Kate Lundy (ACT, Australian Labor Party, Shadow Minister for Sport and Recreation) Share this | Hansard source

I rise in this place today to raise a matter of public interest relating to the employment of skilled migrant workers who have been forced to work under appalling circumstances and well below the Australian federal award in some of Canberra’s restaurants and cafes.

The ongoing shortage of skilled chefs under the Howard government’s neglect of much-needed training and apprenticeships created the circumstances for these unfortunate and regrettable events that I will now outline. I am hopeful that bringing these issues to the parliament will help bring justice to the workers involved and remind the minority of employers who choose to do the wrong thing that it is unacceptable and will be challenged.

In late 2005, Canberra businessman Mr John Harrington and his executive chef placed advertisements in Filipino newspapers to specifically attract skilled Filipino workers to Australia to be employed in the hospitality industry. After applicants to the advertisements underwent trade tests in Manila of their capabilities, it has been reported, about 30 highly trained Filipino workers were recruited and offered employment sponsorship in Australia. A number had previously been employed in world-class restaurants and international-standard hotels in a number of countries as chefs. Some of these workers have since been employed in Canberra under the Liquor and Allied Industries Catering, Cafe, Restaurant, Etc. (Australian Capital Territory) Award, and the conditions of the subclass 457 Business (Long Stay) Visa.

According to Migration Regulations 1994, the criteria for employment under a subclass 457 Business (Long Stay) Visa require:

(i)

the applicant will be paid at the level specified in the nomination; and

(ii)

that level will be not less than the level of remuneration provided for under relevant Australian legislation and awards; and

(iii)

the applicant’s working conditions will be no less favourable than working conditions provided for under relevant Australian legislation and awards.

However, after their arrival in Australia and employment in Canberra, approximately 15 of these migrant workers have had cause for complaint and some have been forced to work in conditions they have described as the worst that they have ever experienced.

These problems have already received an airing in the media over the last two weeks. As a result of an approach by the Liquor, Hospitality and Miscellaneous Union for assistance and after reading these disturbing statements on Friday, I issued a media release calling on those employers involved to address the complaints of these migrant workers and that of their union, the LHMU. I called on the employers to take steps to resolve the problems or I would name and shame them in parliament.

The LHMU is acting on the complaints it has received from its members, and on behalf of these workers has filed formal complaints to the Australian Capital Territory Human Rights Office and relevant occupational health and safety bodies, sought investigations by the Office of Workplace Services and approached the Department of Immigration and Multicultural Affairs to investigate possible breaches of the 457 visa conditions. The claims are based on the underpayment of the workers under the Australian federal award. The amounts sought have a combined total of around $31,000. I have also heard first hand the workers’ complaints of racial vilification and discrimination.

These claims, if proven, constitute a breach of the provisions of their subclass 457 employment visa and the ACT Human Rights Act—not to mention that they constitute behaviour that is completely unacceptable in any workplace based on common decency. The complaints have been made by LHMU members Mr Louie Sales, Ms Donabella Cruz and Mr Dario Deguzman. Mr Deguzman’s story was outlined in a Canberra Times article on Saturday, 28 January. The Weekend Australian reported on the same day that the Holy Grail was involved in the complaints. I think it only fair to name the Holy Grail restaurant of Kingston and Civic in that it has received a wage claim from the LHMU regarding Mr Dario Deguzman and is the subject of an ACT human rights complaint. However, I am advised that discussions and negotiations in relation to the wage claim are occurring in good faith and both parties are working towards a resolution.

The other two establishments involved in the specific complaints brought to my attention are Zeffirelli’s pizza restaurant of Belconnen and Dickson and the Milk and Honey restaurant in Civic. The ACT Chamber of Commerce is representing Zeffirelli’s and I am advised that, following clarification of award entitlements, some back payments are to be made to staff. The LHMU are hopeful that the underpayment of wages will be resolved shortly. I urge the parties to continue discussions.

What is the substance of these complaints? I found it moving and extremely disturbing to hear the personal accounts of these workers and I relay their stories as outlined in their complaint statements to the ACT Human Rights Office. While originally employed by John Harrington and Ashley Delandar in Manila the workers had been told that they were ‘sold’ by Mr Harrington to their employer for between $6,000 and $8,000 each. Mr Sales has worked extensively in the Middle East, South-East Asia, on international cruise ships and in England. Despite this wealth of experience, he has been repeatedly directed to work as a kitchen hand and perform other menial and repetitive tasks. According to Mr Sales:

On one occasion ... the chef retrieved discarded food from the rubbish bin and ordered me to eat it.

He goes on to say that the chef had:

... repeatedly said to me ‘I paid for you to come to Australia, if you don’t work hard enough I will send you back to where you belong.’

That is, the Philippines. Mr Sales also states:

I do not want to return to the Philippines yet because my family relies on my Australian income to live. I wish to remain in Australia and only ask to be paid properly and treated with dignity and respect. I want to be treated like a human being and not forced to eat scraps from the rubbish bin, or insulted, derided, pushed and jostled in the kitchen for no apparent reason.

After beginning employment on September 8, 2005, Mr Sales was no longer able to work in this environment and left his employment at Milk and Honey on 8 January 2006.

Donabella Cruz was also recruited from Manila after answering an advertisement titled ‘Chefs for Australia’ placed in the Philippines national daily newspaper the Manila Bulletin. Ms Cruz states that she works well in excess of her contracted hours and describes her treatment by her employer as ‘abusive and threatening’ with constant disparaging comments made about her country and her people. She said:

They often speak to me offensively and place dangerously excessive workloads on me. I am not allowed rest or to have meal breaks that I am legally entitled to—we can work from 9 am till 3 pm and not get a break—sometimes longer. I have been berated, abused and humiliated in front of other workers.

In her statement Ms Cruz says she asked her employer to abide by the contract he had signed. He told her that she ‘was only a trainee’ and that ‘he was not obliged to pay what had been agreed, because it is the maximum’ and ‘if you do not work harder’ he would ‘send you back to the Philippines’. Ms Cruz goes on to say:

When I suffered a severe third degree burn to my arm my employer refused to obtain or provide any medical treatment for me. The pain was very bad and I cried every day and every night. It was three days before I was able to find and see the doctor. The doctor gave me 10 days off.

Ms Cruz has also stated that she feels alone and as if she has been deliberately tricked to work in Australia as a slave. She also said:

The fact that I and my colleagues have been bought, sold and traded like some cheap commodity is extremely upsetting, and makes me feel like I am just some sort of a manual labour device to be used, abused and then discarded. This makes me feel sick and disgusted.

I hope that giving these complaints an airing in this place will ensure that they receive quick consideration by the ACT Human Rights Office and that justice is dealt out as soon as possible.

In relation to the wage claims, my understanding is that the Office of Workplace Services is continuing its investigations. This will presumably assist the union in ensuring that moneys owed under the relevant awards are paid up by the employers as quickly as possible. But the complaint lodged with the Department of Immigration and Multicultural Affairs in relation to breaches of 457 visa conditions has had a very disappointing response. The LHMU sought assistance from DIMA in relation to these matters. In a meeting this week the department told the union that these were just allegations. At no time has the department made contact with any of the workers, nor sought to discuss their situation. What a disgraceful brush-off. Surely it is incumbent on the department to investigate such claims and oversee the very contracts which they have approved.

The LHMU sought assistance from the department of immigration on a number of fronts. The first was that the workers involved be helped to leave their current workplaces and find alternate employment. The union also requested an extension of the 28-day limit in order for this to occur. Despite its active role in facilitating the recruitment of these workers, it appears the department wants to wash its hands of any responsibility to ensure their fair treatment under Australian law.

When the LHMU inquired as to what checks were made on compliance by the employer, DIMA advised that they only send out a form to the employer nine months after the worker begins. According to the LHMU, it is not aware of any worker who has ever been asked by DIMA about what employment standards are really like in their place of employment. This response by the department of immigration is simply unacceptable, and provides little to no protection for skilled migrant workers.

Since 1996, the Howard government has granted some 302,000-plus subclass 457 visas. I find it deplorable that over 300,000 people have been recruited in Australia under Australian conditions and yet the provisions of their visas and Australian law do little to protect them or provide them with recourse if they are unfairly treated by their employers who break the law.

Yet what is the Minister for Immigration and Multicultural Affairs prepared to do? She talks tough on changing the inherently bad culture of the department of immigration, a culture which has resulted in the minister sitting by and watching the inhumane and unfair treatment of the people whom the department of immigration deals with. It is one thing to roll out the rhetoric about ‘people being our business’ and to implement change programs and quite another to continue to allow such treatment of people working in this country. The minister must do more, but the reality is that it will not get better under this minister or under this government. This is a very sad state of affairs for all the migrant workers who find themselves in such appalling circumstances.

But it is conditions such as those that I have mentioned today which are likely to become the harsh reality which faces the most vulnerable Australian workers—particularly those who are brought here and then employed here—under the Howard governments extreme industrial relations laws, which are due to take effect next month. If this is the situation now, even with not all of those laws proclaimed, what is it going to be like after next month when the power of the unions to be effective in their organising efforts is further diminished and the scope and veracity of Australian awards is further undermined by the Howard government?

It is easy to make the observation that this government is one which does not care about people employed in this country, wherever they come from. It does not care about the awards or minimum conditions; or the loss of overtime or the underpayment of penalty rates and wages; or the basic working conditions, from occupational health and safety through to basic human rights.

I hope that by raising these issues today I help these workers find justice. I know that some investigations are continuing, and I have made every effort to reflect accurately on the situation at this point in time. I have had some conversations, as I mentioned, with employers and/or their representatives and have been heartened by the fact that there seems to be a willingness, at least by some, to try and find a resolution to these disputes.

I also would like to congratulate the Restaurant and Catering Association in the Australian Capital Territory, because they seem very concerned about the fact that the law is being broken and that they are not in a position to guarantee that all of their members are abiding by the laws. I am pleased to see that they have undertaken to have further meetings with the LHMU to discuss this, with the hope of getting a positive outcome for all. There is a great deal of goodwill from the vast majority of employers in the restaurant and catering sector and they, like me and the union, are concerned about people who are not abiding by the law. Most of all, we all—employers and employees alike—face a collective challenge to try and find the balance in abiding by the law and treating workers with dignity in a climate where, quite frankly, the Howard government seems to be encouraging exploitation.