FAIR WORK ACT

Adjourned debate on motion of Hon. R.D. Lawson:

That the regulations under the Fair Work Act 1994, concerning clothing outworkers, made on 18 October 2007, and laid on the table of this council on 23 October 2007, be disallowed.

(Continued from 2 April 2008. Page 2242.)

The Hon. A.L. EVANS (16:30): I rise to speak on this important issue. I recall the debate that occurred in 2004 and early 2005 when the Industrial Law Reform (Fair Work) Bill was debated and the lobbying I received concerning outworkers. The intention at that time was for there to be regulations specific to outworkers, and it is amazing now that in late April 2008 we still do not have regulations and those that we have we are being asked to disallow. I can therefore understand the desperation and frustration of some people involved in the regulation-making process finally to see some regulations made.

We have received submissions from a number of groups and individuals, but perhaps the one I find most interesting is a submission that the Office of the Employee Ombudsman made. It is unusual in my experience for the Ombudsman to lobby on a bill, and I feel this carries considerable weight in this debate. We could argue whether it is appropriate, but it is a fact that Mr Brennan has lobbied us to oppose the disallowance, so this is a very important matter.

Family First has been told all sorts of things about these regulations. We are told on the one hand by the regulation supporters that they will have minimal impact upon retailers and manufacturers. Currently the Australian Retail Association supports the code. Furthermore, the award and contractual requirements for outworkers are such that these minimal standards impose no additional burden on business. On the other hand, some of the regulation opponents claim that outworkers do not exist or that they are well looked after and do not need this code of practice. The same supporters claim that more time and consultation is required, but as I said from the outset it is now more than three years since we passed the bill that created the act under which these regulations have been produced.

Family First is satisfied that outworkers are being exploited in South Australia. Our consultation on the original bill and revisited during this debate demonstrates and satisfies us that this is the case. We are concerned about the standover tactics used by those who organise outworkers to produce goods such as clothing and the substantial cash economy that can exist in this industry. Outwork tends to happen in people's homes and therefore affects family life arguably more than work at different premises. Sometimes people providing the outwork visit the family home looking for the finished product or offering more work. The lines of work and family are distinctly blurred for outworkers, and an unhealthy working environment makes for an unhealthy family environment, and potentially a situation where the family is intimidated from saying anything against the outwork provider because, to use a phrase, 'it cuts a bit too close to home'.

Family First stands up for those without a voice, and in circumstances of a power imbalance that can occur in this industry there is a strong risk that there will be people without a voice. Outworkers, whether exploited or not, comprise a significant number in South Australia. Family First understands that, Australia wide in 2005, ABS data showed that there were 724,000 outworkers either full or part-time, with approximately 50,000 in full-time employment. South Australia's per capita share of that is significant.

The ATO data was different and suggests a lesser figure, but when you consider the cash economy I was referring to it is little wonder that there are fewer outworkers on the ATO books than on the ABS books. These regulations impose minimal standards for outworkers for the outwork industry. Family First is satisfied that these minimal standards will not be a huge impost on business. We are not giving outworkers—some significant part of them being new arrivals to our country—a fair go if we fail to provide minimal protections for them and their families. Family First supports the regulations and therefore opposes the disallowance.

The Hon. SANDRA KANCK (16:35): In moving the disallowance of these regulations the opposition is effectively saying, whether intentionally or not, that it is okay for outworkers—usually the newest wave of migrants in this state—to make clothes for us to wear at a pittance and at great sacrifice to themselves, and the Democrats are not okay with that. So often these people are marginalised. They have come to Australia penniless as refugees. They are people at a disadvantage to begin with because they do not speak English, do not belong to a union and some will have fled from countries where union activity is not allowed. Such people are unrepresented and therefore can be pushed around and hoodwinked. Around 99 per cent of them are women, and presently they are paid for their piecework around $3 to $4 a hour. That is less than a high school student gets for babysitting. For $3 or $4 an hour they may have to enlist the help of their children to finish their quota of clothes in time to hand them over to the person who has farmed it out to them. The question that arises for me is how close we come to child slavery in this state if we allow this to happen.

The nub of the Opposition's argument is that retailers will have the inconvenience of having to supply quarterly returns to show the source of some of their products. They will have to disclose information about the contract for the production of the clothes they sell. I point out that, these regulations, are a move towards a nationally consistent position. South Australian businesses will not be disadvantaged by it relative to other states.

The only businesses that might be disadvantaged will be those that have been involved in the exploitation of these women, and the outcome of that is that those who are dedicated followers of fashion might have to pay a few more dollars each for the garments that they choose to buy. It means that the good guys—in this case, the ones who have not been exploiting these women and may have been at a competitive disadvantage as a consequence—will now be located on that geographical location much vaunted by the Liberals, that is, the level playing field.

The mover of this motion (Hon. Robert Lawson) quoted from a letter from Business SA in which the Chief Executive, Peter Vaughan, claimed that there has been 'inadequate consideration and assessment of the need and impact of the introduction of these regulations'. That is very peculiar. Stephen Brennan, the Employee Ombudsman, came and spoke to me and he said that Business SA was on the outwork group that was responsible for the recommendations that have led to these regulations.

I will read out a list of who was on this group: Bill Bourke from SafeWork SA; Stephen Brennan from the Office of the Employee Ombudsman; Lucy D'Aloia from WorkCover; Sandra Dann from the Working Women's Centre SA Inc and contact for Fair Wear; Patricia Donovan from the Dale Street Women's Health Centre; David Frith from Business SA (so, it was represented); Michelle Hogan from SafeWork SA; Mark Hulme from SafeWork SA; Michelle Gilbert from the Office of the Employee Ombudsman; Ros Gumbys from the Working Women's Centre; Janet Giles from SA Unions; Michael Lonie from the Australian Retailers Association (and one might consider that group to be fairly representative of a retailer's point of view); Igor Nossar from the Textile Clothing and Footwear Union of Australia; Brenda Rolls from the Workplace Ombudsman's office; and Yvonna Zurawska from the Migrant Women's Lobby Group.

So, quite clearly, Business SA was a part of the group. Stephen Brennan told me that, within the meetings of the group, at no stage did Business SA indicate any opposition—in fact, it did not even indicate that it had problems with the whole issue.

I think it is also worth while looking at the pamphlet that has come out called New Clothing Outworker Code of Practice. It is produced by the government of South Australia, dated 2007, and it has logos of the Government of South Australia; SafeWork SA; Business SA, the hive of industry; SA Unions; the Working Women's Centre SA Inc.; the Australian Retailers Association; TCFUA; and the Office of the Employee Ombudsman. The pamphlet states:

This brochure is a joint initiative between SafeWork SA, the Working Women's Centre, the Office of the Employee Ombudsman, the Dale Street Women's Health Centre, the Australian Retailers Association, the Textile, Clothing and Footwear Union of Australia, SA Unions and Business SA.

It further states:

The Code of Practice has been made as a regulation under Section 99C of the Fair Work Act 1994 and promotes the fair treatment of outworkers consistent with best practice in the clothing industry. The Code of Practice applies to persons engaging in manufacturing, distribution and retailing of clothing products supplied in South Australia.

Under the Code of Practice, clothing retailers, suppliers and contractors are now required to provide and maintain records relating to the engagement of outworkers, and show how clothing has been produced and supplied within South Australia.

The Clothing Outworker Code of Practice is closely aligned with the Fair Wear Campaign, which aims to eliminate the exploitation of outworkers in the Australian clothing industry, and encourage all Australians to think about where and how their clothing is produced.

I remind members that it appears to have been signed off by Business SA and also the Australian Retailers Association, unless those logos have been used without their permission. Business SA might want to advise the parliament, through the Hon. Robert Lawson, whether that is the case.

I have not received any communication supporting what the Liberals are doing. However, I have received opposition from Uniting Care Wesley, the International Women's Day Collective, the Office of the Employee Ombudsman, the Working Women's Centre, the Fair Wear campaign, the Australian Services Union and assorted individuals. One of the individuals who wrote was a woman by the name of Christine Gates, who said that she was the outwork project officer at Dale Street Women's Health Centre between 1995 and 1998, and I will read a little of what she has to say about her time there. She said:

I worked closely with a Vietnamese project worker who talked to many outworkers in her community. They shared with her their stories of long hours of work, of children helping parents so they could meet impossibly short deadlines, of respiratory problems associated with working with materials in poorly ventilated and hot rooms and poor light. She found that some outworkers were owed up to $3,000 in wages that contractors refused to pay. I talked with an Australian Anglo woman sewing pillowslips in batches of 5,000 for as little as $40 a day with extremely short turnaround times. The manufacturer denied publicly that they used outworkers. I talked with a Filipino outworker sewing school uniforms who asked for 20 cents an item more. She was then considered a troublemaker and received no more work. This is the tip of the iceberg.

From my experience I believe the school uniform industry and bridal industry has extensive exploitation of outworkers. As a project officer in a community health service I was able to get closer to the front line of outwork than most yet I only scratched the surface. The more I learnt the bigger the problems and issues became. This SA Outworker Code of Practice offers some much needed legislative protection for sewing outworkers. It recognises their plight and offers some legitimate systemic processes to address the exploitation of outworkers and associated problems, including health issues. The Outworkers Code of Practice has been working well in New South Wales and Victoria for a number of years. By establishing the Code in South Australia it also sends a clear message to the wider community that this form of exploitation is unacceptable in Australia.

In his speech, the Hon. Robert Lawson referred to his meeting with Stephen Brennan, the Employee Ombudsman, and was somewhat scathing (as I read it) that Mr Brennan was not able to give exact figures for outworkers in South Australia and that he had referred only to an academic study indicating that there were 300,000 outworkers across Australia. It takes a little bit of mathematics to work out that, on a pro rata basis, probably about 25,000 of those would be in South Australia, and I wonder what difference the numbers actually make. To my mind, 25,000 is 25,000 too many. I wonder whether the Hon. Robert Lawson thinks that there is an acceptable figure.

It is difficult to get exact figures, because these women are part of a hidden workforce. The very reason we cannot get such hard data is the same reason they are able to be exploited: they are migrants, and many of them come from a non-English speaking background. They face the strangeness of a new country, and for refugees that might even lead to fear. So, they choose to stay at home. They lack knowledge about and access to child care, and that is likely to exacerbate this so that, when someone offers them work at home, it would seem like a solution.

Outworkers also may not reveal their job status because they are getting cash in hand without paying tax, and they may fear that the Australian Tax Office could descend on them. Alternatively, some of them are in receipt of Centrelink payments, and they are fearful that this could result in some sort of reduction in their Centrelink payments or even termination of those payments.

So, these sorts of facts ensure that there will be an under-reporting of numbers and that these women will effectively hide what they are doing so that no-one knows. So, it is not surprising that there are not the figures available.

In terms of the garments that are produced using outworkers, the sorts of activities that would be covered by these regulations include hand knitting, machine knitting and machining (and by that I mean the use of sewing machines) for the complete assembly of garments, embroidery and smocking.

Outworkers are often lied to by the people who are providing them with the work and told that they are subcontractors. So, in part because they are not declaring the income they receive, they are also not able to claim their home, where they are working, as a workplace, which means that they are not able to claim power and lighting, the depreciation of their sewing machines or knitting machines, which, by the way, they would have supplied themselves without cost to the retailer who is selling the products; nor would they be able to claim the cost of travel involved in either the collection of the materials or the delivery of the finished article. The Hon. Mr Lawson said:

It has not been demonstrated that these regulations are necessary. No study has been undertaken and no evidence has been presented to suggest that there is a serious problem with outworkers in this state.

Well, some studies have been undertaken and, although it was in 1989, I refer to the study done by the Working Women's Centre. It is very hard to collect this information, and this particular study that was done in 1989 by the Working Women's Centre found a difficulty in being able to contact the women of non-English speaking backgrounds. Nevertheless, it is worthwhile hearing about what was happening back in 1989, because I suspect the differences today would be minimal. The report was done by Jane Tassie on behalf of the Working Women's Centre, and it is called 'Out of sight, out of mind: Outworkers in South Australia', which I think is a very apt description of this situation: it is out of sight.

There are many things I could quote from this study, because it is about 80 pages in length. However, I will quote only from mostly anecdotal information that records the experience of some of these workers. One of the problems these outworkers have is that, because they are on their own, they have no negotiating power. The report states:

Judith, machinist: They expected me to work for 12 days straight, nights and weekends leading up to Christmas—

I note, of course, many of us would have been attending Christmas parties at that time—

I said no and the boss threw my pay at me and said she could get plenty more to do the work.

Mary, knitter: I went in to take in the last one and she said, 'Can you do them a bit faster next time.' My husband said I was being taken for a ride. The other day I rang another company. They wanted me to come and see them to do a test. I asked her could she give me an idea of what they pay. She wouldn't even tell me what I could expect...

Sally, knitter: They didn't want to pay me when one [jumper] went missing in the post. I threatened to contact the Women's Weekly and then I quit.

Ingrid, knitter: The jumpers take so much concentration. If you make a mistake they don't pay you. They tell you to do it again or take $5 off. That's a lot when you are only being paid $20-$30.

Jo, knitter: Sometimes they wouldn't tell you how much you'd get until you finished and returned the garment. Then they'd make up all kinds of excuses to knock money off. For example they might say your sewing up wasn't good enough. It should be looked into. My father said, 'I thought slave labour should have finished in Australia'. But it's hard because my husband's $1 above the income supplement level. We need all we can get....

Judith, machinist: Sometimes there's so much work you can't cope. And other times she says there's nothing for you this week.

Of course, that last quote indicates the problem that, effectively, in terms of income, the women do not know whether they are going to have enough money to support their families. Jane Tassie's report goes on:

Outworkers lack the negotiating power to determine how much work they will take on. If they question the amount of work they are required to do, they risk losing their work.

The report goes on:

Shirley, machinist: It takes me 1½ hours to do one piece. They told me it should take me 39 minutes, and I got a distinction in speed sewing.

Judith, machinist: They use a really shoddy sample garment to set rates and, of course, it would take longer to sew than the sample.

Brenda, machinist: They told me other workers could sew faster than me, so why couldn't I keep up.

In the report, Jane Tassie says:

It would appear that outwork gives women the freedom and flexibility to do two jobs, one for no pay and the other for little pay.

I think that is a very quotable quote. There is the problem of what women ultimately are paid compared to what these products retail at. Judith, the machinist, says:

I made lingerie for $2.50 and it sold for $75. No wonder the boss drives a Mercedes and has built a home in—

and that is struck out—

...using imported stone!

Jane, a knitter, says:

I designed and graphed the jumper and then knitted it. He gave me $30. I saw it in his shop for $500. How do you think I felt?

And Sue, a knitter, says:

She sells the jumpers for about $350 to $400 and puts her costs down as $100 to $150. It is not true. She'd get yarn wholesale so the real cost would be much less. And she uses cheap wool. I looked into starting my own business so I looked at the wholesale rates. I knitted a jumper for—

and the name is crossed out—

...once—all mohair and very complicated. I got $50 and they were selling it for $500 at—

and the name of the shop is crossed out—

...It was lots of work and it was not worth it.

Jenny says:

The employers are feathering their nests on a whole lot of poor people. They brag about their overseas contracts to supply top stores.

One of the points that are raised by Jane Tassie is the issue of the stress and exhaustion that these workers suffer. I will quote Jane:

Stress and exhaustion were common problems for all groups of respondents. The stress of working in isolation, of carrying the double burden of their paid and domestic work, and of having very little control over any part of their working conditions, was evident from their comments.

Here are just a few more of those comments. From Helen, a knitter:

I've had headaches and stress, especially when I have to meet a deadline. She keeps ringing me up about when I'm going to finish. It's really annoying.

Jane, a knitter, says:

I have RSI in my shoulder and back—from looking at a graph continually. You have to keep your head in the same place. The mohair causes coughing and it comes up in your saliva. I've also had eyestrain.

Jo, a knitter, says:

I lost weight, my hair started to fall out. It was very stressful meeting deadlines. I got a sore back, headaches and had to get glasses. I'd sit knitting and thinking about how much money I might be going to get paid, knowing it wouldn't be enough.

Jane Tassie, the author, says:

It appeared that employers had little concern to the occupational health and safety of their workers. This was confirmed when the project officer contacted the office of a large employer of home knitters and asked if work was available. She asked what would happen if she became ill or, for example, developed RSI as a result of her employment. She was told that she would not be considered to be an employee, and that she wouldn't get RSI. After a hesitation, the following comment was made: 'Well, to be honest with you, we do have some ladies coming in here complaining of sore shoulders and arms, but that's just arthritis because they're old. We tell them to have a rest for a while.

I suspect that the retailers that the Hon. Mr Lawson has gone in to bat for will not suffer the same degree of stress and exhaustion as these workers do when they have to lodge a quarterly return about the source of clothes they sell.

When speaking on 27 February, the Hon. Mr Lawson responded to an interjection from me asking what was a fair rate of pay for them. He said, 'The rate of pay is that rate of pay under the award.' His next sentence is very telling: 'Whether or not they comply with it is another question.' Perhaps he has actually gone to the nub of the problem here. The Hon. Robert Lawson is underestimating the hidden nature of this work. It is so easy for these workers to disappear under the radar.

A short time later in that same speech, he said:

If you want to protect outworkers, you do it by the normal method; that is, pass a law which requires the employers to comply with the law and to meet his obligations and, if he does not, he will be prosecuted.

I would say to him: if only life were that simple. Because this is such a hidden form of employment and exploitation, it is not easy for the inspectors even to find where these women are working. It perplexes me that the Liberals are attempting to disallow these regulations.

I quote from a document that was published under the auspices of the Minister for the Status of Women, the Hon. Diana Laidlaw. It is the 'The Women’s Statement 1996—Focus on Women', which shows that she had a concern about outworkers. Under the heading 'Outworkers', it says:

The Women's Outwork project targets women who work from home for an employer or contractor. Outwork is growing—

I hope the Hon. Mr Lawson is aware of that—

and is often performed by women, with a significant number being of diverse cultural and linguistic backgrounds. With the support of funding from WorkCover, Dale Street Women's Health Centre is working to improve conditions for women by developing education, training and information kits for outworkers, employers, community workers, doctors and training providers. Occupational health and safety aspects of outwork are key issues being addressed by the project.

So, the Hon. Diana Laidlaw, when she was Minister for the Status of Women, recognised that there was a problem associated with outwork that apparently the Hon. Mr Lawson does not recognise. By creating transparency, these regulations will assist the initiatives to ensure that our workers are fairly paid and treated.

As I conclude, I quote article 23(1) of the Universal Declaration Of Human Rights, to which Australia is a signatory:

Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

In case the important message does not get through by quoting the whole sentence, I will put it into a shorter form: everyone has the right to just and favourable conditions of work. All that these women—outworkers—are asking for is just and favourable conditions of work. The Democrats will not agree to this move by the opposition to create a loophole which would allow some retailers to get away from meeting that obligation.

Debate adjourned on motion of Hon. I.K. Hunter.