Hostname: page-component-745bb68f8f-cphqk Total loading time: 0 Render date: 2025-01-07T19:00:41.515Z Has data issue: false hasContentIssue false
  • English
  • Français

Regulating Australia’s ‘Gangmasters’ through Labour Hire Licensing

Published online by Cambridge University Press:  01 January 2025

Anthony Forsyth
Anthony Forsyth*
Affiliation:
Graduate School of Business and Law, RMIT University
*
The author may be contacted at anthony.forsyth@rmit.edu.au.
Get access Rights & Permissions [Opens in a new window]

Abstract

This article examines the recent introduction of state-based regulation to address the increasingly prominent problem of exploitation of vulnerable workers by labour hire providers around Australia. Mounting evidence of underpayments and other breaches of workplace laws has emerged from a range of state and federal inquiries into the labour hire sector in recent years. The article draws parallels between these abuses and the exploitative activities of ‘gangmasters’ in industrial-era Britain. It then closely analyses and compares the labour hire licensing schemes introduced in Victoria, Queensland and South Australia, which aim to combat noncompliance by introducing barriers to entry and eliminate ‘rogue’ operators from the labour hire market. The article assesses the effectiveness of similar licensing and registration schemes in several overseas jurisdictions, especially the gangmasters licensing scheme operating in the United Kingdom since 2004. The article concludes that the licensing schemes introduced under the three state laws are a timely and, most likely, effective new approach to tackling the problem of noncompliance with workplace and other laws. Alternative responses to exploitation at the federal level are also considered, including the 2017 Vulnerable Workers legislation introduced largely in response to systemic underpayments in the 7-Eleven franchise network. Finally, the article observes that federal reform of the labour hire sector may emerge in the near future, given the Labor Opposition’s policy commitment to introduce a national labour hire licensing scheme. In the meantime, the state labour hire licensing schemes examined in this article represent an important step forward in regulation to combat worker exploitation by contemporary Australian ‘gangmasters’.

Type
Articles
Information
Federal Law Review , Volume 47 , Issue 3 , September 2019 , pp. 469 - 493
Copyright
Copyright © 2019 The Author(s)

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

The author thanks the FLR’s anonymous referees for their helpful feedback on a draft of this article.

References

Notes

1. See, eg, ‘Slaving Away’, Four Corners (Australian Broadcasting Corporation, 2015); Nick McKenzie and Richard Baker, ‘Fruits of their Labour’, The Sydney Morning Herald (online at 2016) <https://www.smh.com.au/interactive/2016/fruit-picking-investigation/>; Charlie McKillop, ‘Shocking exploitation of workers prompts renewed calls for national crackdown on dodgy labour hire companies’, ABC Rural (online at 28 March 2017) <https://www.abc.net.au/news/rural/2017-03-28/growers-call-for-national-crackdown-on-worker-exploitation/8394252>; Sarina Locke, ‘How labour hire villains make millions from Australia’s “modern slavery” market’, ABC Rural (online at 1 November 2017) <https://www.abc.net.au/news/rural/2017-11-01/exploitation-or-slavery-of-tongans-malaysians-in-horticulture/9102676>. See also Ann Arnold, ‘The new black’, The Monthly (online at February 2017) <https://www.themonthly.com.au/issue/2017/february/1485867600/ann-arnold/new-black>; Rosie Ayliffe, ‘88 dangerous days’, The Monthly (online at March 2017) <https://www.themonthly.com.au/blog/rosie-ayliffe/2017/21/2017/1490070435/88-dangerous-days>.

2. Richard Johnstone et al, Beyond Employment: The Legal Regulation of Work Relationships (Federation Press, 2012) 60–5.

3. Ibid.

4. See, eg, Elsa Underhill and Malcolm Rimmer, ‘Itinerant Foreign Harvest Workers in Australia: The Impact of Precarious Employment on Occupational Safety and Health’ (2015) 13(2) Policy and Practice in Health and Safety 25.

5. See, eg, Nicola Verdon, ‘The Employment of Women and Children in Agriculture: A Reassessment of Agricultural Gangs in Nineteenth-Century Norfolk’ (2001) 49(1) The Agricultural History Review 41, 44–5.

6. Ibid 44.

7. Quoted in Environment, Food and Rural Affairs Committee, Gangmasters (House of Commons Paper No 691, Session 2002–03) 5.

8. Kendra Strauss, ‘Unfree Again: Social Reproduction, Flexible Labour Markets and the Resurgence of Gang Labour in the UK’ (2013) 45(1) Antipode 180, 186.

9. Ibid 187; John Patrick, ‘Agricultural Gangs’ (1986) 36(3) History Today, <https://www.historytoday.com/john-patrick/agricultural-gangs>.

10. Patrick, above n 9.

11. Strauss, above n 8, 188.

12. Ibid 180; Patrick, above n 9.

13. Strauss, above n 8, 188–9.

14. Ibid; Environment, Food and Rural Affairs Committee, above n 7, 6–10.

15. See, eg, Jill Insley, ‘A working life: the gangmaster’, The Guardian (online at 30 July 2011) <https://www.theguardian.com/money/2011/jul/29/working-life-gangmaster>; Kendra Strauss, ‘Unfree Labour and the Regulation of Temporary Agency Work in the UK’ in Judy Fudge and Kendra Strauss (eds), Temporary Work, Agencies and Unfree Labour: Insecurity in the New World of Work (Routledge, 2013) 164.

16. Insley, above n 15.

17. Strauss, above n 8, 189–90; Sayomi Ariyawansa, ‘A Red-Tape Band-Aid or a Solution? Lessons from the United Kingdom’s Gangmasters (Licensing) Act 2004 for Temporary Migrant Workers in the Australian Horticulture Industry’ (2017) 30(2) Australian Journal of Labour Law 158, 170–1.

18. See, eg, Industrial Relations Victoria, Victorian Inquiry into the Labour Hire Industry and Insecure Work (Final Report, 31 August 2016) 17, 25, 47, 53–4, 81, 183, 198, 247, 253 (‘Victorian Inquiry Report’); on the use of similar terminology in the UK see Michael Wynn, ‘Regulating Rogues? Employment Agency Enforcement and Sections 15–18 of the Employment Act 2008’ (2009) 38(1) Industrial Law Journal 64.

19. The Victorian Inquiry was constituted as a Formal Review under Part 4 of the Inquiries Act 2014 (Vic).

20. Victorian Inquiry Report, above n 18, 94–5.

21. Ibid ch 4.

22. Ibid 178–9; see also 156–9.

23. Ibid 178–85.

24. Ibid 180.

25. Ibid 181–5, examining in detail the practices of Mr Serdar Donmez (including information provided to the Inquiry by Mr Peter Crisp MP).

26. Ibid 155.

27. Ibid 253–9.

28. Finance and Administration Committee, Parliament of Queensland, Inquiry into the Practices of the Labour Hire Industry (Report No 25 of the 55th Parliament, June 2016) 19–23 (‘Queensland Inquiry Report’); see also 24–6.

29. Ibid 38–9.

30. Ibid 23.

31. Economic and Finance Committee, Parliament of South Australia, Final Report: Inquiry into the Labour Hire Industry (Report No 93, October 2016) 24–35 (‘SA Inquiry Report’).

32. Ibid 9.

33. See Office of Industrial Relations, Queensland Government, Regulation of the Labour Hire Sector 2016 (Issues Paper, December 2016); Office of Industrial Relations, Queensland Government, Labour Hire Licensing Scheme: Decision Regulatory Impact Statement (March 2017).

34. See, eg, SA Inquiry Report, above n 31, 65.

35. Victorian Inquiry Report, above n 18, 253.

36. At the time of the Victorian Inquiry, the GLAA was known as the GLA; its name was changed to the GLAA by s 10 of the Immigration Act 2016 (UK) as part of a broader program of reform to enforcement arrangements aimed at combating labour market exploitation. See further ACL Davies, ‘The Immigration Act 2016’ (2016) 45(3) Industrial Law Journal 431.

37. See Gangmasters (Licensing) Act 2004 (UK).

38. For detailed discussion of the GLAA scheme, see Victorian Inquiry Report, above n 18, 208–15; See also Ariyanwansa, above n 17.

39. Victorian Inquiry Report, above n 18, 255; on the effectiveness of the GLAA scheme and licensing or registration laws in other jurisdictions, see Part IV(A) below.

40. Victorian Inquiry Report, above n 18, 254–9.

41. SA Inquiry Report, above n 31, 51–2.

42. Senate Education and Employment References Committee, Parliament of Australia, A National Disgrace: The Exploitation of Temporary Work Visa Holders (Report, March 2016) 166–82.

43. Ibid 327–8.

44. Ibid 335.

45. Joint Standing Committee on Migration, Parliament of Australia, Seasonal Change — Inquiry into the Seasonal Worker Programme (Report, May 2016) 149; the Programme enables employers in the Australian agricultural, accommodation and tourism sectors to access temporary migrant workers from specified Pacific Island countries.

46. Ibid 149–50.

47. FWO, A Report on the Fair Work Ombudsman’s Inquiry into the Labour Procurement Arrangements of the Baiada Group in NSW (Report, June 2015).

48. FWO, Inquiry into the Wages and Conditions of People Working under the 417 Working Holiday Visa Program (Report, October 2016). See also FWO, Harvest Trail Inquiry: A Report on Workplace Arrangements along the Harvest Trail (Report, November 2018).

49. See, eg, Fair Work Ombudsman v Crystal Carwash Café Pty Ltd (No 2) [2014] FCA 827; Fair Work Ombudsman v Eastern Colour Pty Ltd (No 3) [2016] FCA 186; Fair Work Ombudsman v Australian Sales & Promotions Pty Ltd and Another [2016] FCCA 2804. In a more recent case, the FWO obtained penalties against a labour supplier, its directors and the host business to which it provided workers, for breaches including underpayments and misrepresenting employment relationships as independent contractor arrangements: see Fair Work Ombudsman v First Group of Companies Pty Ltd (Deregistered) and Others [2018] FCCA 1228.

50. See, eg, Joanna Howe, ‘“Predatory Princes”, “Migration Merchants” or “Agents of Development”? An Examination of the Legal Regulation of Labour Hire Migration Intermediaries’ in John Howe, Anna Chapman and Ingrid Landau (eds), The Evolving Project of Labour Law: Foundations, Development and Future Research Directions (Federation Press, 2017) 192; Elsa Underhill and Malcolm Rimmer, ‘Layered Vulnerability: Temporary Migrants in Australian Horticulture’ (2016) 58(5) Journal of Industrial Relations 608; Ariyawansa, above n 17. See also Maria Azzurra Tranfaglia, ‘Agency Work and its Regulatory Challenges: Lessons Learnt through a Comparative Overview of Australian and Italian Approaches’ in Howe, Chapman and Landau, 206.

51. See, eg, Laurie Berg and Bassina Farbenblum, Wage Theft in Australia: Findings of the National Temporary Migrant Work Survey (Migrant Worker Justice Initiative, UNSW Law Faculty and University of Technology Sydney, 2017); Bassina Farbenblum and Laurie Berg, Wage Theft in Silence: Why Migrant Workers Do Not Recover Their Unpaid Wages in Australia (Migrant Worker Justice Initiative, UNSW Law Faculty and University of Technology Sydney, 2018); Stephen Clibborn and Chris Wright, ‘Employer Theft of Temporary Migrant Workers’ Wages in Australia: Why has the State Failed to Act?’ (2018) 29(2) Economic and Labour Relations Review 207; Stephen Clibborn, ‘Multiple Frames of Reference: Why International Student Workers in Australia Tolerate Underpayment’ (2019) Economic and Industrial Democracy (forthcoming); Iain Campbell, Martina Boese and Joo-Cheong Tham, ‘Inhospitable workplaces? International students and paid work in food services’ (2016) 51(3) Australian Journal of Social Issues 279; Tess Hardy, ‘Who Should Be Held Liable for Workplace Contraventions and on What Basis?’ (2016) 29(1) Australian Journal of Labour Law 78.

52. Labour Hire Licensing Act 2017 (Qld) s 3(1) (‘LHL Act (Qld)’); Labour Hire Licensing Act 2018 (Vic) s 4 (adding as part of the objective the protection of workers from exploitation by hosts); Labour Hire Licencing Act 2017 (SA) s 3(1)(a), (c).

53. LHL Act (SA), above n 52, s 3(1)(b).

54. See also LHL Act (Qld), above n 52, s 3(2); LHL Act (SA), above n 52, s 3(2).

55. LHL Act (SA), above n 52, s 2 and sch 1, cl 1; the effect of these provisions was that a labour hire provider would not be subject to the legislation’s licensing requirements until 1 September 2018, or (if they applied for a licence during the transition period) until their licence application was decided.

56. In June 2018, the South Australian Government announced that the licensing requirements under the LHL Act (SA) would not be enforced until 1 February 2019: see now SA Consumer and Business Services ‘Labour hire laws’ (Web page, 19 September 2018) <https://www.cbs.sa.gov.au/campaigns/labour-hire-laws>.

57. LHL Act (Vic), above n 52, ss 115–18; some administrative provisions of the legislation commenced operation on 27 June 2018.

58. LHL Act (Qld), above n 52, ss 2, 109.

59. Ibid s 7(1).

60. Ibid s 7(2).

61. Ibid s 8(1).

62. Finance and Administration Committee, Parliament of Queensland, Labour Hire Licensing Bill 2017 (Report No 41, 55th Parliament, July 2017) 9–10.

63. Annie Lawson, ‘AiG urges Qld Govt to scrap labour hire licencing bill’, Workforce (Current Awareness, 26 July 2017). <http://legalonline.thomson.com.au.virtual.anu.edu.au/a24/resultDetailed.jsp?id=514753&referer=rss>.

64. Parliament of Queensland, above n 62, 12 (see also 10–11).

65. See LHL Act (Qld), above n 52, s 7(3)(c) and (4), enabling regulations to be made prescribing a person/class of persons who is not automatically to be considered to be providing labour hire services, where the supply of worker(s) is not the dominant purpose of the business ordinarily carried on by that person/class; and s 8(2), under which regulations can exclude a person from the definition of ‘worker’ in s 8(1).

66. Office of Industrial Relations, Queensland Government, Consultation Paper 2: Possible Treatments to Refine the Scope of the Labour Hire Scheme (undated).

67. See also LHL Regulation 2018 (Qld) reg 4(2).

68. See Fair Work Act 2009 (Cth) s 333 and Fair Work Regulations 2009 (Cth) reg 2.13.

69. LHL Act (Vic), above n 52, s 7(1); see also s 7(2), that is, someone will be providing labour hire services, regardless of whether there is a contract between the provider and host, whether the supplier provides the workers directly or through an intermediary or whether the work is performed under the control of the provider or host (and see LHL Act (SA), above n 52, 7(3)).

70. LHL Act (SA), above n 52, s 7(1).

71. See LHL Act (Qld), above n 52, s 8(1) and LHL Act (Vic), above n 52, s 9(1); LHL Act (SA), above n 52, s 8(1).

72. Victoria, Parliamentary Debates, Legislative Assembly, 14 December 2017, 60 (Mr Donnellan, Minister for Roads and Road Safety).

73. Explanatory Memorandum, Labour Hire Licensing Bill 2017 (Vic) 2; see also LHL Act (SA), above n 52, s 7(1), above n 2.

74. Explanatory Memorandum, Labour Hire Licensing Bill 2017, above n 73, 2.

75. Ibid 3.

76. Ibid 2; LHL Act (SA), above n 52, s 7(1), above n 2.

77. Regulations may be made under LHL Act (Vic), above n 52, ss 10–12.

78. Department of Economic Development, Jobs, Transport and Resources, Victoria, Victoria’s Labour Hire Licensing Scheme: Consultation Paper — Development of Regulations (undated) 4; the consultation closed on 6 December 2017.

79. LHL Regulations (Vic) reg 4(1)(a).

80. Ibid reg 4(1)(b).

81. Ibid reg 4(1)(c).

82. Ibid reg 4(1)(f); see also FW Act, above n 68, s 12 (definition of ‘vocational placement’) and s 13 (persons undertaking a vocational placement are excluded from the definition of ‘employee’ for purposes of the FW Act).

83. LHL Act (SA), above n 52, s 7(2), (4)(c), (5).

84. The Labour Hire Licensing Regulations 2018 (SA) do not address issues relating to the coverage of the SA licensing scheme.

85. Victoria, Parliamentary Debates, Legislative Assembly, 14 December 2017, 59 (Mr Donnellan, Minister for Roads and Road Safety).

86. Ibid 59–60; the Victorian Inquiry Report, above n 18, 255, had acknowledged that the Victorian Government could implement a licensing scheme of general application if, for example, ‘problems in the design and application of a sector-specific scheme are too difficult to overcome’. Despite the decision to implement a universal scheme, the Inquiry’s sector-specific proposal is reflected to some extent in the LHL Regulations (Vic), above n 79, reg 5; this essentially provides that the performance of certain types of work activities in the cleaning, horticulture or meat manufacturing/processing industries are considered to be included in the circumstances in which an individual performs work ‘in and as part of a business or undertaking’ (within the meaning of s 12(a) of the LHL Act (Vic)) and are therefore automatically covered by the legislation. So, for example, outsourcing arrangements in those sectors would be covered, even though they might not otherwise meet the definition of the provision of labour hire services under the LHL Act (Vic). See further Deloitte, Regulatory Impact Statement for Regulations to be made under the Labour Hire Licensing Act 2018 (July 2018); and Department of Economic Development, Jobs, Transport and Resources, Victoria, Response to Public Submissions on the Exposure Draft Labour Hire Licensing Regulations 2018 (undated).

87. See the detailed wording set out in LHL Act (Vic), above n 52, s 8(1); and Explanatory Memorandum, Labour Hire Licensing Bill 2017 (Vic) 4–5.

88. See Victorian Inquiry Report, above n 18, 178–85.

89. See LHL Act (Vic), above n 52, s 8(2); and Explanatory Memorandum, Labour Hire Licensing Bill 2017 (Vic), 5.

90. See also LHL Act (Qld), above n 52, s 10(1); LHL Act (SA), above n 52, s 11(1).

91. See also LHL Act (Qld), above n 52, s 10(2); LHL Act (SA), above n 52, s 11(2).

92. See also LHL Act (Qld), above n 52, s 11(1); LHL Act (SA), above n 52, s 12(1).

93. See also LHL Act (Qld), above n 52, s 11(2); LHL Act (SA), above n 52, s 12(2).

94. See also LHL Act (Qld), above n 52, s 12; LHL Act (SA), above n 52, s 13.

95. See also LHL Act (Qld), above n 52, s 90; LHL Act (SA), above n 52, s 14.

96. Ss 13, 15(1) and 94(1) and (2) (Items 1 and 3).

97. Ss 10(1) and 11(1).

98. Ss 11(1) and 12(1).

99. Victoria, Parliamentary Debates, Legislative Assembly, 14 December 2017, 60 (Mr Donnellan, Minister for Roads and Road Safety).

100. See, eg, LHL Act (Vic), above n 52, s 88.

101. See also LHL Act (Qld), above n 52, s 13(3) and LHL Regulation (Qld), above n 52, regs 5–14; LHL Act (SA), above n 52, s 15(2).

102. ‘Relevant person’ is defined in s 3, as are the terms ‘labour hire industry law’, ‘minimum accommodation standards’ and ‘workplace law’ (eg this includes the FW Act, Occupational Health and Safety Act 2004 (Vic), Equal Opportunity Act 2010 (Vic), Long Service Leave Act 1992 (Vic) and Superannuation Guarantee (Administration) Act 1992 (Cth)).

103. See also LHL Act (Qld), above n 52, s 27 and LHL Act (SA), above n 52, s 10; note that both the Qld and SA statutes impose an additional ‘character’ component to the fit and proper test, going to an applicant’s honesty, integrity and professionalism.

104. See also LHL Act (Qld), above n 52, s 14; LHL Act (SA), above n 52, s 15(4).

105. Although the Authority may grant a licence if any of these requirements is not met, where it ‘is satisfied that it is appropriate in all the circumstances to grant the licence’: LHL Act (Vic), above n 52, s 24(2).

106. LHL Act (Vic), above n 52, s 24(2).

107. LHL Act (Qld), above n 52, s 15(a); LHL Act (SA), above n 52, s 17(1)(a)(i), (b(i)–(ii) and (c).

108. LHL Act (SA), above n 52, s 17(1)(a)(ii) and (b(iii); see also LHL Act (Qld), above n 52, s 15(b), which is worded differently but to the same effect.

109. LHL Act (Vic), above n 52, s 17(8). See also LHL Act (Qld), above n 52, s 105; LHL Act (SA), above n 52, s 15(3)

110. LHL Act (Vic), above n 52, s 3.

111. Ibid s 32.

112. LHL Act (Qld), above n 52, s 93, although note that this provision only allows an ‘interested person’ (see s 3) to apply for review of a decision to issue a licence (rather than to object up-front).

113. LHL Act (SA), above n 52, s 16, enabling a ‘designated entity’ (this includes an ‘industrial association’ and state or Commonwealth agencies — the FWO is an obvious example) to object to a licence application.

114. LHL Act (Vic), above n 52, s 26; see also ss 28–31 regarding applications to renew licences.

115. LHL Act (Qld), above n 52, s 17; see also ss 18–21 (renewal/restoration of licences).

116. LHL Act (SA), above n 52, s 20(1).

117. LHL Act (Vic), above n 52, s 34; LHL Act (Qld), above n 52, ss 31–2 (and LHL Regulation (Qld) reg 15); LHL Act (SA), above n 52, s 20(2), (6).

118. LHL Act (Vic), above n 52, pt 4. The inaugural Commissioner is Mr Steve Dargavel, a former official of the Australian Manufacturing Workers Union.

119. Ibid ss 51, 60; on the public Register, see ss 48–9 and on Codes of Practice, see s 109.

120. Ibid s 64.

121. Ibid ss 67–84.

122. Ibid s 102.

123. See, eg, LHL Act (Qld), above n 52, ss 13(1), 15; ‘Labour Hire Licensing Queensland’ Queensland Government (Web Page) <https://www.labourhire.qld.gov.au/>. Reference is also made in government material to a body called the Labour Hire Licensing Compliance Unit, see, eg, ‘Labour Hire Licensing Queensland — Laws and Compliance’ Queensland Government (Web Page) <https://www.labourhire.qld.gov.au/i-provide-labour-hire/laws-and-compliance>.

124. LHL Act (Qld), above n 52, ss 47–8.

125. Ibid ss 57–84.

126. See, eg, LHL Act (SA), above n 52, ss 15, 17; ‘Labour Hire Licence’ SA Government (Web Page) <https://www.sa.gov.au/topics/business-and-trade/licensing/labour-hire/labour-hire-licence>.

127. LHL Act (SA), above n 52, ss 34–40.

128. For discussion of alternative regulatory approaches in other countries see, eg, Tranfaglia, above n 50) Michael Wynn, ‘Power Politics and Precariousness: The Regulation of Temporary Agency Work in the European Union’ in Judy Fudge and Kendra Strauss (eds), Temporary Work, Agencies and Unfree Labour: Insecurity in the New World of Work (Routledge, 2013), 48.

129. See, eg, Howe, above n 50, 200–1.

130. Fay Faraday, Profiting from the Precarious: How Recruitment Practices Exploit Migrant Workers (Report, Metcalf Foundation, April 2014), 67–74 <https://metcalffoundation.com/wp-content/uploads/2014/04/Profiting-from-the-Precarious.pdf>.

131. Judy Fudge and Daniel Parrott, ‘Placing Filipino Caregivers in Canadian Homes: Regulating Transnational Employment Agencies in British Columbia’ in Fudge and Strauss, above n 15, 70, 85–8 (see especially at 87).

132. Faraday, above n 131, 75–6.

133. Ibid 87.

134. See above nn 36–41 and accompanying text.

135. David Metcalf, Director of Labour Market Enforcement, United Kingdom Labour Market Enforcement Strategy 2018–19 (Report, May 2018) 96.

136. Ibid 25.

137. Ibid.

138. See Ariyawansa, above n 17, 174; nn 132–3, for a comprehensive list of all relevant internal and external evaluations of the GLAA.

139. See, eg, Mick Wilkinson, Gary Craig and Aline Gaus, Forced Labour in the UK and the Gangmasters Licensing Authority (Wilberforce Institute, University of Hull, 2010); GLA, The Preventative Impact of Licensing on Labour Exploitation (June 2015) 4. See also a list of external reports over the period 2011–15 which ‘identified that good regulation prevents more serious exploitation and have also called for the expansion of the GLA remit to more effectively reduce exploitation and safeguard workers’: at 8–9.

140. Metcalf, above n 136, 68, 95.

141. See, eg Association of Labour Providers, Response: Tackling Exploitation in the Labour Market (Report, November 2015).

142. Ariyawansa, above n 17, 176–7.

143. Ibid 175–6; Wilkinson, Craig and Gaus, above n 140, 19–33.

144. Amy Weatherburn and Alex Toft, ‘Managing the Risks of Being a Victim of Severe Labour Exploitation: Findings from a Research Project Exploring the Views of Experts in the UK’ (2016) 45(2) Industrial Law Journal 257, 260.

145. Trades Union Congress, Tackling Exploitation in the Labour Market: TUC Response to Business Innovation and Skills/Home Office Consultation (Report, 15 January 2016) 5; see also Ariyawansa, above n 17, 177–9.

146. Mick Wilkinson, ‘Out of Sight, Out of Mind: The Exploitation of Migrant Workers in 21st Century Britain’ (2012) 20(1) Journal of Poverty and Social Justice 13, 17–19.

147. UK Parliament, House of Lords and House of Commons, Joint Select Committee on Human Rights, Human Rights and Business 2017: Promoting Responsibility and Ensuring Accountability (6th Report of Session 2016–17, 5 April 2017) 44.

148. Metcalf, above n 136, 100.

149. Ibid.

150. Ibid 95–6.

151. GLA, above n 140, 1.

152. See above nn 18, 33–41 and accompanying text.

153. Ariyawansa, above n 17, 181.

154. See below Part V.

155. On the competing arguments relating to the targeting of labour law protections more generally, see Guy Davidov, ‘Setting Labour Law’s Coverage: Between Universalism and Selectivity’ (2014) 34(3) Oxford Journal of Legal Studies 543; Guy Davidov, ‘Special Protection for Cleaners: A Case of Justified Selectivity?’ (2015) 36(2) Comparative Labor Law and Policy Journal 219.

156. See, eg, Helen Anderson, ‘Labor’s Policy to Deal with Phoenix Activity Affecting Employees’ (2016) 34 Company and Securities Law Journal 316.

157. The Vic LHL Authority has initially been allocated A$8.5 million: see Warwick Long, ‘Labour hire licensing high on Victorian ALP agenda despite farmer opposition’, ABC News (online, 28 March 2018) <https://www.abc.net.au/news/rural/2018-03-28/labour-hire-licensing-bill-high-on-victorian-alp-agenda/9587112>.

158. Minister for Education and Minister for Industrial Relations The Honourable Grace Grace, Labour hire provider loses license to operate in Queensland (Media Release, 7 August 2018) <http://statements.qld.gov.au/Statement/2018/8/7/labour-hire-provider-loses-license-to-operate-in-queensland>.

159. David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (Harvard University Press, 2014).

160. See further Johnstone et al, above n 2.

161. Ibid ch 3.

162. Andrew Stewart and James Stanford, ‘Regulating Work in the Gig Economy: What are the Options?’ (2017) 28(3) Economic and Labour Relations Review 420.

163. This is a necessary consequence of the constitutional division of powers in this area of regulation: the federal Parliament, primarily through the corporations power in s 51(xx) of the Australian Constitution, can pass wide-ranging legislation regulating the employment relations of corporations, leaving the states with limited legislative capacity. See further Andrew Stewart, Anthony Forsyth, Mark Irving, Richard Johnstone and Shae McCrystal, Creighton and Stewart’s Labour Law (6th edition, The Federation Press, 2016) chs 5–6. Note, however, that the Victorian Labor Party took a policy to the November 2018 election to introduce criminal consequences under state law for underpayments affecting Victorian workers: Premier of Victoria, ‘Dodgy employers to face jail for wage theft’ (Media Release, 26 May 2018) <https://www.premier.vic.gov.au/dodgy-employers-to-face-jail-for-wage-theft/>.

164. See, eg, ‘7-Eleven: The Price of Convenience’, Four Corners (Australian Broadcasting Corporation, 30 August 2015); Victorian Inquiry Report, above n 20, 349–53; Laurie Berg and Bassina Farbenblum, ‘Remedies for Migrant Worker Exploitation in Australia: Lessons from the 7-Eleven Wage Repayment Program’ (2018) 41(3) Melbourne University Law Review 1035.

165. Adele Ferguson and Maria Christodoulou, ‘Domino’s Pizza workers kept in the dark about underpayment for almost two years’, The Sydney Morning Herald, (online, 14 February 2017) <https://www.smh.com.au/business/workplace/dominos-pizza-workers-kept-in-the-dark-about-underpayment-for-almost-two-years-20170214-gucq1f.html>.

166. Adele Ferguson, ‘FWO report on Caltex is a shocker’, Australian Financial Review (5 March 2018) 40.

167. Adele Ferguson and Sarah Danckert, ‘”It’s like 7-Eleven”: claims underpayment is rife at RFG’, The Sydney Morning Herald, (online, 18 December 2017) <https://www.smh.com.au/business/companies/its-like-7eleven--claims-underpayment-is-rife-at-rfg-20171214-h04d8n.html>.

168. See, eg, Johnstone et al, above n 2, 70–3; Hardy, above n 51; Ashlea Kellner, David Peetz, Keith Townsend and Adrian Wilkinson, ‘“We are Very Focused on the Muffins”: Regulation of and Compliance with Industrial Relations in Franchises’ (2016) 58(1) Journal of Industrial Relations 25.

169. Liberal/National Coalition, The Coalition’s Policy to Protect Vulnerable Workers (May 2016).

170. See FW Act, above n 69, s 558B; reasonable steps to prevent workplace law contraventions might include action taken by the franchisor/holding company to ensure the franchisee/subsidiary had a reasonable knowledge of their obligations and arrangements for assessing the franchisee/subsidiary’s compliance or addressing complaints about alleged underpayments (s 558B(4)).

171. FW Act, above n 69, s 558A(1). For commentary on the new franchisor liability provisions, see, eg, Tess Hardy, ‘Big Brands, Big Responsibilities: A Cross-Jurisdictional Review of the Regulation of Work in Franchises’, (Conference Paper, Labour Law Research Network Conference, 25–27 June 2017).

172. Serious contraventions are those committed knowingly by the contravener, forming part of a systematic pattern of conduct: at FW Act, above n 69, s 557A(1)–(2). The maximum penalties for serious contraventions are currently A$126,000 for individuals and A$630,000 for corporations: at s 557A read in conjunction with s 539(2).

173. FW Act, above n 69, Part 5-2, Div 3, Subdiv DB.

174. Ibid s 325.

175. Australian Government, Department of Jobs and Small Business, Migrant Workers’ Taskforce (Web Page, 16 March 2018), <https://www.jobs.gov.au/migrant-workers-taskforce>.

176. Migrant Workers’ Taskforce, Chair’s Public Statement February 2018 Meeting, (Web Page) <https://www.jobs.gov.au/chair-s-public-statement-february-2018-meeting>.

177. Australian Government, Report of the Migrant Workers’ Taskforce (Report, March 2019).

178. SA Inquiry Report, above n 31, 7.

179. Ibid 9.

180. Victorian Inquiry Report, above n 18, 253–4.

181. Ibid 254.

182. The ACT Parliament conducted an inquiry into insecure work in 2017, which included investigation of labour hire abuses: see ACT Parliament, Standing Committee on Education, Employment and Youth Affairs, ‘Inquiry into Insecure Employment in the ACT’ (Discussion Paper, May 2017).

183. Although the Liberals’ 2018 election policy did not specifically address the issue, the party opposed the passage of the Bill which became the LHL Act SA: see ‘SA’s new IR Minister “implacably opposed” Labour Hire Bill’, Workplace Express (online, 28 March 2018) <https://www.workplaceexpress.com.au/>.

184. Labour Hire Licensing Repeal Bill 2018 (SA); see also ‘SA to repeal labour hire licensing laws’, Workplace Express (online, 20 September 2018) <https://www.workplaceexpress.com.au/>.

185. Emma Brown, ‘Barnaby Joyce rejects calls for national management of the labour hire industry’, ABC News, (online, 22 May 2017) <https://www.abc.net.au/news/rural/2017-05-22/barnaby-joyce-says-no-to-federal-labour-hire-control/8546820>.

186. See above n 46 and accompanying text. In addition, somewhat confusingly given Barnaby Joyce’s previous comments referred to above, then-Workplace Minister Craig Laundy indicated in mid-2018 that the Government would be examining a national labour hire registration scheme and successful reforms in the UK which ‘have effectively targeted unscrupulous firms in relevant sectors including agriculture, rather than taking a scattergun approach’: see Anna Patty, ‘“Second class citizens”: ALP pledge to lift pay for labour hire workers’, Sydney Morning Herald, (online, 16 July 2018) <https://www.smh.com.au/business/workplace/second-class-citizens-alp-pledge-to-lift-pay-for-labour-hire-workers-20180716-p4zrqp.html>.

187. Australian Government, Australian Government Response: Report of the Migrant Workers’ Taskforce (Report, March 2019).

188. Australian Labor Party, Protecting Rights at Work: Licensing Labour Hire (Fact Sheet, 2016).

189. Ibid.

190. Brendan O’Connor MP, Labor Reforms: Bringing Fairness Back to Workplaces (Speech, Per Capita Reform Series, 15 March 2018).

191. Australian Labor Party (ALP), ‘Stop Unfair Labour Hire Practices’ (Web Page) <https://www.alp.org.au/labour_hire>; see also ‘Labour hire “rip-off” site launched; Extension for Asperger’s sufferer; & more’, Workplace Express (online, 18 April 2018) <https://www.workplaceexpress.com.au/>.

192. ALP, ‘Same Job, Same Pay: Labor’s Plan to Tackle Unfair Labour Hire’ (July 2018); see also Patty, above n 186.