Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Forced Labour Convention, 1930 (No. 29) - Australia (Ratification: 1932)
Protocol of 2014 to the Forced Labour Convention, 1930 - Australia (Ratification: 2022)

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received on 1 September 2014.

Articles 1(1), 2(1) and 25 of the Convention. Legislative framework for forced labour practices. The Committee notes the information provided by the Government on the application in practice of Divisions 270 and 271 of the Criminal Code governing “slavery offences”, including slavery and slavery-like conditions, servitude, forced marriage, trafficking in persons and debt bondage. It notes, in particular, the Government’s indication that, since the adoption of the above provisions in 2005, ten individuals have been convicted of slavery-like offences, four of servitude and three of trafficking in persons. The Committee also notes the information on court decisions handed down and penalties imposed.

In this connection, the Committee notes with interest the adoption of a stand alone offence criminalizing forced labour pursuant to the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act of February 2013. According to the Government, the amendment was adopted with a view to ensuring that an element of movement is not required in order to prosecute forced labour, and that labour exploitation is captured and criminalized on a continuum of seriousness. Taking due note of this information, the Committee encourages the Government to pursue its efforts to ensure that thorough investigations and prosecutions are carried out against perpetrators of forced labour, including trafficking in persons and slavery-like practices, and requests it to continue to provide information on the application in practice of the relevant provisions of the Criminal Code, indicating the number of convictions and specific penalties applied. The Committee also requests the Government to provide information on the measures taken to protect victims and to facilitate their access to immediate assistance and effective remedies.

Vulnerable situation of migrant workers. The Committee notes the acknowledgment by the ACTU that, since its last submission in 2010, a number of legislative reforms have been introduced by the Government with a view to improving the “subclass 457” visa scheme and strengthening the protection of overseas skilled workers. The ACTU observes, however, that despite the measures adopted by the Government, a number of violations of workers’ rights continued to be reported, including with regard to excessive working hours; under-payment of wages; excessive placement fees and interest rates on loans for “457” visa holders; and threats of dismissal on the ground of trade union membership.

As regards measures to improve the protection of temporary migrant workers, the Committee notes the Government’s indication that, since 2011, the Fair Work Ombudsman has developed information sheets in 27 languages in order to raise the awareness of workers, including specific visa holders, on conditions of employment and workplace rights and entitlements. The Government also indicates that the Migration Act of 1958 has been amended pursuant to the Migration Amendment (Reform of Employer Sanctions) Act of 2013 with a view to strengthening sanctions for the employment of workers in irregular situation. The Committee requests the Government to continue to provide information on the measures taken, both in law and in practice, to protect migrant workers from abusive practices and conditions that amount to forced labour. The Committee also requests the Government to provide information on the measures adopted to ensure that all migrant workers can assert their rights, including by means of accessing the competent authorities.

Articles 1(1), 2(1) and 2(2)(c). Work of prisoners for private enterprises. In its previous comments, the Committee referred to section 33 of the Corrections Act, 1997 (Tasmania), according to which a prisoner may be directed to work within or outside of the prison precincts. The Committee also noted that, pursuant to Schedule 1 (Part 2.26) of the Act, refusal to comply with such direction is considered a prison offence. In this regard, the Committee noted the Government’s statement that prisoners in Tasmania are able to work for private enterprises at the discretion of the Director of Prisons, and that they are consulted regarding the type of work to be undertaken and must freely consent to perform such work. Noting the Government’s indication that, at the time of reporting, the response of the Government of Tasmania was not available, the Committee once again requests the Government to indicate how the formal, freely given and informed consent of prisoners is obtained in the case of work performed at private enterprises, such consent being authenticated by further guarantees covering the essential elements of a free labour relationship, such as wages, occupational safety and health and social security.

Sentence of community work. With regard to its previous request concerning measures taken in Victoria and the Australian Capital Territory to ensure that offenders do not perform community work under a community service order (CSO) for private institutions or organizations without their formal, informed and voluntary consent, the Committee notes the Government’s indication that, in Victoria, community work is only performed in not-for-profit agencies, which include local and state government institutions. The Government also indicates that the consent of offenders to undertake community work is requested in the assessment phase at Court and, if the condition of an alternative sanction is attached to the court’s order, an offender’s acceptance of the order entails consent to perform community service. In this connection, the Committee recalls that Article 2(2)(c) of the Convention expressly prohibits that convicted persons are hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception provided for in this Article for compulsory work of convicted persons does not extend to their work for private institutions, even if they are not for profit and even if they are under public supervision and control. The Committee also points out that, in order to ensure compliance with the Convention in a situation where community work may be performed for private institutions (for example, charitable bodies), convicted persons must give their formal consent to perform such work. The Committee therefore requests the Government to indicate clearly whether, in Victoria, community work under a CSO can be performed for any private institution acting in the community interest, and to provide a list of authorized associations and institutions, giving examples of the types of work to be performed as community work. Noting the Government’s indication that, at the time of reporting, the response of the Australian Capital Territory was not available, the Committee requests the Government once again to indicate the measures taken in this jurisdiction to ensure that persons performing community work under a CSO are not hired to or placed at the disposal of private individuals, companies or associations (including non-profitable organizations and institutions) without their voluntary consent.

Articles 1(1), 2(1) and 2(d). Powers to call up labour in cases of emergency. In its previous comments, the Committee noted that section 2(1) of the State Transport Act, 1938 (Queensland) concerning the declaration of a state of emergency (which grants the Governor in Council power to call up labour) is worded in terms broad enough to allow its application in circumstances not limited to the cases of emergency in the strict sense of Article 2(2)(d) of the Convention. The Committee also noted the Government’s statement that any such declaration under the above Act must be done by way of a regulation which is subject to the normal Parliamentary scrutiny, and that the declaration must be adopted in appropriate circumstances which reflect the full range of threats that might exist in contemporary society (including, for example, any threat of terrorism or terrorism-related activities). Noting that the Government’s latest report contains no information on this matter, the Committee reiterates its hope that the necessary measures will be taken, in the framework of a future revision of the legislation, in order to limit the scope of section 2(1) of the State Transport Act, 1938, to cases of emergency in the strict sense of the term, as described in the Convention (i.e. to events of war or of a calamity or threatened calamity, and in general to any circumstances that would endanger the existence or the well-being of the whole or part of the population), and requests the Government to provide information on any developments in this regard.