Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

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

The Committee welcomes the ratification by Australia of the Protocol of 2014 to the Forced Labour Convention, 1930. It hopes that the Government will provide detailed information on its application, in accordance with the report form adopted by the Governing Body.

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received on 31 August 2021.

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons and forced labour practices. Legislative framework. The Committee notes the adoption of the Commonwealth Modern Slavery Act 2018, which defines modern slavery as trafficking in persons and offences of slavery and slavery-like conditions, including forced labour, pursuant to Divisions 270 and 271 of the Criminal Code. It notes with interest that the Act requires large companies and other entities, including the Australian Government, to publish annual modern slavery statements outlining their efforts to assess and address modern slavery risks in their operations and global supply chains. Such statements are publicly available through the Modern Slavery Statements Register. The Committee notes that, in December 2021, the Australian Government published the Commonwealth Modern Slavery Statement 2020–21 which covers the operations and global supply chains of all non-corporate Commonwealth entities.

As regards New South Wales, the Committee notes the adoption of the Modern Slavery Act 2018 (NSW Act) which, among others, provides for the appointment of an Anti-slavery Commissioner, responsible for promoting action to combat modern slavery, and identifying and providing assistance and support for victims of modern slavery. It notes that, for consistency purposes, reporting obligations for companies which were provided for under the NSW Act were repealed by the Modern Slavery Amendment Act 2021 (Amendment Act) . Companies in New South Wales are therefore expected to follow the requirements of the Commonwealth Modern Slavery Act 2018 regarding the annual publication of modern slavery statements.

The Committee notes that, while welcoming the adoption of the new legislation, in its observations, the ACTU expresses concern regarding a certain number of weaknesses, such as: (1) the lack of independent oversight to ensure that companies comply with the Commonwealth Act; (2) the lack of penalties for companies failing to report or act on modern slavery in their supply chains and operations; and (3) the lack of requirements for the Commonwealth to withhold Government procurement contracts or other benefits or support to companies who have failed to report or show they are taking action on eliminating modern slavery from their operations and supply chains. It notes that the Australian Human Rights Commission expressed similar concerns and also regretted the lack of a national compensation scheme for victims of slavery and trafficking in persons (AHRC, Submission to the CESCR, 7 January 2022, paragraph 52).The Committee requests the Government to provide information on the application in practice of the Commonwealth Modern Slavery Act and the New South Wales Modern Slavery Act, including on the impact that reporting requirements may have had in preventing and addressing trafficking in persons and forced labour in operations or services of companies and public entities.

National Action Plan. The Committee notes the Government’s indication, that the National Action Plan to Combat Human Trafficking and Slavery 2015–19 was superseded by the National Action Plan (NAP) to Combat Modern Slavery 2020–25, which identifies five national strategic priorities, namely: (1) prevent, (2) disrupt, investigate and prosecute, (3) support and protect, (4) partner and (5) research. The Government adds that a Monitoring and Evaluation Framework was established in order to track progress against short, medium and long-term outcomes. As regards the work carried out by the expert multi-stakeholder Labour Exploitation Working Group under the National Roundtable on Human Trafficking and Slavery, the Government indicates that the working group formulated 27 recommendations in August 2018, which are currently under consideration by the Government. The Committee welcomes the adoption of the National Action Plan to Combat Modern Slavery 2020-25 and requests the Government to indicate whether the outcomes established under the five strategic priorities have been produced, as well as any assessment of the results achieved and the possible obstacles identified. It also requests the Government to provide information on any actions taken or contemplated as a result of the recommendations formulated by the Labour Exploitation Working Group.

Identification and protection of victims. The Committee previously noted that, in the framework of the Australian Government’s Support for the Trafficked People Programme, all victims of trafficking in persons referred by the Australian Federal Police are eligible for intensive support of 45 days, and a further 45 days for victims who assist with the investigation or prosecution. The Committee notes the Government’s indication that, from July 2017 to June 2021, 259 persons were referred to this programme. Support provided includes individual case management, financial assistance, safe and secure accommodation, medical and social care, counselling, skills development training and referral to legal and migration advice. Furthermore, according to the 2021 report from the Interdepartmental Committee on Human Trafficking and Slavery, from July 2017 to June 2020, a total of 119 visas were granted through the Human Trafficking Visa Framework, to suspected victims of trafficking who have assisted with the criminal justice process and would be in danger if returned to their country. The Committee notes the Government’s indication that the Fair Work Ombudsman established operational processes, created educational resources and delivered training to ensure that Fair Work inspectors identify and refer potential instances of trafficking in persons and slavery, including in collaboration with the Australian Federal Police. While welcoming the measures implemented by the Government to identify and protect victims of trafficking, the Committee notes from a report published in 2019 by the Australian Institute of Criminology, that for every victim detected by authorities, it was estimated that four victims remained undetected (Statistical Bulletin No. 16, pp. 1 and 6). The Committee encourages the Government to continue to strengthen the capacity of law enforcement officials in order to properly identify situations of trafficking in persons. It requests the Government to continue to provide information on the measures taken to ensure that all victims of trafficking in persons are provided with protection and assistance, as well as on the number of victims who have been identified and benefited from rehabilitation and reintegration services.

Law enforcement. The Committee notes the Government’s indication that, in 2020–21, the Australian Federal Police investigated more than 224 reports for matters relating to trafficking in persons and modern slavery. The Government adds that, since 2017, there have been five convictions for trafficking in persons, slavery or slavery-like offences, pursuant to Divisions 270 and 271 of the Criminal Code. In that regard, the Committee notes the Government’s statement that the low number of convictions, compared to other types of crimes, reflects the fact that trafficking in persons and modern slavery often goes unrecognized or unreported, including as a result of evidentiary difficulties and alleged offenders remaining overseas. The Committee notes with concern the persistent low number of convictions regarding trafficking in persons. It requests the Government to strengthen its efforts to ensure that all persons who engage in trafficking and slavery-like practices are subject to prosecutions and that, in practice, sufficiently effective and dissuasive penalties are imposed on perpetrators. In this regard, it requests the Government to provide information on the number of investigations, criminal proceedings initiated, persons convicted and penalties imposed on the basis of Divisions 270 and 271 of the Criminal Code.

2. Vulnerable situation of migrant workers. The Committee previously noted that despite the legislative reforms introduced by the Government, a number of violations of migrant workers’ rights persisted in practice, such as excessive working hours, underpayment of wages, discrimination and threats of dismissal. It notes that, in its observations, the ACTU indicates that forced labour occurs in high-risk industries, including agriculture, construction, domestic work, meat processing, cleaning and hospitality, which employ a high percentage of migrant workers. The ACTU adds that, in recent years, there has been an unprecedented expansion of temporary labour migration in Australia, in particular in the horticulture industry, where a 2021 report showed that over 40 per cent of Australia’s horticulture workforce is on temporary visas. The ACTU expresses further concerns regarding a skilled migration programme that relies excessively on employer-sponsored visas where workers are tied to a single employer, which increases the risk of exploitation. In the ACTU’s views, routine underpayments, which includes employers paying below award rates of pay and not paying superannuation entitlements, is one form of labour exploitation that is rife in Australia, with migrant workers being particularly vulnerable. The ACTU recommends that the Government should introduce a national Labour Hire Licensing Scheme in order to address this situation. The Committee notes, in this regard, the Government’s indication that, in March 2019, the final report was released of the Migrant Workers’ Taskforce, which was established to identify further improvements needed both in law and practice to prevent and address the exploitation of migrant workers. The Government states that significant progress has been made in implementing the above Taskforce’s 22 recommendations. The Committee notes, more particularly, that the Taskforce recommended the creation of a national Labour Hire Registration Scheme in order to require recruitment agencies to register with the Government and employers to use only these registered agencies. The Government indicates that this recommendation has not been implemented at national level yet, but consultations are under way.

In this regard, the Committee notes that such registration schemes have been adopted at state and territory level, more particularly in Queensland (Labour Hire Licensing Act 2017) and South Australia (Labour Hire Licensing Act 2017), Victoria (Labour Hire Licensing Act 2018) and the Australian Capital Territory (Labour Hire Licensing Act 2020). As a result, specific offences were established for providing labour hire services without licence or for engaging workers through an unlicensed labour hire provider. The Committee further notes that, in Queensland and Victoria, new criminal wage theft offences were introduced in the legislation with penalties of imprisonment for employers, through the Criminal Code and other legislation (Wage Theft) Amendment Act 2020 and the Wage Theft Act 2020 respectively. Such offences address situations where employers dishonestly withhold wages and other employee entitlements, or engage in practices to obscure wage theft through falsification of employee entitlement records or failure to keep such records. The Committee notes with interest the legislative measures adopted at the state and territory level in order to protect workers from exploitation. In this regard, it notes that, according to the 2021 Lives in Limbo report from the Migrant Workers Centre, there is a clear correlation between workplace exploitation and temporary visa status, with 91 per cent of workers who experienced wage theft arriving on a visa with no pathway to permanent residency. Furthermore, 65 per cent of temporary visa holders have experienced wage theft and one in four have additionally experienced other forms of labour exploitation.

The Committee further notes the Government’s statement that initiatives to enhance migrant workers’ awareness of workplace rights and entitlements, including through information provided in visa grant notices, have been continued, including in collaboration with the Fair Work Ombudsman (FWO). The FWO promotes compliance with workplace laws by providing education, assistance, advice and guidance to employers and employees, including vulnerable workers, through its website, online tools and resources, and anonymous report tool available in 16 languages. In this respect, the Committee notes that the FWO and the Department of Home Affairs have established an Assurance Protocol to support temporary visa holders to address the FWO for assistance in cases of workplace exploitation. Under the Assurance Protocol, temporary visa holders will usually not have their visa cancelled if they breached their work-related visa conditions because of workplace exploitation, provided they have sought assistance from the FWO. The Committee notes the Government’s indication that, as at May 2021, eight decisions have been handed down relating to contraventions of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, two of which involve the “serious contraventions” provisions, but observes that no information is provided on the nature of the violations detected.

The Committee requests the Government to continue to provide information on the measures taken, both in law and practice, to protect migrant workers from abusive practices and ensure that they are not placed in a position of accrued vulnerability to forced labour. It also requests the Government to provide information on the application in practice of the Labour Hire Licensing Acts adopted in the Australian Capital Territory, Queensland, South Australia and Victoria, as well as the wage theft provisions adopted in Queensland and Victoria, indicating the number of violations detected and the penalties imposed in this regard. Lastly, the Committee requests the Government to provide information on any progress made regarding the development of a national labour hire licensing scheme, and the implementation of the other recommendations formulated by the Migrant Workers’ Taskforce.