Stephen Howes has responded to our recent articles advocating for free movement of Pacific Australia Labour Mobility (PALM) scheme workers between employers as a provision against exploitation, arguing that “free agency is not a PALM reform worth pursuing”. In this reply, we outline an alternative case that situates the freedom to change employers – what Howes terms ‘free agency’ – as both necessary from a human rights perspective and eminently workable in practice.
Howes makes five interrelated points in considering the merits of the right to change employers and we address these in turn.
First, he argues that introducing free agency for PALM workers to switch employers is impractical for short-term workers due to time constraints.
While we believe the right to change employers is one that should be enjoyed by all workers, we also acknowledge that this is a less pressing concern in the case of short-term workers, as they are employed for no longer than nine months before returning home and deciding whether to reapply. There is an implicit option to change employers from one season to the next. That said, there is a precedent for short-term workers to have the ability to change employers under the UK’s Seasonal Worker Visa, provided the original and new employers fall under the same sponsoring “scheme operator”.
Second, Howes anticipates reduced demand for PALM workers under free agency, noting the upfront costs borne by employers and the associated expectation that those workers will not change jobs.
This reasoning doesn’t add up. PALM workers bear more cost than any other party in the labour mobility arrangement and any outstanding debt obligations to the original employer could simply be subrogated by the new employer and thereafter reclaimed through deductions, as usual. Moreover, upwards of 70 percent of PALM-long workers are employed in the meat processing sector, which has chronic labour shortages and, unlike the horticulture sector, has no recourse to labour supply options that are cheaper than PALM workers. It is hard to see demand abating.
Third, Howes argues that although free agency would create desirable pressure for employers to keep their workers happy, it would only do so if the option to leave were a credible one. He thinks it would not be, based on the difficulties faced by temporary skilled shortage workers (TSS Subclass 482 visa holders) in finding employment quickly.
We agree free agency would create powerful incentives for employers to invest in the happiness of PALM workers – including, we would add, in supporting familial accompaniment measures which are currently contingent on employer approval. While the option to change jobs would indeed need to be credible, we suggest this could be achieved by the creation of a recruitment pool for PALM workers already in-country and looking to change employers. Priority recruitment of these workers could be encouraged by government subsidies to reduce costs associated with the transfer of workers’ debt obligations, if applicable. Workers who have already paid off their debt via deductions will be cheaper and potentially more attractive for new employers.
Fourth, Howes claims that free agency would “do little to reduce exploitation” because bad employers would seek retribution against departing workers by providing negative appraisals.
As the weight of industrial relations scholarship attests to, the right to change employers is integral to the functioning of labour markets and a cornerstone safeguard against exploitation. The ability to freely sell one’s labour in an open market is largely what distinguishes capitalism from feudalism and is a foundational assumption of all neoclassical economics. No other workers in Australia are subject to the expectation that their employers have sole claim to their labour. Why should PALM workers be treated as an exception for fear of employer retribution, as Howes suggests? If reference letters are really a deal-breaking concern, omit them and require new employers to screen workers on the same basis as they would fresh applicants to the scheme.
Finally, Howes claims that the right to change employers would not stem the growth in protection visa applications by PALM workers, which he believes is largely happening for reasons other than exploitation. He argues that only a reduction in visa processing times will solve this problem.
We agree that PALM workers’ motives for seeking temporary protection visas are currently unclear due to a lack of publicly available data – the Department of Employment and Workplace Relations refuses to publish the findings of a study recently conducted by the Pacific Labour Facility. However, this is a related but distinct issue: there is nothing to say that reforms to reduce visa processing times couldn’t be implemented in tandem with free agency. In addition, free agency will almost certainly resolve the concerns of some workers seeking protection visas as a means of disengaging from the scheme. At present, PALM workers have no practical recourse but to disengage when faced with abuse; relaxing restrictions on employer-tied visas would empower workers to make those decisions within the remit of the scheme.
What, then, should be done?
At present, the restrictions imposed on long-term PALM workers are analogous to widely condemned “unfree” guest worker arrangements in places like the Persian Gulf, Singapore and Hong Kong. In fact, guest workers in Qatar have greater rights to change employers than do Pasifika and Timorese workers in Australia. Recent comments from the President of the National Farmer’s Federation signal that employers recognise that “competition and flexibility can be positive forces for both workers and employers”. By contrast, unfree labour leaves the PALM scheme open to criticism from a modern slavery perspective, undermining claims to “best practice” and potentially harming diplomatic relations across the region.
We envision an alternative “high road” approach that can underpin the sustainability of PALM. Enshrining the right to change employers is not only consistent with basic human and labour rights frameworks, but also offers Australia an opportunity to depart from the Asian guest worker model and do labour mobility better.
By creating recruitment pools for workers seeking to change employers, organised on an intra-industry or intra-state basis, the scheme could do away with labour hire middlemen and create a government-run facility through which approved employers can enlist workers already in-country. Similarly, this facility could safeguard the rights of workers seeking to switch jobs and minimise the expenses of new employers seeking to hire, effectively intervening to cover the costs required to make labour mobility work well for all parties.
Yes, this would entail additional public expenditure in administering the PALM scheme, but we consider this consistent with the scheme’s international development objectives, and justifiable as a subsidy for essential industries in rural and regional Australia.
Matt Withers and Sophia Kagan assert that the freedom for PALM workers to change their employer is a human right and therefore is not an option. In other words, they claim that the freedom to change employers is an absolute human right, enforceable regardless of the circumstances or context. But this is not the case. As the Australian Human Rights Commission notes ‘most civil and political rights are not absolute’. The same also applies to social and economic rights which are aspirational rather than enforceable.
As we know, the right to free speech does not include the right to cry fire in a crowded, enclosed space at the first sign of smoke. The public good dictates that a more measured response is needed to minimise the harm caused to others. So also with PALM workers who are mostly employed as a group.
For an individual worker to respond to the first sign of smoke (or problem) in the workplace exercising an ‘exit’ option rather than ‘voice’ is highly likely to affect the other workers in the same workplace. This affect could include creating a panic response by other workers to also leave rather than work through the problem.
The exit option by a worker or workers would also be likely to undermine the ongoing employment of other workers. This was the case during the extreme worker shortages under Covid-19. Rogue labour contractors enticed some workers to leave their approved employer by offers of cash in-hand wages and lower cost accommodation. This created a greatly increased work burden on the workers who wanted to stay with their existing employer. It also exposed the workers who left their employer to manipulation by these rogue contractors, such as withholding their passports.
How a worker defines what is unfair treatment will vary widely. It can range from a minor issue that can be resolved quickly through a mediator to a major issue that cannot be resolved easily. Also crucial is how quickly a worker decides when the matter of concern cannot be resolved at the workplace. There are mechanisms in place to respond where a problem has occurred, involving welfare officers provided by employers, and the country liaison officers.
Also available to respond to worker concerns are those providing worker support through the network operated by PALM scheme Community Connections program managed by the Salvation Army. The program involves local community members from the New South Wales Council for Pacific Communities, Pacific Island Council of Queensland and Uniting Church of Australia in Victoria and Tasmania. If the matter cannot be resolved at the workplace level, the approved employer, who may be a grower or a labour hire operator, can be asked by the authorities to allow the worker to change to another approved employer.
Withers and Kagan recommend that workers wanting to change employers should be able to join a recruitment pool for PALM workers already in-country who are looking to change employers. However, if workers are not willing to use existing support mechanisms in their workplace, are they going to put their name on a public list? If they do, will employers be willing to hire these workers from that list.
Withers and Kagan also claim a precedent exists for short-term seasonal workers in the UK to have the ability to change employers provided they are still have the same immigration sponsor. This is similar to the situation in Australia. Most seasonal workers are employed by a labour hire operator who is their approved employer and official sponsor for immigration purposes. This means they are not tied to a specific workplace and can move, with the approval of their labour hire employer. It is very much in the labour hire firm’s interest to do so because the investment they already have made in time and effort to ensure the worker is productively employed.