On May 4, 2015, Four Corners, an Australian investigative journalism program, broadcasted a report titled "Slaving Away," uncovering the exploitation of temporary labor within Australia's agricultural and food processing sector (the "Report"). The Report examined the conduct of a number of labor hire companies supplying workers engaged in seasonal crop picking and the processing of fresh foods that are sold in many major Australian supermarket chains, such as Coles, Woolworths, and Aldi.
The Report revealed that some labor hire companies are exploiting vulnerable tourists, predominately from Asia, who have travelled to Australia on holiday visas. These tourists are often in a vulnerable position, due to their lack of understanding of Australian labor laws and lack of competent English skills. The labor hire companies appear to be paying such workers significantly less than the minimum wages set out in the applicable awards, and in some cases up to half of the award wage. Further, it is alleged that the labor hire companies often impose unsatisfactory working conditions, including long hours and poor working environments.
Underpayment of workers and the imposition of unsatisfactory working conditions is a clear contravention of Australian labor laws on the part of the labor hire companies. However, it is also possible that the farmers who engage noncomplying labor hire companies, and the supermarkets acquiring the services of such labor through labor hire companies, could be liable under the accessorial liability provisions in the Fair Work Act 2009 (Cth) (the "Act"). They will be found liable if they are "involved" in a contravention of the Act. Under section 550 of the Act, a person is "involved" in a contravention if he/she aids, abets, counsels, procures, or induces it, or is knowingly concerned in or party to it, or has conspired with others to affect it.
Depending on its involvement in the labor hire arrangements, a particular farmer or supermarket could be caught by section 550. For example, if the supermarket had the capacity to influence the conduct of the labor hire companies, had knowledge of the poor working conditions, and had knowledge that the workers were being underpaid, this could constitute sufficient involvement to amount to a contravention. If the amount paid by a farmer under a labor hire agreement is so low that it could not conceivably allow the labor hire company to pay workers the minimum award wage, that farmer may also face liability under section 550.
It remains to be seen whether any action will be taken against the companies and individuals implicated in the Report. However, given the broad nature of section 550 and expanding reach of Australian labor law generally, there is potential for such action to be brought against numerous actors in relation to the exploitation of temporary labor in the Australian agricultural and food processing sector.
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