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Work rights on the harvest trail. A speech to growers at Bowen and Ayr, Queensland, 20 and 21 June 2001



NFF Speech


Work Rights on the Harvest Trail


Richard Calver, Director Industrial Relations, NFF  

A speech to growers at Bowen and Ayr, Queensland


20 and 21 June 2001






NFF is participating in the trial of a new tax file number declaration form (TFN) for the harvest trail because it is one of the many ways that the Government has agreed to work with Australia' farmers to make proposed new immigration laws more efficient. I will leave discussion of the detail of the trial today to others. I must, however, emphasise that this process is about much more than a form. It is about the Government agreeing to assess the impact of proposed laws on rural employers. It is about understanding that a whole of Government approach must be used in assessing the impact of new laws on rural and regional Australia. And let there be no mistake, the impact of new laws about illegal workers have the potential to cause friction and disruption in the horticultural industries. That is why, at the outset, we commend the Minister for Immigration and Multicultural Affairs, for having the foresight to agree to a trial of a form that foreshadows a substantial change in the way horticultural employers would be required to conduct their businesses.


A Limited History of the Proposals


What has occurred in the last two years is very important and I just want to run through the recent history of this issue and where matters sit politically. The Government has for some time been determined to increase the sanctions associated with engaging illegal workers. In March 1999, the Minister announced a major review of the subject. The Review of Illegal Workers2 reported in November 1999. NFF made two submissions to the inquiry. We urged the Government to ensure that people who deliberately flout the system and who smuggle people into this country on an organised basis should have the book thrown at them. Send them to jail. However, the consequences of, say, employing a working holiday maker whose visa had expired but who was overstaying for a week should attract a relatively minor penalty because society is little damaged.


In addition, we emphasised the importance of recognising the difficulties that confront horticulturists in handling the sheer numbers of itinerant, casual workers during a harvest period. Loading up growers with a range of new, complex administrative tasks is just not feasible. Work rights along the harvest trail are difficult to check because of the nature of the harvesting task and because of the high administrative work load already placed on growers by Australia's complex industrial relations and taxation systems. The immigration system is hardly simple and the details of visas are difficult to understand.


Add to this the horticultural industry's rapid growth, with labour and skills shortages as major constraints on an even greater pace of growth, and you have a volatile mix. Total employment in horticulture is estimated at about 100,000, up about 20% on 1995. 3 Despite this increase in employment, I do not need to remind this audience of the difficulties in attracting labour. One of the ways that horticulturists have dealt with the issue of labour shortages has been through engaging working holidaymakers, young people from 11 different countries. Government has acknowledged the beneficial role of working holidaymakers both to tourism, cultural diversity and the harvest industries.4 The number of Working Holiday visas granted has increased gradually in recent years, from around 35 000 in 1994-95 to almost 75 000 in 1999-2000.5


The fact that growers regularly engage a host of young people from overseas who are generally eager and efficient workers adds to the difficulties of growers in identifying those people who might have an inappropriate visa. It gets them used to engaging people from overseas, and who can work here quite legally.


However, the Review of Illegal Workers came up with a range of recommendations that NFF thinks just won’t work in the horticulture industry. The Review made recommendations about a system of sanctions for employers that we remain opposed to and which, we believe, are wrongly conceived. The Government, however, accepted the recommendations of the Review in December 1999.


The sanctions that were touched upon by the Review and have been expanded in detail subsequently by the Department are designed to reflect a range of offences. They are designed to stop the people smugglers mentioned earlier but they would also be highly relevant for small employers who might be issued with a “parking fine” or infringement notice for having an illegal worker present on their property. The sanctions are reduced to "tiers":


Tier One a fault offence prosecuted before a court;


Tier Two a strict liability offence prosecuted before a court;


Tier Three an infringement penalty for a lower level offence, which, if unpaid or is contested, converts to a prosecution for a strict liability offence under Tier Two.


The tier two and tier three levels concern exactly the same offences, a strict liability offence with a statutory defence. The difference is not in fact between offences but in the sanctions with the lowest level being different only because it is invoked through the issue of an infringement notice. Strict liability is the problem. Strict liability means liability without fault. When a prosecution is launched that means the Government does not need to prove the intention, knowledge or negligence of an employer. They could just point to the fact that an illegal worker was working on the property. Time expired. Here's your parking fine!6


At tier 3 (confusingly, the lowest level of offence), instead of being prosecuted, an offender would be given the choice of paying an infringement penalty. If an employer was, however, prosecuted the offence would be the same as tier two. In this regard, NFF holds a legal opinion that the proposed infringement notice provisions would probably be invalid on the grounds that they would be inconsistent with the Constitution, in that they would provide for penalties without conviction by a court. The Department has responded to that argument. It has rejected the legal opinion. However, it has said that as a result of the consultations that have been undertaken between Government and industry for some time, there will be a change to the proposed law. Where growers are issued with the infringement notice, it will be able to be challenged in a Magistrate's Court. If the court decides that the infringement notice was rightly issued, the same maximum penalty that would otherwise have applied will apply, that is $1,100 for an individual or $5,500 for a body corporate.


The penalties proposed to be associated with a tier one offence are high at a maximum of $13,000 for an individual and $66,000 for a body corporate and/or 2 years imprisonment. Tier two would have previously attracted a maximum penalty of $5,500 for an individual and $27,500 for a body corporate. But, as I said, the tier one penalty in lieu of prosecution and on prosecution will now be $1,100 for an individual and $5,500 for a body corporate


Despite that concession, we believe that this harsh regime is an overreaction. Certainly, the tier one offence levels have attracted very fierce comments from growers. We act for growers and we want an alternative criminal regime. NFF does not oppose the creation of harsher criminal penalties for those who knowingly employ or engage an illegal worker. Yes, stop the people smugglers. We suggest the creation of a specific offence which reads as follows:


"An owner of a business who knowingly engages a non-citizen without work rights to work for the business is guilty of an offence".


This offence could attract harsh penalties. But it would not be a strict liability offence. In other words, the prosecution would need to prove the mental element (the intent of the offender), as is normal with criminal matters.


NFF wishes to make it clear that we support a stricter offence regime based on punishing those who knowingly engage and exploit illegal workers. We reject the view that growers as employers have traditionally been willing to exploit the labour of illegal workers and are therefore now anxious not to have sanctions imposed. Admittedly, we need working holiday makers to assist with harvest but that is a relationship that benefits everyone.


The Minister has put the proposed criminal regime on hold. We thank him for this period of consultation and for his willingness to listen. The Minister and the Department have consulted widely and the trial of this form is part of that continuing consultation. As well, we understand that part of the Government's hesitation comes from the conflicting advice it received from another Government inquiry, an inquiry into the Harvest Trail.7


NFF supports the recommendations of the report entitled Harvesting Australia in its entirety. The recommendations about the use of illegal labour are loaded with common sense. Recommendation 10.19 is in three parts as follows:


10.19 (a) In seeking to limit the use of illegal labour in Australia, the Government does not take actions that would affect the economic viability of growers.


(b) In particular, DIMA does not require growers to request itinerant workers to provide a passport or birth certificate before commencing work. Instead DIMA consider legislation to impose significant penalties on employers who knowingly or recklessly employ a non citizen without work rights.


(c) To assist in excluding illegal workers from the harvest industry over the long term, the horticultural industry encourage organizations issuing harvest labour skills cards, to not issue them to illegal workers. (This recommendation is linked to recommendation 5.29).


We endorse these recommendations. Government has implemented some of the recommendations in the Report but has not formally responded in full to the Report.


Why this Trial ?


Recommendation 10.19(b) encapsulates NFF's view. Why are we then supporting this trial of a form that asks growers whether or not they have sighted documents such as a passport or a birth certificate? That is because the Government has not backed down on its proposals to introduce the criminal regime that I have shortly outlined. It has not agreed to accept the Harvest Trail solution. So, in assessing whether or not the harsher regime will be possible to implement, we have had discussions with Government. Government consulted growers.


Overwhelmingly, growers told Government not to introduce a comprehensive new form recommended by its 1999 Review team that was to be called a Work Rights Declaration Form and was to have been retained for 5 years and would have been a very real burden in terms of administration. Instead, again, we have focussed upon the Harvest Trail Report’s recommendations and ATO and the Department have made a suggestion about a new form. The new TFN for the Harvest Trail not only collects tax information but asks about employees’ work rights. This proposal derives from but is slightly different to the Harvest Trail Report. For example, Recommendations 7.35 and 7.36 had this to say about the then Employment Declaration Form, now the TFN:


7.35 The ATO, in consultation with DIMA, review the possibility of providing WHMs with a tax file number at the same time that they are issued their working visa, with the number incorporated into the visa and clearly visible.


7.36 The ATO produce a simplified version of the Employment declaration form for harvest workers which restricts the information required to name, postal address, tax file number, bank account and Australian residential status.


Thus the form under trial is not exactly in terms of these recommendations. But it is a major step forward and it deserves our attention.




Your participation in the trial will help us to cement our certainty that the Harvest Trail report got it right and you will help to further add fuel to the flames licking around the Government's prior proposals. Your co-operation will help advance the recommendations in the Harvest Trail report so that work rights along the Harvest Trail aren’t seen as a burden to the growers' task but are part of a concerted effort to jail people smugglers. Co-operation has produced results so far and I urge you to lend support to this trial. Co-operation has produced results, so let it continue.


Copyright © 2001 National Farmers’ Federation. All Rights Reserved.