In New South Wales, the Ethical Clothing Trades Extended Responsibility Scheme operates as a mandatory scheme for protecting the entitlements of outworkers in the textile clothing and footwear industries (TCF). The term ‘outworkers' refer to workers who perform work outside conventional business premises and factories, and instead in their own residential premises. The problem with the scheme is that it hasn't been operational since around 2014 and in the ensuing years the functions of Scheme have been incorporated by the legislative regime created by the Fair Work Act and employment and workplace safety legislation. The devil is the detail. Our submission urges that the government ensure suitable resourcing is available for reporting and enforcement in Australia AND we do more, much more, to ensure that international supply chains are free from modern slavery.
The Scheme was first established in 2005 by the NSW state government under NSW state legislation in recognition of TCF outworkers being one of the most exploited and vulnerable workforces in Australia. TCF outworkers are particularly vulnerable as they consist of a predominantly female migrant workforce from non-English speaking backgrounds and are often less visible to labour law regulators due to the nature of their work in residential premises.
The Scheme was enacted at a time prior to the referral of state industrial relations powers to the Commonwealth and where the only applicable industrial relation laws that applied to protect TCF outworkers was the now largely superseded Clothing Trades (State) Award. This is of significant context given the subsequent creation of the extensive federal system of employment under the Fair Work Act (Cth) (2009) (Cth) (FW Act), which in present day, also governs working conditions and entitlements for a broad range of vulnerable workers, including TCF outworkers.
The NSW Modern Slavery Act commenced on 1 January 2022. It was introduced by the Hon. Paul Green as a private member’s bill, which passed before the Commonwealth Modern Slavery Act passed. The NSW Modern Slavery Act introduced the role of Anti-slavery Commissioner. The NSW Modern Slavery Act requires the Anti-slavery Commissioner to regularly consult with the Auditor-General and the NSW Procurement Board to monitor the effectiveness of due diligence procedures in place to ensure that goods and services procured by government agencies are not the product of modern slavery. The NSW Anti-Slavery Commissioner’s Guidance on Reasonable Steps to Manage Modern Slavery Risks in Operations and Supply Chains is aimed at providing NSW public buyers with more information on how they can comply with these obligations.
We consider that there is no need for the NSW government to re-enliven the Scheme. Resources are better streamlined and directed elsewhere. Instead, we recommend that any funding provided to maintain the Scheme could be better used by being directed towards the functions of the FWO, the Ethical Clothing Australia (ECA) code, and/or the NSW Anti-Slavery Commissioner who already play important roles in protecting the most vulnerable workers in Australia, including TCF outworkers in NSW.
From an anti-slavery perspective, a significant barrier to detecting instances of modern slavery is lack of awareness. Reaching vulnerable groups is one of the action items in the National Action Plan to Combat Modern Slavery 2020–25. The NSW Anti-Slavery Commissioner currently has, and the proposed Commonwealth Anti-Slavery Commissioner will have, important roles in increasing societal awareness of modern slavery. More funding to organisations such as the ECA can increase the profile of their work and reach workers that are more vulnerable to labour exploitation. Education of retailers and consumers is also critical, to drive demand for Australian, ethically produced, clothing in a market in which cheaper, imported products from jurisdictions with inferior labour protections dominate.
Although modern slavery exists in Australia, even larger risks exist outside of Australia. Neither the Scheme, nor the ECA Code, directly address modern slavery risks in the inherently global supply chains of the clothing sector. Goods manufactured in Australia will likely use raw materials, such as cotton, which are mainly produced overseas. According to the US Department of Labor, cotton from Argentina, Azerbaijan, Benin, Brazil, Burkina Faso, China, Egypt, India, Kazakhstan, Krygyz Republic, Mali, Pakistan, Tajikistan, Türkiye, Turkmenistan and Zambia are produced by child labour or forced labour. Due diligence obligations proposed by Dr McMillan in the Modern Slavery Act Review Report will strengthen business’ response to address these upstream risks. We believe that this is an area that the proposed role of the Commonwealth Anti-Slavery Commissioner should be able to provide further assistance.
More information about this inquiry can be found here.
