral responsibility” to join with the Fair Work Ombudsman and stamp out exploitation of vulnerable trolley collectors.

Coles has given an undertaking to the Fair Work Ombudsman that it will revamp its trolley collection services, admitting its former practices were highly vulnerable to exploitation and poor employment practices, including underpayment of wages.

Coles’ admissions and other commitments are to be realised and achieved via an Enforceable Undertaking with the Fair Work Ombudsman.

Education

With around one million workplaces in Australia and 12 million employees, Fair Work inspectors cannot visit every workplace or check every pay packet.

Education is equally as important as deterrents in achieving compliance with workplace laws. We actively encourage overseas workers who have concerns that their workplace rights are being compromised to contact us.

We have an interpreter service on 13 14 50. Our website has materials translated into 27 different languages at www.fairwork.gov.au

The website has fact sheets tailored to overseas workers and international students. These are now being downloaded thousands of times a year, our web monitoring reveals.

The Agency has also produced videos in 14 different languages and posted them on YouTube. Further, we run workplace rights presentations and seminars with relevant groups, distribute in-language posters and brochures to migrant resource centres and community groups and pro-actively engage with ethnic media.

The Fair Work Ombudsman issues a large number of media releases publicising its work on behalf of overseas workers.

These media releases include information on the tools and resources available to people from culturally and linguistically diverse backgrounds to help them understand their workplace rights.

Where appropriate, these media releases are distributed to ethnic media.

We also endeavour to reach overseas workers by mediums such as Twitter, Facebook and YouTube.

Our Communications Team has run a number of successful campaigns targeted at overseas workers recently, including advertisements in language of origin on Korean websites.

Some recent media releases announcing matters involving overseas workers:

5 May 2015: Indian cooks allegedly coerced into paying thousands in cash in return for visa support

28 April 2015: On-the-spot fines, warnings for Darwin massage shops, nail salons underpaying workers

24 April 2015: Marine company used training program to disguise underpayment of Fijian workers, rules Court

20 April 2015: Chinese, Filipino workers short-changed $873,000 and housed in overcrowded accommodation

17 April 2015: Nando’s restaurant withheld wages and short-changed Korean worker thousands of dollars

13 April 2015: FWO specialist team flies in to gather intelligence on 417 visa-holder wages & conditions

10 April 2015: Restaurateur fined, admonished by Court for “disgraceful” treatment of foreign chef

24 March 2015: Campaign focus on clothing outworkers

17 March 2015: Travel agency signs workplace pact after short-changing Korean worker $4200 in just 7 weeks

13 March 2015: Indian couple allegedly paid no wages for more than a year’s work at country restaurants

5 March 2015: 4.5 stars, but hotel housekeepers underpaid