Can the Australian Modern Slavery Act offer the meaningful protections labour needs?

Andrea Maksimovic is the Associate Director of International and Civil Society at the Australian Council of Trade Unions.

Textile homeworker

When the idea of a Modern Slavery Act was first raised in Australia, some in the union movement saw it as yet another Corporate Social Responsibility (CSR) initiative, another ruse being used to convince the public that something is being done. Others saw it as least the first step of what could finally make a law that that would make companies pay attention to the exploitation in their supply chains.

At the domestic level, trade unions have been campaigning for decades for companies to be better regulated, and for those regulations to be better-enforced when it came to labour exploitation.

We saw what was happening in our workplaces and we urged governments to act. But we were told it was just a few rotten apples in the barrel. This kind of denial went on until only a few years ago, when the fact that exploitation—and, even worse—outright human rights abuses were happening in Australia, became clear.

Of course, labour rights abuses have been occurring in the supply chains of Australian companies overseas for decades, and apart from a few UN and OECD initiatives which have largely been ignored by governments, not much has been done.

Enter the Modern Slavery Act

So when, after years of campaigning for actual regulation, the Modern Slavery Act arrived in Australia, unions’ first reaction was to work together with the rest of civil society to make it more robust than that of the UK. Even by that early stage, it was clear that the UK Modern Slavery Act was a very soft attempt at dealing with a problem that needed much more than essentially a quasi-voluntary initiative.

Unfortunately, we did not succeed in our mission. Bar a few tweaks like a central repository, better reporting guidelines and making government departments report, the fear is that the Australian Modern Slavery Act will end up like the UK one, where a recent report by the UK Parliament showed that only 57% of companies required to report have done so three years on from the UK Act’s commencement. In 2017, 43% of the FTSE 100 failed to comply with this law alongside only 58% of the top 100 companies awarded government contracts.

This, and the quality of the statements has meant that, in terms of changing the rules on labour exploitation, not much has happened.

Main problems with the Australian Modern Slavery Act

The main cause of likely non-compliance with the Australian Act will be its lack of enforceability. An instrument without warnings, fines, or any kind of penalty is bound to not succeed in getting most companies to reveal what they are, or are not, doing in their supply chains to stop modern slavery.

Some claim this is not the end of the world. The requirement to report and the public register means that companies that don’t report properly can be “named and shamed” by NGOs and consumers.

But that relies on unions and NGOs having the resources to run constant campaigns and we know that companies these days mostly operate on the basis of risk-assessments. Moreover, and as history has proven, many companies don’t care or are not big brand names who will answer to consumers’ concerns.

The transparency requirement of the Modern Slavery Act needs to be recognised for what it is: a dressed-up CSR scheme that doesn’t make companies actually take action.

Strategies for tackling the problem

In order to get serious about dealing with this global scourge we must campaign for better laws that actually force companies to act.

Examples of stronger laws already exist like the French Law of Due Diligence which covers the entire supply chain and whose implementation involves trade unions.

We need to work towards a mechanism which will truly make companies accountable. But we don’t have to look far. This kind of mechanism already exists in the Australian system.

Precedents for more robust legislation

Our health and safety laws are seen to be best in the world and there are good reasons why they can be used as a template to develop a similar set of laws to fight modern slavery.

The number one reason is that they put the onus on the employer not the employee. This should also be applied to any reform of the MSA which would enable victims of modern slavery practices to speak out. Under our OHS laws, workers are encouraged by their unions to speak out about dangerous practices.

Number two is that they contain hefty financial and criminal penalties for non-compliance. The extent of exploitation occurring in Australia today suggests that large companies like 7-11 and Caltex are laughing in the face of the current fines they face.

And number three is that workplace laws decree that every workplace has to have a democratically elected OHS rep. Having unions and democratically elected workplace representatives engaged in the fight against slavery and exploitation is key to making companies accountable.

Making corporations responsible

The union movement will keep fighting to make sure that governments understand that changing corporate behaviour means making parent companies legally responsible for the exploitation of workers in their supply chains.

This also means that our government procurement rules must change to stop contracts going to companies that are not taking real action to deal with these issues in their supply chains.

Nothing will happen until the law is taken seriously and the law can’t be taken seriously unless those responsible learn that their actions have consequences.