Editor’s
note: Katharine Booth holds a LLM, Advanced Programme in European and
International Human Rights Law from Leiden University, Netherlands and a LLB
and BA from the University of New South Wales, Australia. She is currently
working at the Asser Institute in The Hague. She previously worked as a lawyer and
for a Supreme Court Justice in Australia.
This series
of blog posts focuses on the regulation of so-called ‘gangmasters’ in the UK
and Australia. A ‘gangmaster’ is an old English term for a person (an
individual or business) who organises or supplies a worker to do work for another
person.[1]
Gangmasters have been described as ‘middlemen’ or ‘brokers’ between
a worker and a business that needs temporary, and often seasonal, labour. In
other countries, including Australia, gangmasters are commonly referred to as labour
hire providers or labour market intermediaries.
In recent
years, legislation has been implemented in the UK and three Australian States (Queensland, Victoria and South Australia) requiring gangmasters to be
licensed. According to Judy Fudge and Kendra Strauss, central to these licensing schemes
is the protection of vulnerable workers from forced and unfree labour and
exploitation:
“[E]vidence suggests that ‘sweating’ at the
bottom end of the labour market (increasingly populated by migrant workers,
both documented and undocumented, in many countries) often involves labour
intermediaries who exploit the ways in which processes of racialization and the
construction of new categories of social difference, instigated by immigration
regimes, render some workers extremely vulnerable—including to forced and
unfree labour.”
As noted by
Kendra Strauss, migrant workers are especially
vulnerable to exploitation as they often migrate from less developed economies,
have a precarious migrant status, and are employed in poorly-paid positions. They
often lack English language skills and have little knowledge of their legal
entitlements and pathways for accessing remedies which, according to an Oxfam
GB report, makes it unlikely that they will
report abuse or exploitation, for fear of losing their jobs. Moreover, as Sayomi Ariyawansa explains, the three-tiered or
tripartite arrangement between the worker, gangmaster and host business means
that there is no direct contractual relationship between the worker and host
business and little oversight of the legal arrangements between the worker and
gangmaster. This makes it easy for unscrupulous gangmasters to slip through
legal cracks, but also for businesses to unknowingly enter into arrangements
with gangmasters that do not comply with the law.
This series
of blog posts explores the connection between the regulation of gangmasters and
the enactment of modern slavery legislation, namely legislation calling on
companies to report on modern slavery and other labour and human rights abuses
in their corporate supply chains. It is divided into four main parts. Part 1 of
this series explores two main issues. (1) The circumstances that led to the
enactment of gangmaster licensing schemes in the UK and Australia, and the
laws’ provisions relating to the licensing of workers. (2) The limitations of
these laws, particularly the inability of licensing schemes to hold liable
companies that enter into business arrangements with gangmasters, as well as
companies higher in the supply chain. Part 2 explores reform of these laws in the
UK and Australia in view of the relatively recent modern slavery legislation
implemented in both countries.More...
Editor’s
note: Katharine Booth holds a LLM, Advanced Programme in European and
International Human Rights Law from Leiden University, Netherlands and a LLB
and BA from the University of New South Wales, Australia. She is currently
working at the Asser Institute in The Hague. She previously worked as a lawyer and
for a Supreme Court Justice in Australia.
Both the UK
and Australia have enacted legislation regulating the activities of
‘gangmasters’ or labour hire providers. Part 1 of this series of blog posts examines
the circumstances that led to the enactment of labour hire licensing schemes in
both the UK and Australia, and some key limitations of these laws. Part 2 explores two issues closely connected
to the business and human rights context. (1) Reform (in the UK) and potential
reform (in Australia) of these laws in light of the increasing national and international
recognition of modern slavery, human trafficking, labour exploitation and other
human rights violations in corporate supply chains. Both the UK and Australia
have enacted ‘modern slavery laws’ requiring certain companies to publish
annual statements addressing human rights violations in their operations and
supply chains. At the same time as the introduction of the UK Modern Slavery
Act, the relevant gangmasters licensing authority (the Gangmasters Licensing
Authority (GLA)) was empowered with broad ‘police-like’ powers to investigate
offences under that Act. These powers have shifted the authority’s focus from
the passive regulation of the gangmasters licensing scheme to the active
enforcement of compliance with the Modern Slavery Act. (2) However, as
currently enacted, modern slavery laws are not perfect. A key criticism of
these laws is that they do not impose strong enforcement mechanisms
(particularly financial penalties) on companies that fail to comply with their
provisions. The imposition of penalties is central to ensuring that companies
take note of the importance of eliminating slavery from their supply chains. More...