BYTE TWO: 88 Days lets find some solutions

June 25th, 2018 | | industry

The mainstream media has recently cast negative attention on the 88 day visa program, in which working holiday visa holders and work and holiday visa holders are required to complete 88 days of manual labour in rural areas to obtain a second year of their visa.  Recently on the news, the 88 days have been associated with sexual harassment, gross underpayment, and in extreme cases even death.  It’s fairly difficult to find work on a farm in a new and unfamiliar area, so young migrants rely on labour hire contractors, which can put them in a vulnerable position. Migrants, international students and seasonal workers have all experienced similar issues. The only way to correct the problem is ‘legislation’, be it what is in place or new, be it state or federal. The ball is now firmly in the governments court.

State Legislation

After the recent storm of complaints surrounding the exploitation of migrant workers and labour hire workers in Queensland, the Queensland Parliament passed the Labour Hire Licensing Scheme 2017 on 8 September 2017, it commenced on 18 April of this year. The Queensland scheme requires that all labour hire services be licensed, after passing a “fit and proper person” test, which is to be retaken every year. Penalties, including imprisonment, are enforced if service is unlicensed, an arrangement is made with an unlicensed service, and/or an unlicensed service goes unreported.

The South Australia Parliament and the Victoria Parliament had shortly followed suit. In South Australia, the Labour Hire Licensing Bill had commenced on 1 March 2018, with slightly different points: Licenses are granted on a permanent basis. The „fit and proper” test is more detailed and required for less people in South Australia.

Most recently, the Labour Hire Licensing Bill 2017 in Victoria had recently been passed through the Legislative Council on 19 June–potentially a stepping stone towards a National Scheme. Julian Ledger, CEO of YHA, says „[although] we would prefer to see a national licensing system, things get worked out on a state-by-state basis.”

Operators Want Federal Action

The schemes have raised backlash from farmers and growers, like the Victorian Farmers Federation. The VFF had expressed concerns that the scheme will shrug off the issues of worker exploitation, so they call on Upper House MPs to protect Victorian horticulture against an overbearing government. Emma Germano, Victorian Horticulture President (pictured right), believes the bill is “another layer of bureaucracy” and wants “to see the enforcement of current laws not another level of expensive bureaucracy that will have very little power.” Germano believes the scheme will exacerbate issues for farmers, like the high unemployment rate on small farms and hefty fines after dodgy labour hire contractors are caught. Both labour hire contractors and hosts who affiliate with them may be fined for complying with unlicensed operators.

In other respects, Rachel Mackenzie, chief advocate of GrowCom, an industry body for horticulture industry in Queensland, remarks on the legislation: “Provided that they’re adequately enforced and provided that they don’t push good labour hire companies out of business … it’s a good thing to have better oversight over labour hire companies.” Germano agrees that there should be an overarching approach to the issues of labour hire and exploitation. „We don’t want to see different legislations for each state, given that the horticulture industry is federal,” Germano says.

Though Queensland and Victoria have been slammed the hardest for its exploitation of migrant workers and labour hire issues, this is a nationwide issue that affects all corners of Australia. Robert Hardie, the policy director for cropping and horticulture at New South Wales Farmers Association, cannot recall bad practices in NSW, but voices his opinion as a representative of the horticulture sector: that legislations undertaken by a commonwealth government “continue to lobby for very real needs of our farmers … And make sure [legislators] don’t make knee-jerk decisions in the horticulture industry that prevents farmers to be able to produce the food that we all rely on.”

Deeper Issues Embedded in Visa Program

Mr Ledger also calls on supermarkets to take responsibility for their supply chains: “These days, retailers, like H&M, take responsibility for their supply chain. They don’t just say ‘we don’t care where it comes from, we just buy it, they take some responsibility for the conditions and the workers and where it comes from.’ Same thing should apply to harvest and fruit vegetables, we think.” As Hardie expresses, we all rely on farm food, so it’s also our own responsibility to understand where the food we eat comes from and the conditions of the farm and migrant treatment.

Essentially, there must be a multi-faceted solution for the multi-faceted issues surrounding the 88 days program. Will we see remaining issues in labour hire in Queensland, South Australia, and now Victoria after the labour hire schemes are put into practice, as Emma Germano insists? Most operators will even tell you the issues stem from the working holiday visa itself. Germano claims a viable solution would be to ensure that we’ve got enough people with working rights, so the Federation calls for an amnesty of people who don’t have working rights and to put them on an agricultural visa. “Unless there’s a holistic approach, you’re going to disrupt the system when someone doesn’t have working rights or when someone desperately wants to get their 88 days signed off,” Germano says.

Robert Hardie agrees that an agricultural visa, proposed by the National Farmers Federation, should be introduced to migrants who may come to Australia to undertake agriculture, while studying. Rachel Mackenzie also brings to attention the illegal habit of young migrants seeking to work in agriculture on student visas, which allows them to only work for up to 20 hours a week. “By being on the wrong kind of visa, they are complicit in their own exploitation, so we have situations where workers are demanding to be paid in cash because they want to stay under the radar”, Mackenzie points out.

Be it an agriculture visa, a student visa, the seasonal workers program or a working holiday visa, farmers and growers rely on any and all migrant workers to work on their farms as much as we rely on these farms to produce the fruit and vegetables we buy from the supermarket. We should be more respectful and threat them as we wish our own treated in their country. Because there is a lack of local labourers the government must act quickly to combat the decline in WHV immigrants. Clearly, the cry for federal aid from the horticulture industry is strong.

Fair Work, Fair Treatment & Fair Farms

The Fair Work Ombudsman (FWO), for one, has an international work division, and checks in on the fair treatment of all migrant workers. The FWO is working with GrowCom to launch the Fair Farms Initiative, in which farmers will be educated on what their obligations to their workers are. Though Peter McMahon of Cambrai Backpackers Hostel & Tours in Maffra, Victoria, who has been instrumental in facilitating the 88 days program between backpackers and the farming community in his area for many years, calls for the Fair Work Ombudsman to have more field officers going around, because every area is different.  A call for more federal funding and engagement.

The Fair Farms Initiative is still working through a certification scheme, so that good growers can differentiate themselves from those who are doing the wrong thing, as to not hinder the reputation of growers. It is crucial to note that the 88 days program, and the relationship between growers and migrant workers, „overall, is a success, [though] there are some difficulties,” Julian Ledger points out.

In conclusion, we (government, commentators, employers and employees) all agree that dodgy farmers and unlawful contractors are intolerable. One way or another this has to be remedied. But is the varying labour hire schemes in some states a viable remedy? Most commentatores, like Emma Germano, Rachel Mackenzie and Julian Ledger, will tell you it is a disjointed legislative framework that will lead to inequity. They may not agree with each other on every possible solution, but they will tell you it is crucial to come together as a country and create an overall scheme that benefits all sectors that partake in the 88 day and other rural work programs.

Written by Samantha Melamed


One Response

  1. Macca says:

    Thank you Samantha, so much for your article. Let’s hope the backpacker sector will have more of a say on the subject.
    This article compliments Samantha’s and was released on the same day.