Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Articles 1(1) and 2(1) of the Convention. Vulnerable situation of temporary migrant workers and measures taken to protect them from exploitation. The Committee previously noted the comments on the application of the Convention submitted by the Australian Council of Trade Unions (ACTU) in a communication dated 1 September 2008, in which the ACTU expressed concern about the vulnerable situation of temporary overseas skilled workers, who were not adequately protected from exploitation and sometimes subjected to forced labour. According to the allegations, there were reported cases in which workers on temporary visas (under “the 457 visa scheme”) had been denied wages or had their wages illegally reduced to pay for recruitment or migration agent fees and airfares, had been forced to work long hours without adequate meals or rest breaks, in unsafe workplaces and had been threatened with deportation if they sought to enforce their rights. The Committee has also noted two supplementary communications by the ACTU on the above subject, dated 31 August and 25 October 2010 respectively, as well as the Government’s response received on 30 September 2010.

The Committee notes from the Government’s response that, on 1 April 2009, it announced a package of measures to improve the integrity, transparency and flexibility of the temporary business (“subclass 457”) programme. The Government indicates that the key labour market measures which address the concerns raised by the ACTU, include, inter alia, the development of a market salary framework to ensure “subclass 457” workers are not exploited and local wages and conditions of work are not undermined. This framework is consistent with Australian workplace law and practice which requires all sponsored “subclass 457” and other temporary visa holders with a work right to be engaged in accordance with Australian standards (including awards, agreements, workers’ compensation, occupational safety and health) and receive the same level of protection (in terms of investigation of claims of underpayment or exploitation) as Australian workers. The Government also indicates that, in addition to the Migration Legislation Amendment (Worker Protection) Act 2008, which provides for increased information exchange and cooperation between relevant departments in relation to sponsored temporary visa holders, the Minister for Immigration and Citizenship has announced the appointment of an independent legal expert to provide options for strengthening the employer sanctions legislation. The Government further indicates that in addition to investigation of complaints relating to “subclass 457” and other temporary visa holders, the government departments and agencies (including the Fair Work Ombudsman) have issued fact sheets to increase visa holders’ awareness of their rights.

In its communication dated 31 August 2010 referred to above, the ACTU noted that, since their first submission in 2008, “the 457 visa scheme” had been subject to extensive reform, which was aiming at preventing further exploitation of workers on temporary visas and included strengthening the powers of the relevant authorities to monitor, investigate and penalize non-compliance of employers with “the 457 visa” requirements, as well as the removal of the former inequitable minimum salary level wage rate system applicable to such workers. The ACTU also noted that the Federal Government had consulted with the social partners and the community throughout “the 457 visa scheme” reform process. While welcoming the reform process, the ACTU considered it important to continue to monitor the operation of the new laws and regulations in practice, so as to ensure that they adequately protect the rights of temporary migrant workers in Australia.

The Committee notes this information and hopes that the Government will continue to describe, in its future reports, the measures taken, both in legislation and in practice, to improve the protection of temporary migrant workers. Please provide, in particular, information on the results of the measures taken with a view to strengthening the employer sanctions legislation, to which reference has been made in the Government’s report.

Articles 1(1), 2(1) and (2)(c). Privatization of prisons and prison labour. Work of prisoners for private companies. In comments it has been making for a number of years, the Committee pointed out that the privatization of prison labour falls outside the express conditions provided in Article 2(2)(c) of the Convention for exempting compulsory prison labour from the scope of the Convention. The Committee recalled that compulsory work or service exacted from any person as a consequence of a conviction in a court of law is compatible with the Convention only if two conditions are met, namely: that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations. The two conditions set forth in Article 2(2)(c) are equally important and apply cumulatively: the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations. If either of the two conditions is not observed, the situation is not excluded from the scope of the Convention, and compulsory labour exacted from convicted persons under these circumstances is prohibited in virtue of Article 1(1) of the Convention. The Committee asked the Government to take the necessary measures to ensure observance of the Convention, such as, for example, to provide that any prisoners working for private enterprises offer themselves voluntarily without being subjected to pressure or the menace of any penalty and, given their conditions of captive labour, subject to guarantees as to wages and other conditions of employment approximating a free employment relationship. In such a situation, work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved.

The Committee previously noted that private prisons existed in Victoria, New South Wales, Queensland, South Australia and Western Australia, while there were no prisons administered by private concerns under the Tasmanian, Northern Territory and Australian Capital Territory jurisdictions. It appears, from the Government’s report, that there has been little change in national legislation and practice with regard to the work of prisoners in private prison facilities during the reporting period. The Government reiterates its view that its law and practice comply with the Convention, given that prisoners accommodated in privately operated facilities remain under the supervision and control of public authorities, as required by the exemption in Article 2(2)(c), and that the private sector has no rights to determine for itself the conditions for the work of prison inmates, such conditions being established by the public authorities. The Government therefore considers that prisoners are not “hired to or placed at the disposal of private individuals, companies or associations”, since the “legal custody” of prisoners has not been transferred to a private provider of prison services, and sentenced prisoners remain in the legal custody of the Secretary to the Department of Justice (Victoria) or the Chief Executive of the Department of Correctional services (South Australia) until they are released from prison.

The Committee draws the Government’s attention once again to the explanations concerning the scope of the terms “hired to or placed at the disposal of” contained in paragraphs 56–58 and 109–111 of its 2007 General Survey on the eradication of forced labour and observes that these terms cover not only situations where prisoners are “employed” by the private company or placed in a position of servitude in relation to the private company, but also situations where the companies do not have absolute discretion over the type of work they can request the prisoner to do, since they are limited by the rules set by the public authority. The Committee recalls, referring also to paragraph 106 of the above General Survey, that the prohibition for prisoners to be placed at the disposal of private parties is absolute and not limited to work outside penitentiary establishments, but applies equally to workshops operated by private undertakings inside prisons; consequently, it applies to all work organized by privately run prisons.

As the Committee repeatedly pointed out, work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention only where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, as required by Article 2(1) of the Convention. The Committee has considered that, taking into account their captive circumstances, it is necessary to obtain the prisoners’ formal consent to work for private enterprises in state-run prisons or in privatized prisons and that it should be given in writing. Further, given that such consent is required in a context of lack of freedom with limited options, there should be indicators which authenticate or satisfy the giving of the free and informed consent. The Committee recalls that the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health (see the explanations provided in paragraphs 59–60 and 114–120 of its 2007 General Survey referred to above).

The Committee notes from the Government’s report that no Australian jurisdiction is currently considering amending its law and practice. However, the Committee previously noted some positive trends relating to the practical application of existing legislation in certain Australian jurisdictions referred to above. Thus, as regards the question of voluntariness, it noted that, in New South Wales, employment of inmates in correctional centres is voluntary on the part of the inmate and there are no incidents of forced labour. The Government indicates in its latest report that, in order to ensure that “informed” consent of prisoners to work for private companies is achieved, the following measures are in place in the privately operated correctional centres (Junee and Parklea): an inmate wishing to apply for work must complete a form, sign it and present it to the Industry Manager; if an inmate believes that he or she has been forced to work, the inmate may raise the matter with his/her immediate supervisor or the Inmate Development Committee, or lodge a formal complaint to the General Manager of the centre or to the Ombudsman’s Office. The Government also states that the privately operated correctional centres in New South Wales are obliged to abide by the Forced Labour Convention, 1930 (No. 29). The Committee previously noted the Government’s indication that, in South Australia, where prison labour is compulsory both inside and outside the correctional institution under section 29(1) of the Correctional Services Act, 1982, prisoners at Mt Gambier Prison (South Australia’s only privately operated prison) apply in writing to undertake work programmes. The Government indicates in its latest report that prisoners in the Adelaide Pre-Release Centre are allowed to apply for outside employment with private enterprises, and any outside work undertaken by prisoners is voluntary. In Queensland, where prison labour is compulsory under section 66 of the Corrective Services Act, 2006, prisoners are not forced to participate in approved work activities: the Government indicates that, though no formal consent of prisoners is required, the work programme is a voluntary initiative that provides prisoners with the meaningful work projects to develop practical skills in order to assist their reintegration into the community; there are no consequences for a prisoner for refusal to participate in a work programme. As regards Western Australia, where prison labour is compulsory under section 95(4) of the Prisons Act, the Committee previously noted the Government’s indication that the relevant provision had not been enforced, and the prisoners were not forced to participate in work programmes, even in privately run prisons. The Government indicates in its latest report that there are currently six prisoner work camps established in regional Western Australia for the purposes of prisoners’ rehabilitation. Such work camp placement is voluntary and is initiated by the prisoner making a formal written application.

While noting with interest these developments in the positive trends of practical application of existing legislation in the Australian jurisdictions referred to above, the Committee expresses its hope that the necessary measures will be taken, both in law and in practice, to ensure that formal, freely given and informed consent is required for the work of prisoners in privately operated prisons, as well as for all work of prisoners for private companies, both inside and outside prison premises, so that such consent is free from the menace of any penalty in the wide sense of Article 2(1) of the Convention, such as loss of privileges or an unfavourable assessment of behaviour taken into account for reduction of sentence. Furthermore, in the context of a captive labour force having no alternative access to the free labour market, such “free” and “informed” consent needs to be authenticated by the conditions of work approximating a free labour relationship, as regards wage levels (leaving room for deductions and attachments), social security and occupational safety and health. The Committee trusts that such measures will be taken in all Australian jurisdictions, both in law and in practice, in order to grant prisoners working in privately operated facilities and other prisoners working for private enterprises a legal status with rights and conditions of employment that are compatible with this basic human rights instrument, and that the Government will soon be in a position to report the progress made in this regard.

The Committee also hopes that the Government will not fail to provide information on the practical impact of the recommendation of the Australasian Correctional Industries Association’s code of practice to establish an independent consultative body which includes representatives of industry, unions and the community to monitor the development and operation of correctional industries, which was referred to by the Government in its previous report, as well as information on any other measures taken or envisaged to ensure compliance with the Convention.

The Committee is raising other points in a request addressed directly to the Government.