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Construction worker exploited on site by subcontractor

Guntar,   Indonesia, 25

Name: Abdul*
Age: 35
Country of Origin: Indonesia
Visa with work rights (Temporary Business (Long Stay) - Standard Business Sponsorship (Subclass 457) visa)

Why did Abdul come to Australia?

Abdul worked on construction sites in Indonesia. He didn’t have a qualification but had over 15 years experience in the industry. On the last site he worked at in Jakarta, as work was finishing up, the workers were visited by an international employment firm. They talked about the possibility of going to work in Australia where, they said, the conditions were very good and the pay was exceptional. Abdul had four kids from 4 to 15 years old and he wanted to make sure they got the best education possible, which wasn’t easy on the money he earned in Indonesia. It was hard for Abdul to leave his family but he thought he would do it for a couple of years and send all the money he earned home.

He had an interview with the employment firm who linked him up with an Australian construction labour subcontractor. The subcontractor sponsored him to come to Australia on a 457 visa. Abdul was told he would be working as a tradesperson on large building sites in Canberra. They told him he would get weekends off and that his pay would be in line with Australian award wages. Abdul was told his accommodation would be arranged for him.

What happened when Abdul got to Australia?

When Abdul arrived in Australia, he was not given a safety briefing by the subcontractor. Because of his limited English, he was not able to read signs on the building sites or understand directions from his co-workers. He was paid $250 for six days’ work per week, which he thought was a lot of money. This was substantially below the award wage.

He lived on his boss’s rural property about 30 minutes out of the city with 12 other workers, who were driven each day to work by the boss in a van. Abdul was told he could leave the property but there was no accessible public transport. He was told that $100 per week was deducted from his wages for board. This left him with only $150 per week to send home to his family, minus his expenses. He did not have a mobile phone and was only granted 10 minutes access each week to the landline where he was living to call his family. The cost of his calls to Indonesia were deducted from his wages.

On his day off, the boss asked Abdul to do odd jobs around the property. Abdul didn’t want to upset his boss because he was afraid of being sent home with no money for his family in Indonesia.

How does Australian law see this?

In Wei Tang, the High Court emphasised the difficulty in drawing the line between slavery and “harsh and exploitative conditions of labour”. Abdul’s case is not very clear-cut and it would be difficult to argue that the boss was in breach of the slavery offences in the Commonwealth Criminal Code Additionally, the Code does not have a stand-alone offence of forced labour.

However, it is an offence to traffic someone to Australia for the purposes of exploitation by the use of deceit. The subcontractor seems to have deceived Abdul about the rate of pay and may have committed trafficking offences.

In addition, the subcontractor has almost certainly breached parts of the Fair Work Act 2009 (Cth) which regulate fair working conditions and pay in Australia. He may be subjected to serious financial penalties or even imprisonment if he taken to court by the Fair Work Ombudsman. Abdul may also be able to bring a civil action against the subcontractor to recover unpaid wages. To find out more about civil remedies and remedies under the Fair Work Act, see Fact Sheet #15 Getting Help and Fact Sheet #7 Legal Response to Slavery.

“I was not given any information about working conditions and fair rates of pay in Australia. Now that I know I feel like I have been taken advantage of. Because I was staying at my boss’s house I felt very isolated. There was no-one I could talk to about the problems at work.”


*Note: "Abdul" is not his real name

 

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