Several factors are threatening the viability of the Seasonal Worker Programme (SWP). These include the call for illegal workers in horticulture to be given the right to work via an amnesty, and the effect of the requirement for growers to pay workers overtime.
The call to give illegal workers the right to work
Publicity about a possible amnesty for illegal workers will encourage more SWP workers to leave their employers. Four National Party MPs have recently called for an amnesty for illegal migrant farm workers. A similar proposal has been made by the National Agricultural Labour Advisory Committee in its new report on a National Agricultural Workforce Strategy. The committee has recommended that the Australian Government allow a one-off regularisation of undocumented ‘AgriFood’ workers. The latter’s recommendation has received extensive media coverage (The Sydney Morning Herald, ABC, The Australian [$] and The Age).
The committee based its recommendation on advice from the United Workers Union, which in turn is based on evidence from a report by academics Joanna Howe and Ankur Singh commissioned by the union. The report’s main reason for an amnesty is that undocumented workers avoid going to health facilities and so are a major risk to the community for health reasons. This may well be the case but is providing an amnesty the best solution?
There are no simple public policy solutions that do not have adverse effects. Both the rural politicians and the expert committee have failed to see the effect their proposal would have on the SWP workforce in Australia. The National Agricultural Labour Advisory Committee’s recommendation was made without any assessment of the risks involved for SWP employers and workers.
Giving illegal workers work rights will encourage many SWP workers to abscond in response to the inducements they are offered to earn higher pay in the black economy. This has happened already with workers who, in many cases, have been helped to apply for onshore protection visas. This is a process which grants the applicant a bridging visa with, in many cases, the right to work and access to Medicare. In the six months to the end of February 2021, based on official statistics from the Department of Home Affairs, the number of applicants for onshore protection visas from the main SWP sending countries has reached 653, with applicants from Tonga, Timor-Leste and Fiji in the lead.
Evidence from media reports and the workers themselves also shows that many other SWP workers have absconded and are working illegally. As my colleague Rochelle Bailey has recently noted, based on her close contact with ni-Vanuatu workers, SWP absconding has “increased exponentially” since COVID-19. The substance of the ABC News story about former SWP workers in Bundaberg confirms this situation.
SWP workers want to earn to a higher income but lack the opportunity to do so
The second factor threatening the viability of the SWP, despite the widespread shortages of harvest workers, is the limited hours of work offered to many SWP workers. The effect of the 2019 change to the Horticulture Award requiring growers to pay overtime is that many growers are only offering SWP workers an average of 38 hours per week. These growers cannot afford to pay the overtime rate for a casual worker which is $43.40 per hour, based on 175 per cent of the ordinary casual hourly rate.
Before this change to the award, SWP workers could expect to work up to 45 or more hours per week. SWP workers, especially return workers, were used to working long hours at the peak of the harvest time to earn good money. So they are now frustrated at being told they cannot work beyond 38 hours per week.
To find out more about the effect on SWP workers, I have analysed a national survey by Growcom of 406 growers conducted between August 2019 and June 2020. Of those who responded, 118 growers employed workers under an Enterprise Agreement and 288 growers employed workers under the Horticulture Award. Responses from 280 growers showed that before the award changes, 91 per cent of growers paid casual workers for working more than 38 hours per week. After the award changes, only 15 per cent of growers were paying casual workers to work more than 38 hours per week. The overall average hours worked by casual workers went from 45.3 hours to 35.8 hours per week, a difference of 9.5 hours per week.
The difference in the average hours worked now compared with the average worked previously shows that casual workers lost an average of $235 per week, based on $24.80 per hour. This is 20 per cent of the gross income they earned on average before the award changes were introduced. In addition, SWP workers often have high accommodation costs due to SWP requirements. The result is that many SWP workers are being lured by unregistered labour contractors and growers to work illegally by offering more work hours, without tax (cash in hand) and cheaper accommodation.
Fortunately, no decision has yet been made on regularisation of undocumented workers. It is not easy to see how the overtime restriction can be wound back, but an exemption could be made for harvest time. One further choice facing the government – the union-backed proposal to require piecework to include a minimum rate of pay – is relevant to outcomes here. I will turn to this in my forthcoming blog.
Disclosure
This research was undertaken with support from the Pacific Research Program, funded by the Department of Foreign Affairs and Trade. The views are those of the author only.
If affordability and compliance are the challenging and enduring problems, I’m interested in how an exemption from paying overtime to a specific group of second class workers represents an optimal and sustainable solution.
Isn’t this just perpetuating the market problems that already exist, so that next time there’s another disruption to foreign labour supply, there’ll be a chorus of voices claiming it’s impossible to attract domestic workers.
I understood the seasonal worker program was (in principle) designed around periods of excess labour demand, not an opportunity to take advantage of relatively cheaper workers.
As an Approved Employer who has lost significant numbers of workers through absconding, I am dismayed at the government’s approach to this problem. Despite providing information about where these absconded workers are residing and working illegally … there has been virtually nothing done (one raid in Bundaberg) to round up the absconding workers and the contractors/employers who are illegally hiring them.
This makes a mockery of all the regulation, compliance and scrutiny we as AEs have to endure … but unlicensed and illegal contractors can openly poach our workers …. without any fear of being prosecuted.
The Seasonal Workers are walking away from their commitment to us and other Approved Employers as they know the Australian Govt is not doing anything to discourage the behaviour.
A crucial element to the absconding is the totally impractical introduction of the 38 hour a week (304 hours over 8 weeks) legislation. This is the most damaging, negative and unwanted piece of legislation to hit the horticulture industry.
No Seasonal Worker wants to be restricted to only 38 hours a week and no growers want to have additional financial burdens of overtime.
This is a LOSE/LOSE outcome … and is the main driver of discontent amongst Seasonal Workers.
Andrew,
Thank you for your feedback on the problem of absconding SWP workers. The absence of Border Force action until their recent activity in Bundaberg has been evident for some time. This has been despite the information about illegal poaching given to government officials from at least August 2020.
The piece is very disappointing. The call for an amnesty process well and truly pre-dates the COVID-19 pandemic, see for example https://www.farminstitute.org.au/vff-union-call-for-an-amnesty-on-workers-without-visas-as-labour-shortages-hit-home/ Undocumented workers are almost never willing to come forward and report employers engaged in illegal exploitation, as they face removal when they do so. Thus, many farm employers have an incentive to use undocumented workers over workers from the SWP limiting the penetration of the SWP into the farming sector. The ease of being able to exploit undocumented workers makes it hard for farmers complying with the law to compete on price with farmers benefiting from wage theft from undocumented workers. We have direct experience of the demand for highly exploitable, undocumented workers displacing demand for SWP workers.
Any well-designed amnesty process only lasts for a limited timeframe and will simply allow workers access to an appropriate visa (which would likely be a temporary visa with work rights). That would allow workers to report employers engaged in illegal exploitation without facing the threat of immediate removal and hopefully see action to have the employers comply with Australian law into the future.
Any SWP worker leaving their employer to work outside their visa is only likely to be returned to the employer and the program, in any well-designed amnesty. So there would be no incentive for a SWP worker to leave their current employer if a different visa outcome for them is not on offer.
Mark,
Thanks for your response, outlining the counter argument in favour of offering an amnesty to illegal workers.
The problem is that many of the workers affected will still be highly vulnerable to exploitation, regardless of their formal right to work. Absconding SWP workers and other illegal workers who have been granted bridging visas with the right to work still find they are dependent on those who have promised them work, with no choice about the lower pay and poorer living conditions they are forced to accept.
Thanks Richard, but my experience with talking to undocumented workers is that one of the key things they believe that would assist them in escaping their situations of exploitation is being able to exit their illegal status without facing immediate removal. They will speak of their experiences of exploitation that has been built into the business models of farms. For example, one group of undocumented workers talked about being paid $2.25 per box of grapes picked, while people working legally on the same farm were paid $4.50 a box. The aim of any amnesty must be to clean up the exploitative employers, not reward people who knowingly entered into illegal work arrangements (although there are plenty who were deceived into working illegally without understanding that would be the situation they would be entering into).
Our experience with workers leaving the SWP during the current period has very regularly been due to a lack of work being available and workers losing large amounts of their savings to accommodation and transport charges to employers. The lack of work has often not been the fault of approved employers, as the workers should have returned home but could not do so as their governments closed the borders. However, even now when so many farmers say they cannot find enough workers we are regularly encountering situations on the SWP where workers are not being given enough work. In some cases, workers are required to sit around for weeks with minimal work as the farmer does not want to risk not being able to find workers when they need them later. In other cases, farmers will bring in extra people and severely cut the hours of existing workers, with the existing workers telling us there has been no explanation for the change.
The reasons why workers leave approved employers on the SWP vary and there is no simple fix, like denying overtime payments to workers on the SWP. It is the kind of problem that would benefit from all stakeholders getting together and working through workable solutions for the mutual benefit of employers and the workers
Hi Mark,
You make some good points although I would argue that with minimal investigation, as you have done, those farms employing undocumented workers can be found. I assume you have reported the farm you talk about to authorities?
I think the first step is to tackle the workplaces that everyone knows about but not much gets done. Then once those workplaces have been excluded then we can look at doing other methods. Maybe setting examples from those workplaces might be enough to get others to think long and hard about what they are doing.
These workplaces that do the wrong thing are bad for all of us who are doing the correct thing. It makes us look bad and decreases our produce prices making the market harder to be in.
I think an amnesty is not the right thing to do at this point in time.
Sorry Jemma, I have not been able to report many farms to the Fair Work Ombudsman that exploit undocumented as in most cases the workers do not reveal who their employer is as they fear removal for working in breach of their visa. Most of the time I have not met workers at the farm they are working on. In other cases I have dealt with labour hire companies have been the employer and the owner has been able to use a false name so the workers have no idea who they are actually working for. The labour hire licensing laws in Victoria and Queensland have already had an impact on that situation.
Mark,
I agree with you that the issue of growers not being able to afford to pay SWP workers overtime is ‘the kind of problem that would benefit from all stakeholders getting together and working through workable solutions for the mutual benefit of employers and the workers’.
We employ seasonal workers on our farm and we also have an Enterprise Agreement. Our team enjoy the flexibility to work more than 38 hours and are often asking for more hours – usually happy to be around 40+ hours a week. The additional pressures the SWP team face, including sending some income home to support their extended family means their demand for hours is high.
Sophie,
Thank you for your feedback. Enterprise agreements do offer more flexibility in terms of ordinary hours payment. However, it is not clear how long the differences between enterprise agreements and the provisions of the Horticulture Award on overtime will remain.
Hi Sophie, do you recruit through the PNGSWCO? Or direct recruitment? I’m in Mount Hagen, WHP. My wife was directly involved in recruiting workers from our local communities, for a horticultural contracting company in New Zealand, the teams are still doing seasonal work as they have been for more than 5 years now. My wife is no longer involved in recruiting as she couldn’t cope with ongoing violence here in our community and left to live in Australia; I’m still here in Hagen and am keen to engage more of our youth in seasonal work to get them off the streets and become productive citizens.
It is crazy to think that we would encourage visa holders to become illegal workers. The government has done a lot of good things and very quickly with the pandemic and I am sure they will see through this union led crap. The government seems to be pouring money into things at the moment and I know they are capable of getting the resources and the people on the ground to stop the employment of the illegal workers at the farm gate. Slam the book on those workplaces and farms who choose to look the other way when an illegal worker steps foot onto their door. At the moment there are places for these people to work and once we get rid of that the pull to abscond and do the wrong thing will not be as great. If the want to do the right thing by the worker they can focus their attention on the workplaces.
Jemma, yes it is a good idea to focus on the unregistered labour contractors and growers who are employing workers without work rights. The absconding SWP workers affected need to know that they can return to SWP employment. This has been the case for 15 workers in Bundaberg. However, another 36 workers remain outside the SWP – we need to know more about their situation and to resolve their status so that they can return to work.
https://www.abc.net.au/news/2021-03-30/vanuatu-nationals-back-working-legally-on-bundaberg-farms/100036232
+38 hr @ pick rates vs 38hr award. Which gives the higher overall pay level?
Marks Smith
Thanks for your comment – please see my other blog on piecework.
https://devpolicy.org/piecework-in-horticulture-should-there-be-a-floor-20210406-3/