On 4 May 2015, Four Corners, an Australian investigative journalism program, broadcasted a report titled "Slaving Away", uncovering the exploitation of temporary labour within Australia's agricultural and food processing sector (the "Report"). The Report examined the conduct of a number of labour 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 and Woolworths.

The Report revealed that some labour 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 labour laws and lack of competent English skills. The labour 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 labour 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 labour laws on the part of the labour hire companies. However, it is also possible that the farmers who engage noncomplying labour hire companies, and the supermarkets acquiring the services of such labour through labour 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.

A particular farmer or supermarket could be caught by section 550 depending on their involvement in the labour hire arrangements. For example, if the supermarket had the capacity to influence the conduct of the labour 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 labour hire agreement is so low that it could not conceivably allow the labour hire company to pay workers the minimum award wage, that farmer may also face liability under section 550.

Lessons for Employers

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 the expanding reach of Australian labour law generally, there is potential for such action to be brought against numerous actors in relation to the exploitation of temporary labour in the Australian agricultural and food processing sector.

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