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Slicing and Dicing Work in the Australian Horticulture Industry: Labour Market Segmentation within the Temporary Migrant Workforce

Published online by Cambridge University Press:  01 January 2025

Joanna Howe ,
Alex Reilly ,
Stephen Clibborn ,
Diane van den Broek  and
Chris F Wright
Joanna Howe*
Affiliation:
University of Adelaide
Alex Reilly*
Affiliation:
University of Adelaide
Stephen Clibborn*
Affiliation:
University of Sydney
Diane van den Broek*
Affiliation:
University of Sydney
Chris F Wright*
Affiliation:
University of Sydney
*
The author may be contacted at Joanna.howe@adelaide.edu.au.
The author may be contacted at alexander.reilly@adelaide.edu.au.
The author may be contacted at stephen.clibborn@sydney.edu.au.
The author may be contacted at diane.vandenbroek@sydney.edu.au.
The author may be contacted at chris.f.wright@sydney.edu.au.
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Abstract

This article exposes how disparity in the immigration rules of different visas combines with poor enforcement of labour standards to produce a segmented labour market in the Australian horticulture industry. We argue that the precarious work norms of the horticulture industry result in a ‘demand’ on the part of employers for harvest workers to perform precarious jobs. Such demand has been met by the workers supplied through different segments of temporary migrant labour who may be a particularly attractive form of precarious labour because of the conditionalities they experience as a result of their visa class. Our analysis demonstrates that not only do growers make preferences between local and temporary migrant workers, but they also make preferences between different types of temporary migrant workers. In identifying segmentation between temporary migrant workers on different visa categories, the article makes a significant contribution to the labour market segmentation literature, which hitherto has focused on segmentation between migrant workers and non-migrant workers.

Type
Articles
Information
Federal Law Review , Volume 48 , Issue 2 , June 2020 , pp. 247 - 271
Copyright
Copyright © 2020 The Author(s)

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References

1. Paul Ryan, ‘Segmentation, Duality and the Internal Labour Market’ in Frank Wilkinson (ed), The Dynamics of Labour Market Segmentation (Academic Press, 1981) 3, 4.

2. Ibid.

3. For research into segmentation arising from gender and ethnicity, see, eg, Richard Wright and Mark Ellis, ‘The Ethnic and Gender Division of Labor Compared Among Immigrants to Los Angeles’ (2000) 24(3) International Journal of Urban and Regional Research 583. For research into segmentation on the basis of a ‘visible difference’ between groups of workers, see Val Colic-Peisker and Farida Tilbury, ‘Integration into the Australian Labour Market: The Experience of Three “Visibly Different” Groups of Recently Arrived Refugees’ (2007) 45(1) International Migration 59.

4. For research on segmentation internationally, see, eg, Harald Bauder, Labor Movement: How Migration Regulates Labor Markets (Oxford University Press, 2006); Michael J Piore, Birds of Passage: Migrant Labor and Industrial Societies (Cambridge University Press, 1979); Roger Waldinger and Michael I Lichter, How the Other Half Works: Immigration and the Social Organization of Labor (University of California Press, 2003). For research on segmentation in Australia, see Christina Ho and Caroline Alcorso, ‘Migrants and Employment: Challenging the Success Story’ (2004) 40(3) Journal of Sociology 237; Constance Lever-Tracy and Michael Quinlan, A Divided Working Class: Ethnic Segmentation and Industrial Conflict in Australia (Routledge & Kegan Paul, 1988).

5. Joanna Howe et al, Sustainable Solutions: The Future of Labour Supply in the Australian Vegetable Industry (Report, Horticulture Innovation Australia, 1 February 2017). Similarly, a 2016 study conducted by the Australian Bureau of Agricultural and Resource Economics and Sciences found that close to 70% of seasonal horticulture workers were visa holders: Haydn Valle, Niki Millist and David Galeano, Australian Bureau of Agricultural and Resource Economics and Sciences, Department of Agriculture and Water Resources, Labour Force Survey (Research Report, May 2017) 9 <http://data.daff.gov.au/data/warehouse/9aaam/2017/ABARESLabourForceSurvey/LabourForceSurvey_%2020170518_v1.0.0.pdf>.

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8. Philip Martin, Immigration and Farm Labor: From Unauthorized to H-2A for Some? (Issue Brief, August 2017) <https://www.migrationpolicy.org/research/immigration-and-farm-labor-unauthorized-h-2a-some>.

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10. See, eg, Ben Doherty, ‘Hungry, Poor, Exploited: Alarm over Australia’s Import of Farm Workers’, The Guardian (online), 3 August 2017 <https://www.theguardian.com/global-development/2017/aug/03/hungry-poor-exploited-alarm-over-australias-import-of-farm-workers>; ‘Slaving Away: The Dirty Secrets behind Australia’s Fresh Food’, Four Corners (Australian Broadcasting Corporation, 2015) <http://www.abc.net.au/4corners/stories/2015/05/04/4227055.htm>; Nick McKenzie and Richard Baker, ‘Fruits of their Labour: Investigation into Exploitation of Migrant Fruit Picking Workers in Australia’, The Sydney Morning Herald (online) <http://www.smh.com.au/interactive/2016/fruit-picking-investigation/>.

11. Elsa Underhill and Malcolm Rimmer, ‘Layered Vulnerability: Temporary Migrants in Australian Horticulture’ (2015) 58(5) Journal of Industrial Relations 608; Joanna Howe et al, ‘Towards a Durable Future: Tackling Labour Challenges in the Australian Horticulture Industry’ (Final Report, January 2019) <https://sydney.edu.au/content/dam/corporate/documents/business-school/research/work-and-organisational-studies/towards-a-durable-future-report.pdf> (‘Towards a Durable Future’).

12. Senate Education and Employment References Committee, Parliament of Australia, A National Disgrace: The Exploitation of Temporary Work Visa Holders (Report, 17 March 2016); Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Hidden in Plain Sight: An Inquiry into Establishing a Modern Slavery Act in Australia (Report, December 2017).

13. Fair Work Ombudsman, Inquiry into the Wages and Conditions of People Working under the 417 Working Holiday Visa Program (Inquiry Report, October 2016).

14. Fair Work Ombudsman, Horticulture Industry Shared Compliance Program 2010 (Final Report, November 2010) 1.

15. Peter B Doeringer and Michael J Piore, Internal Labor Markets and Manpower Analysis (Heath Lexington Books, 1971); Patrick McGovern, ‘Immigration, Labour Markets and Employment Relations: Problems and Prospects’ (2007) 45(2) British Journal of Industrial Relations 217; Jill Rubery, ‘Structured Labour Markets, Worker Organisation and Low Pay’ (1978) 2(1) Cambridge Journal of Economics 17.

16. Simon Deakin, ‘Addressing Labour Market Segmentation: The Role of Labour Law’ (Working Paper No 52, Governance and Tripartism Department, International Labour Office, October 2013).

17. Valerio De Stefano, ‘A Tale of Oversimplification and Deregulation: The Mainstream Approach to Labour Market Segmentation and Recent Responses to the Crisis in European Countries’ (2014) 43(3) Industrial Law Journal 253; Edoardo Ales, Olaf Deinert and Jeff Kenner (eds), Core and Contingent Work in the European Union (Hart Publishing, 2016).

18. Assar Lindbeck and Dennis Snower, ‘Involuntary Unemployment as an Insider–Outsider Dilemma’ (Seminar Paper No 282, Institute for International Economic Studies, University of Stockholm, July 1984).

19. Colin C Williams and Mark A Lansky, ‘Informal Employment in Developed and Developing Economies: Perspectives and Policy Responses’ (2013) 152(3–4) International Labour Review 355.

20. Guy Davidov, ‘Joint Employer Status in Triangular Employment Relationships’ (2004) 42(4) British Journal of Industrial Relations 727, 730.

21. Ryan (n 1) 4.

22. Deakin (n 16) 1.

23. Howe et al (n 5).

24. Judy Fudge and Rosemary Owens, ‘Precarious Work, Women, and the New Economy: The Challenge to Legal Norms’ in Judy Fudge and Rosemary Owens (eds), Precarious Work, Women, and the New Economy: The Challenge to Legal Norms (Hart Publishing, 2006) 3, 3.

25. Nicola Kountouris, ‘The Legal Determinants of Precariousness in Personal Work Relations: A European Perspective’ (2012) 34(1) Comparative Labor Law & Policy Journal 21.

26. Ibid 24.

27. See, eg, Joanna Howe and Rosemary Owens (eds), Temporary Labour Migration in the Global Era: The Regulatory Challenges (Hart Publishing, 2016); Cathryn Costello and Mark Freedland (eds), Migrants at Work: Immigration and Vulnerability in Labour Law (Oxford University Press, 2014); Massimo Pilati et al (eds), How Global Migration Changes the Workforce Diversity Equation (Cambridge Scholars Publishing, 2015).

28. Bridget Anderson, ‘Migration, Immigration Controls and the Fashioning of Precarious Workers’ (2010) 24(2) Work, Employment and Society 300, 312.

29. Ibid 312–13 (emphasis in original).

30. Laurie Berg, Migrant Rights at Work: Law’s Precariousness at the Intersection of Immigration and Labour (Routledge, 2016) 40.

31. Joanna Howe and Alexander Reilly, ‘Meeting Australia’s Labour Needs: The Case for a New Low-Skill Work Visa’ (2015) 43 Federal Law Review 259, 261.

32. Joo-Cheong Tham, Iain Campbell and Martina Boese, ‘Why is Labour Protection for Temporary Migrant Workers so Fraught? A Perspective from Australia’ in Joanna Howe and Rosemary Owens (eds), Temporary Labour Migration in the Global Era: The Regulatory Challenges (Hart Publishing, 2016) 173, 176.

33. Anthony Forsyth, Victorian Inquiry into the Labour Hire Industry and Insecure Work (Final Report, Industrial Relations Victoria, 31 August 2016) 315–16.

34. Chris F Wright and Stephen Clibborn, ‘Back Door, Side Door or Front Door? An Emerging De-Facto Low-Skilled Immigration Policy in Australia’ (2017) 39(1) Comparative Labor Law & Policy Journal 165.

35. Joanna Howe, Sara Charlesworth and Deborah Brennan, ‘Migration Pathways for Frontline Care Workers in Australia and New Zealand: Front Doors, Side Doors, Back Doors and Trap Doors’ (2019) 42(1) University of New South Wales Law Journal 211.

36. Martin Ruhs, ‘Temporary Foreign Worker Programmes: Policies, Adverse Consequences and the Need to Make Them Work’ (Working Paper 56, Center for Comparative Immigration Studies, June 2002) 18.

37. See, eg, Einat Albin, ‘The Sectoral Regulatory Regime: When Work Migration Controls and the Sectorally Differentiated Labour Market Meet’ in Cathryn Costello and Mark Freedland (eds), Migrants at Work: Immigration and Vulnerability in Labour Law (Oxford University Press, 2014) 134.

38. Judy Fudge and Joo-Cheong Tham, ‘Dishing up Migrant Workers for the Canadian Food Services Sector: Labor Law and the Demand for Migrant Workers’ (2017) 39(1) Comparative Labor Law & Policy Journal 1, 2.

39. Joanna Howe et al, ‘A Tale of Two Visas: Interrogating the Substitution Effect between Pacific Seasonal Workers and Backpackers in Addressing Horticultural Labour Supply Challenges and Worker Exploitation’ (2018) 31(2) Australian Journal of Labour Law 209 (‘A Tale of Two Visas’); Curtain et al (n 7).

40. Underhill and Rimmer (n 11).

41. The Fair Work Ombudsman estimates that there are approximately 130 000 workers employed annually in the industry: Fair Work Ombudsman (n 14) 2.

42. Howe et al, ‘Towards a Durable Future’ (n 11) 101.

43. Chris F Wright, Dimitria Groutsis and Diane van den Broek, ‘Employer-Sponsored Temporary Labour Migration Schemes in Australia, Canada and Sweden: Enhancing Efficiency, Compromising Fairness?’ (2017) 43(11) Journal of Ethnic and Migration Studies 1854.

44. See Nick McKenzie, ‘Slavery Claims as Seasonal Workers from Vanuatu Paid Nothing for Months’ Work’, The Sydney Morning Herald (online), 27 March 2017 <http://www.smh.com.au/national/investigations/slavery-claims-as-seasonal-workers-from-vanuatu-paid-nothing-for-months-work-20170327-gv7k99.html>; Fair Work Ombudsman, ‘Pacific Islander Visa-Holders Worked 36 Consecutive Days, Short-Changed $14,700’ (Media Release), 25 August 2016 <https://www.fairwork.gov.au/about-us/news-media-releases/2016-media-releases/august-2016/20160825-seasonal-labour-solutions-eu-presser>. See also John Connell, ‘From Blackbirds to Guestworkers in the South Pacific. Plus ça Change…?’ (2010) 20(2) Economic and Labour Relations Review 111.

45. See, eg, the observation from the Chair of the Joint Standing Committee on Migration, Louise Markus MP, that ‘[w]hile the impetus for establishing the working holiday visa is for cultural exchange, the reality is it fills a significant labour gap within the industry and is in direct competition with the Seasonal Worker Programme’: Joint Standing Committee on Migration, Parliament of Australia, Seasonal Change: Inquiry into the Seasonal Worker Programme (Report, May 2016) vii. See also Peter Mares, ‘Comparing Apples and Oranges’, Inside Story (Blog Post), 5 July 2016 <http://insidestory.org.au/comparing-apples-and-oranges>. See also Curtain et al (n 7).

46. See, eg, Orley Ashenfelter and James Heckman, ‘The Estimation of Income and Substitution Effects in a Model of Family Labor Supply’ (1974) 42(1) Econometrica 73.

47. Howe et al, ‘A Tale of Two Visas’ (n 39) 210–11.

48. Senate Standing Committee on Employment, Workplace Relations and Education, Parliament of Australia, Perspectives on the Future of the Harvest Labour Force (Report, October 2006) 14 [2.6].

49. ‘Regional Australia’ is all of Australia except the Australian Capital Territory and the major capital cities. ‘Specified work’ includes various types of low-skilled work performed in the agriculture, mining and construction industries: Migration Regulations 1994 (Cth) sch 2, cl 417.11.

50. Howe et al, ‘Towards a Durable Future’ (n 11) 93.

51. Ibid 130.

52. Department of Home Affairs, Working Holiday Maker Visa Program Report (Report, 30 June 2018) 7.

53. Fair Work Ombudsman (n 13) 33 (emphasis added).

54. Department of Immigration and Border Protection, Australia’s Migration Trends 2014–15 (Report, 2016) 68.

55. Underhill and Rimmer (n 11) 613–14.

56. Department of Immigration and Border Protection, ‘Visa Overstays for the Financial Year—Programme 1.2: Border Management’ (Question Taken on Notice, Budget Estimates Hearing, BE17/172, 22 May 2017).

57. Department of Immigration and Citizenship, Fact Sheet 87 − Initiatives to Combat Illegal Work in Australia (Fact Sheet, 2013).

58. Mitch Mott, ‘Illegal Agricultural Workers Detained after Raids on Naracoorte Property’, The Advertiser (online), 6 August 2018 < https://www.adelaidenow.com.au/news/law-order/illegal-agricultural-workers-detained-after-raids-on-naracoorte-property/news-story/fa0b1eb15a17c3f105460ddf98932649>; Cameron Bates, ‘Ingham Ju Fu Chinese Restaurant Temporarily Closed After Illegal Worker Raid’, The Townsville Bulletin (online), 30 May 2018 <https://www.townsvillebulletin.com.au/news/crime-court/ingham-ju-fu-chinese-restaurant-temporarily-closed-after-illegal-immigrant-raid/news-story/71d7f5c769edd494b8e69d8e5b6bb449>; Joanna Menagh, ‘Trial Aborted Four Years after Market Garden Raids led to Allegations of Illegal Foreign Workers’, ABC News (online), 7 May 2018 < https://www.abc.net.au/news/2018-05-07/market-gardeners-on-trial-for-using-illegal-foreign-work/9727068>; Natalie Kotsios, ‘Border Force Farm Raid: Foreign Workers in Cobram Detained’, The Weekly Times (online), 26 April 2018 < https://www.weeklytimesnow.com.au/news/national/border-force-farm-raid-foreign-workers-in-cobram-detained/news-story/9968cf6891e2300711b207a4c5b69d92>; Graeme Powell, ‘Dozens of Illegal Workers Detained by Border Force Officers at Perth Strawberry Farm’, ABC News (online), 14 September 2017 < https://www.abc.net.au/news/2017-09-14/border-force-rounds-up-illegal-workers-on-wa-strawberry-farm/8944140>; Grant Taylor, ‘Rude Awakening for Sleepy Farm Workers’, The West (online), 2 March 2017 < https://thewest.com.au/news/wa/rude-awakening-for-sleepy-workers-ng-b88399983z>; ‘Queensland Strawberry Farm Raid Net 27 Illegal Workers’, Brisbane Times (online), 8 February 2017 <https://www.brisbanetimes.com.au/national/queensland/queensland-strawberry-farm-raid-nets-27-illegal-workers-20170208-gu8bv6.html>.

59. Underhill and Rimmer (n 11) 614.

60. Howe et al, ‘Towards a Durable Future’ (n 11) 115.

61. Abbas Tashakkori and John W Creswell, ‘Editorial: Exploring the Nature of Research Questions in Mixed Methods Research’ (2007) 1(3) Journal of Mixed Methods Research 207.

62. Kathleen M Eisenhardt and Melissa E Graebner, ‘Theory Building from Cases: Opportunities and Challenges’ (2007) 50(1) Academy of Management Journal 25, 27.

63. Focus group with growers in Orange (Joanna Howe, 28 June 2018) (‘Orange growers’).

64. Focus group with growers in Binningyup (Joanna Howe and Alex Reilly, 13 March 2018) (‘Binningyup growers’).

65. Focus group with growers in Darwin (Joanna Howe, 24 April 2018) (‘Darwin growers’).

66. Focus group with growers in Katherine (Joanna Howe, 26 April 2018) (‘Katherine growers’).

67. Focus group with growers in Wanneroo (Joanna Howe and Alex Reilly, 12 March 2018) (‘Wanneroo growers’).

68. Darwin growers (n 65).

69. Interview with Industry association official (Joanna Howe, Melbourne, 17 October 2018).

70. Wanneroo growers (n 67).

71. Interview with grower from Bullsbrook (Joanna Howe and Alex Reilly, 13 March 2018).

72. Wanneroo growers (n 67).

73. Interview with union official (Joanna Howe, Melbourne, 5 September 2017) (‘Union official interview’).

74. Interview with Department of Jobs and Small Business official (Joanna Howe, Canberra, 20 December 2017).

75. Interview with horticulture industry official (Joanna Howe, Darwin, 24 April 2017).

76. Binningyup growers (n 64).

77. Katherine growers (n 66).

78. Stuart Rosewarne, ‘Globalisation and the Commodification of Labour: Temporary Labour Migration’ (2010) 20(2) The Economic and Labour Relations Review 99, 103.

79. Sam Scott, ‘Migration and the Employer Perspective: Pitfalls and Potentials for a Future Research Agenda’ (2013) 19(6) Population, Space and Place 703.

80. Interview with community organiser (Stephen Clibborn and Diane van den Broek, Sydney, 19 December 2017).

81. Martin Ruhs and Bridget Anderson, Who Needs Migrant Workers? Labour Shortages, Immigration, and Public Policy (Oxford University Press, 2010) 16.

82. Union Official Interview (n 73).

83. Interview with labour hire contractor from Katherine (Joanna Howe, Katherine, 26 April 2018).

84. Interview with labour hire contractor from Gingin (Joanna Howe and Alex Reilly, Wanneroo, 13 March 2018 (‘Gingin Labour Hire Contractor’).

85. Orange growers (n 63).

86. Binningyup growers (n 64).

87. Gingin Labour Hire Contractor (n 84).

88. Interview with labour hire contractor from Orange (Joanna Howe, Orange, 27 June 2018) (‘Orange labour hire contractor’).

89. Interview with community representative from Mjldura (Diane van den Broek and Chris F Wright, Mildura, 25 June 2018).

90. Focus group with workers in Orange (Joanna Howe, Orange, 28 June 2018).

91. Fair Work Ombudsman, Harvest Trail Inquiry: A Report on Workplace Arrangements along the Harvest Trail (Report, 2018) 4–5.

92. Fair Work Ombudsman, Inquiry into the Wages and Conditions of People Working under the 417 Working Holiday Visa Program (Report, October 2016) 4.

93. Laurie Berg and Bassina Farbenblum, Wage Theft in Australia: Findings of the National Temporary Migrant Worker Survey (Report, November 2017) 30.

94. Interview with worker (Joanna Howe, Sydney, 12 August 2017).

95. Fair Work Ombudsman (n 91).

96. Interview with accommodation provider from Mundubbera (Diane van den Broek, Mundubbera, 17 February 2018).

97. Interview with FWO inspector (Stephen Clibborn, Toowoomba, 19 January 2016).

98. Interview with AWU official (Chris F Wright, Sydney, 14 June 2018).

99. Interview with Stanthorpe police force representative (Stephen Clibborn, Stanthorpe, 21 January 2016).

100. Interview with former undocumented worker (Stephen Clibborn, Griffith, 26 April 2018) (‘Former undocumented worker’).

101. Emma Field, ‘Illegal Malaysian Farm Labourer Told About “Kangaroo Call” When Starting Work’, The Weekly Times (online), 5 August 2015 <https://www.weeklytimesnow.com.au/news/national/illegal-malaysian-farm-labourer-told-about-kangaroo-call-when-starting-work/news-story/eb02f7037082803af6ced386775540d6>.

102. Senate Standing Committee on Employment, Workplace Relations and Education, Parliament of Australia (n 48) vii.

103. Orange labour hire contractor (n 88).

104. Former undocumented worker (n 100).

105. Norman Hermant, ‘Seasonal Farm Workers Receiving as Little as $9 a Week after Deductions, Investigation Reveals’, Australian Broadcasting Corporation (Web Page), 25 February 2016 <https://www.abc.net.au/7.30/seasonal-farm-workers-receiving-as-little-as-$9-a/7201286>; Norman Hermant, ‘Seasonal Farm Workers Receiving Less than $10 a Week after Deductions, Investigation Reveals’, ABC News (online), 26 February 2016 <https://www.abc.net.au/news/2016-02-25/seasonal-farm-workers-receiving-as-little-as-$9-a-week/7196844>; Ben Schneiders, ‘Migrant Farm Workers Launch Landmark $10 m Legal Claim’, The Sydney Morning Herald (online), 29 July 2018 <https://www.smh.com.au/business/workplace/migrant-farm-workers-launch-landmark-10m-legal-claim-20180727-p4zu2f.html>; Nick McKenzie and Nick Toscano, ‘Seasonal Workers Program Pickers Told if they Join a Union, They’ll Get No Work’, The Sydney Morning Herald (online), 11 March 2017 <https://www.smh.com.au/business/seasonal-workers-warned-if-they-join-a-union-theyll-get-no-work-20170309-guujgv.html>.

106. Former undocumented worker (n 100).

107. Union official interview (n 73).

108. Cheryl Reed et al, Department of Education, Employment and Workplace Relations, Final Evaluation of the Pacific Seasonal Worker Pilot Scheme (Final Report No 53197, September 2011) 10.

109. Senate Education and Employment References Committee, Parliament of Australia (n 12) 119.

110. ‘Working Holiday Maker Visa Program’, Department of Home Affairs (Web Page), 7 November 2018 <https://www.homeaffairs.gov.au/news-subsite/Pages/2018-Nov/working%20holiday%20maker%20visa%20program.aspx>.