Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 29) sur le travail forcé, 1930 - Australie (Ratification: 1932)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Australie (Ratification: 2022)

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received on 4 October 2017.

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons and forced labour practices. (a) Legislative framework and law enforcement. The Committee previously noted 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, trafficking in persons and debt bondage. The Committee also noted 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, which aimed at 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.

The Committee notes the Government’s information in its report that there have been two convictions for servitude under section 270.5 of the Criminal Code, the court decision of which was handed down on 8 February 2017. Two perpetrators were sentenced, respectively to three years’ imprisonment to be released on recognizance after having served 548 days in pre-sentence custody, and two years and six months’ imprisonment to be released on recognizance after having served 541 days in pre-sentence custody. Additionally, one prosecution for forced labour involving four defendants is currently before the courts. The Committee encourages the Government to continue its efforts to ensure that 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.

(b) Programme of action and multi-stakeholder cooperation. The Committee notes the Government’s information in its report that the National Action Plan (NAP) to Combat Human Trafficking and Slavery 2015–19 was launched in December 2014, which provides the strategic framework for the whole-of-community response to human trafficking, slavery and slavery-like practices, including forced labour. The Commonwealth Attorney-General’s Department is responsible for monitoring and implementing the NAP, in consultation with the Interdepartmental Committee on Human Trafficking and Slavery. The Committee also notes the Government’s indication that it continues to work with civil society to address forced labour and human trafficking. In August 2016, the Government established an expert multi-stakeholder Labour Exploitation Working Group under the National Roundtable on Human Trafficking and Slavery. The Working Group is considering measures to further address serious forms of labour exploitation that constitute slavery and slavery-like practices. The Committee requests the Government to provide information on the implementation of the National Action Plan to Combat Human Trafficking and Slavery 2015–19, as well as on the results of the work carried out by the Labour Exploitation Working Group.

(c) Protection of victims. The Committee notes the Government’s information that all victims of human trafficking referred by the Australian Federal Police are eligible for intensive support of 45 days through the Australian Government’s Support for the Trafficked People Programme. Support provided includes individual case management, safe and secure accommodation, medical and social care, counselling, skills development training and referral to legal and migration advice. A further 45 days of support is provided to victims who assist with the investigation or prosecution. Suspected victims assisting with an investigation and/or prosecution are provided ongoing support until the matter is finalized. It entitles them to additional benefits such as long-term accommodation, welfare benefits, access to medical care and legal services, English language training and assistance to obtain employment and training. Victims who assist with an investigation may also be eligible for a permanent visa to allow them and their family members to remain in Australia. The Committee requests the Government to continue providing information on the measures taken to ensure that all such victims are provided with protection and assistance, as well as on the number of victims identified and who have received rehabilitation and reintegration services.

2. Vulnerable situation of migrant workers. The Committee previously noted the acknowledgment by the ACTU that, since its last submission in 2010, a number of legislative reforms had 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 observed, however, that a number of violations of workers’ rights continued to be reported, including with regard to excessive working hours; underpayment 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 Government indicated that, since 2011, the Fair Work Ombudsman has developed information sheets in 27 languages in order to raise the awareness of workers. The Government also indicated that the Migration Act of 1958 had 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 an irregular situation.

The Committee notes from the ACTU’s observations that there are currently more than 1.8 million temporary visa holders in Australia, which equates to around 10 per cent of the total Australian labour force. The ACTU observes that, despite some attempts at improvements to the regulatory framework introduced by the Government, many of the previously raised problems persist. It indicates that temporary migrants are not ensured with access to information about their employment rights, and that those who make complaints against employers are often discriminated against, including on the basis of immigration status. The ACTU also expresses its support for the recent legislative amendments, including higher penalties for employers who violate relevant provisions.

The Committee notes the Government’s information that, in May 2016, it announced a Policy to Protect Vulnerable Workers. The Migrant Workers’ Taskforce was established in October 2016 and tasked with identifying further proposals for improvements in law, law enforcement and investigation, or other practical measures to quickly identify and rectify any cases of the exploitation of migrant workers. The Committee also notes that the Fair Work Amendment (Protecting Vulnerable Workers) Act was adopted in September 2017. The Amendment Act 2017 increases penalties for contraventions of prescribed workplace laws, provides for liability of franchisor entities and holding companies for underpayment by their franchisees or subsidiaries under certain conditions, expressly prohibits employers from requiring their employees to make unreasonable payments, and strengthens the evidence gathering powers of the Fair Work Ombudsman. Moreover, the Government indicates that a Joint Agency Task Force was established in June 2015 to enhance operational and intelligence capabilities to support government efforts targeting organized fraud, illegal work and the exploitation of migrant workers. This Task Force consists of the Department of Immigration and Border Protection, the Australian Border Force and the Fair Work Ombudsman.

At the state and territory level, the Governments of Victoria and South Australia are developing a labour hire licensing scheme. In South Australia, the draft bill in this regard is currently under consultation, which prohibits host employers from using unlicensed labour hire companies. The Committee requests the Government to continue providing 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. It also requests the Government to provide information on the application of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, in practice, including the violations detected and the penalties imposed in this regard. The Committee finally requests the Government to provide information on any progress made regarding the development of a labour hire licensing scheme in Victoria and South Australia.

Article 2(2)(c). Sentence of community work. The Committee previously requested the Government to provide information on 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. The Committee further notes that, according to section 37(c) of the Sentencing Act 1991 of Victoria, a court may make a community correction order in respect of an offender if the offender consents to the order.

The Committee notes that no information is provided by the Government regarding the community work in the Australian Capital Territory. However, the Committee notes that the sentencing option allowing some offenders to serve their sentence in the community is only available following the passage of the Crimes (Sentencing and Restorative Justice) Amendment Bill of 2015. As amended, section 77(1)(c) of the Crimes (Sentencing) Act provides that the court must not make an intensive correction order for the offender to serve the sentence in the community (on a community service condition or a rehabilitation programme condition, section 11(5)) unless the offender has given informed consent to serving the sentence by intensive correction. Section 77(2) further specifies that an offender gives informed consent if the offender consents after he/she is given (a) a clear explanation of the intensive correction order that contains sufficient information to enable the offender to make a balanced judgment about whether to or not to consent to serve the sentence by intensive correction; and (b) an opportunity to ask any questions about the order, and those questions have been answered and the offender appears to have understood the answers.