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What’s wrong with the Vulnerable Workers Bill?

Protecting vulnerable workers is everyone’s responsibility. Not just the unions. Not just the bosses. Not just governments of all persuasions.

Over the past two years, a spotlight has been shone on the need to do more to protect migrant workers. The community has responded, falling in behind them and their hopes for a better life on Australian soil.

In the horticulture sector, much has been said about how migrants are being co-opted, often by migrants themselves, into a cycle of exploitation and disadvantage. Where farmers pay labour providers enough to cover their wages and then some, but the middle man (or woman) fails to pass it on. All too often we see stories of wages diverted into high transport or accommodation costs, or fees for finding work.

None of this is news anymore, but industry is working hard to respond. A new scheme due for launch by mid-2017 will lift standards among the middle men and women who provide labour to farmers and growers. New rules will require them to become certified providers, demonstrating they meet certain minimum personal and professional standards.

Government is working with industry on the scheme, as an interested observer for now. We hope when the scheme is up and running, government will be our biggest champion and support our efforts to roll it out across the board. This will complement the range of other things government is doing on migrant workforce policy, from cross-agency taskforces, to helplines and templates, to increased compliance focus on migrant workers.

To support these efforts, the Government has also introduced a new Vulnerable Workers Bill into the Parliament. The Bill has at its heart a plan to protect workers who until recently, have been an easy target because of their willingness to trade minimum standards for opportunity. The National Farmers’ Federation supports this purpose and many aspects of the bill. But we don’t support it blindly, because aspects of the proposed law warrant proper scrutiny. The risk is that instead of protecting the vulnerable, it could further erode their rights.

Chiefly this concern lies in the notion that no workplace participant should have the right to silence when under investigation by the Fair Work Ombudsman. The right to silence is a fundamental freedom, and one that should only rarely be taken away. It is closely connected to the idea that we are all innocent until proven guilty, and all have the right to a defence. In a practical sense, it often means we can decide whether to get involved in an issue, or to 'dob in a mate'. Under the bill, these choices can be taken away.

Consider the case of an employee who sees their friend talking to the union when they shouldn’t be. The employee doesn’t know what they are up to, and doesn’t want to know. The Fair Work Ombudsman turns up to investigate after the media breaks a story about an ongoing workplace dispute. The employee tries to stay out of it, but the Ombudsman isn’t happy and uses its new powers to force their hand. The employee must say what they saw, and not leave anything out. If they fail in this task, they could be committing a crime. Even though they can have a lawyer present, the lawyer can’t speak on their behalf. All of a sudden their friend – who turns out to have overstayed their visa – is facing deportation. The rest of the workforce knows who dobbed her in, and won’t let them forget it. All because they happened to be in the wrong place at the wrong time.

Under the proposed new laws, every time an employer asks for advice in writing, they are creating a record that the Fair Work Ombudsman can use against them in Court. Motivations don’t matter, and there are no exceptions for trying to do the right thing. The only way to get confidential advice will be to get it from a lawyer, which will push up business costs for small businesses all around the country.

The new laws will also mean that penalties for record keeping or payslip errors double overnight. No matter that the error was unintended, or that the complexity of record keeping rules makes them some of the easiest laws in Australia to break. Higher penalties will apply generally, not only in the more serious of cases. This isn’t about protecting workers – it’s revenue raising, pure and simple. Small businesses will be the hardest hit.

The National Farmers’ Federation supports efforts to clean up our industry and deliver a fair playing field from which we can all thrive. In doing so, we hold closely to the principle of balanced, evidence-based, policy. New laws, whatever the subject matter, must be proportionate, balanced, and confined to dealing with the issues that need to be addressed. And they should protect citizens from unnecessary government intrusion. After all, we’re not living in 1984.

Sarah McKinnon is the NFF's General Manager for Workplace Relations & Legal Affairs

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