Mere days before the scheduled commencement of the ACT’s Labour Hire Licensing Scheme, the regulations have finally been notified. Unlike the regulations in other states, they don’t set out exemptions or fees.
But for starters. the following are not “workers”:
·high income workers provided that they’re not covered by an award of enterprise agreement under the FWA;
·in-house employees on secondment;
·internal labour-hire employees working within a group of related entities;
·employed directors and senior managers of corporations with no more than two directors provided that the director or senior manager is the only person who is supplied by the corporation to undertake work for another person.
There are definitions that refine some of these exceptions.
The Australian Government’s response to the recommendations of the Royal Commission into Aged Care Quality and Safety has accepted most of the recommendations in the Commisison’s final report delivered in March this year.
Last night’s budget and supporting measures forecast that changes are afoot, with a promised review of the Aged Care Quality Standards to consider “appropriate regulatory levers to require providers to ensure staff are appropriately trained.”
Back in March, 2021 the Aged Care Royal Commission delivered its final report into the Australian Aged Care system and recommended a registration scheme for the personal care workforce that was to include:
a mandatory minimum qualification of a Certificate III
ongoing training requirements
minimum levels of English language proficiency
criminal history screening requirements
a code of conduct and power for a registering body to investigate complaints into breaches of the Code of Conduct and take appropriate disciplinary action.
Commissioner Briggs additionally recommended that the government consider whether registration should be established under the National Registration & Accreditation Scheme (“NRAS”).
Although the government has accepted Recommendation 77 “in principle”, it has determined not to establish the scheme under the NRAS due to concerns that the “NRAS requirements would be disproportionately burdensome for personal care workers and present a significant ongoing cost.”
Nevertheless, it has agreed:
to establish a single care and support sector code of conduct (Code) across the aged care, veterans’ care and disability support sectors for implementation by 1 July 2022; and
to deliver a nationally-consistent centralised pre-employment screening check with a register of cleared and excluded workers, in the aged and veterans’ care sectors, commencing 1 July 2022.
To that end, the government has included, in its latest budget, provision of $105.6 million to introduce the code of conduct, screening check and register.
The government additionally accepted:
Recommendation 80 – Dementia and palliative training for all workers; and
Recommendation 81- Ongoing professional development for the aged care workforce.
It has indicated that it will respond to aged care workforce development needs through its Growing a skilled, high-quality workforce to care for older Australians measure and will invest $338.5 million over 3 years “to grow, train and upskill the aged care workforce to drive improvements to the safety and quality of care”.
So, the clock is now ticking and there is just a little over twelve months to see what the changes will mean for recruitment and staffing services in the agency sector.
If you have the time to do it, browsing through the 2,000 plus modern slavery statements published to date on the Australian Register can yield huge dividends in terms of discovering how others identify and remediate risks of modern slavery in their supply chains.
If you don’t have time to do it, The Recruiters’ Casebook will try to bring you examples that recruitment and staffing firms would do well to note.
Here’s a textbook example of how Telstra Group used its leverage to address risks which it discovered in its supply chain. The Commnwealth’s Guidance for Reporting Entities on the Modern Slavery Act 2018 (p.51) explains that “Leverage means your ability to influence the other entities to change their behavior.”
Pay special attention to:
how the risk was identified
what the risk was
what justification the supplier put forward
why Telstra Group considered the practice was unacceptable
what Telstra Group did about it
how the supplier responded
what the subsequent outcome has been.
Telstra engaged an independent third party to conduct site audits of one of our suppliers’ labour practices. The audit revealed evidence of practices resembling debt bondage in their Hyderabad operations in India. Under the arrangements, employees were bound to repay training costs incurred as part of their recruitment. While the supplier asserted such practices were both common and legal in India, we took the view that it was not acceptable and in breach of our Supplier Code of Conduct.
We wrote to the supplier and asked them to remove this bond immediately for all employees delivering services to Telstra and all new hires. The supplier agreed to this request.
We also asked that the bond be removed for all other employees of the supplier including those who do not perform Telstra work. The supplier agreed not to take any action to enforce the service bond provisions under existing employment contracts and to issue all employees with new contracts that do not contain service bond provisions. A follow-up audit found the changes we requested had been implemented. We were also pleased to see evidence that throughout the COVID-19 pandemic, the supplier has continued to pay all employees 100 per cent of their wages.
In this example, Telstra Group is only saying that the supplier’s practise resembled debt bondage.
The Commonwealth’s Guidance for Reporting Entities on the Modern Slavery Act 2018 (p.78) explains that “debt bondage” occurs “where the victim’s services are pledged as security for a debt and the debt is manifestly excessive or the victim’s services are not applied to liquidate the debt, or the length and nature of the services are not limited and defined.”
Nevertheless, Telstra was sufficiently concerned about the practice to do something about it – and without getting involved in technical legal arguments about definitions.
The outcome shows what can be achieved when all parties co-operate to remediate practices that may have adverse impacts on workers and which may be questionable under values and principles of good workforce governance and supply chain stewardship.
What would you have done if you had discovered the practice or something similar in your supply chain or service network?
Browse through the 2,000 plus modern slavery statements published to date on the Australian register. You might see that there has been considerable interest in the use of “modern slavery clauses”. These clauses aim to remediate risks that are caused or contributed to by reporting entities or to which they are directly linked through their operations or supply chains.
Although such clauses can help remediate risks and create a solid foundation for cooperation between suppliers and their customers, some caution is still needed. That’s because the quality of the modern slavery clauses that have been described in the published statements ranges from well-tempered to confused to downright dangerous.
How do you tell the difference? You need to start with a clear understanding of what prohibitions exist and what Australia’s Modern Slavery Act requires.
Distinguishing good from bad
Did you know that the Act doesn’t actually prohibit modern slavery? That’s done by the criminal law.
Did you know that the Act doesn’t actually require you to eliminate modern slavery from your supply chains? It only requires some entities to report on the risks of modern slavery in their operations and supply chains and actions to address those risks.
Now think about some of the modern slavery clauses you might have seen:
the ones that reference so-called “duties of care” supposedly set out in the Act;
the cut-and paste ones that require you to warrant that your supply chain is free from slavery, servitude, forced or compulsory labour and human trafficking as defined by the Modern Slavery Act 2015; 
the ones that require you to comply with all your legal obligations, including WHS, but which forget to say anything meaningful about modern slavery and the Criminal Code;
the ones that require you to warrant that you will comply with all rules or international treaties signed by any government authority in relation to corporate social responsibility; but which fail to appreciate that, under our law, those rules only become binding in Australia once they are passed into domestic legislation -= and they are often passed into domestic legislation subject to reservations or variations;
the ones that include indemnities and hold-harmless provisions.
There are plenty of other examples of poorly constructed clauses out there!
Consequences of breach
Have you ever thought about what the consequences of a breach of these clauses might be? Can your customer refuse your claims for payment? Can you customer terminate your supply agreements? Have you even supplied what you agreed to supply (e.g., services free from any connection to forms of modern slavery through your operations or supply chains)? Can your customer sue you for damages?
Poorly designed modern slavery clauses do nothing to address modern slavery risks. They attempt to shift the burden of compliance in one direction. In doing so, they provide false comfort to parties who rely on them. They add unnecessary costs to transactions in which they are deployed.
A better approach
So, learn how to identify them. Explain to your customers why you can’t or won’t sign them, and help your customers to understand the important contribution that you can both make to combatting modern slavery, not only through well designed modern slavery clauses, but more importantly, through well-designed workforce governance controls and practices
Andrew C. Wood
 The MSA 2015 is actually and Act of the UK Parliament! The Australian MSA (Modern Slavery Act 2018 (C’th) doesn’t actually define these terms. They’re defined in the Criminal Code. “Modern Slavery” is given an extended meaning in the MSA (C’th).