Chapter Four

Outworkers in the Garment Industry
CONTENTS

Chapter Four

Government Involvement

1.1 In addition to legislation directly relating to circumstances of employment (awards and agreements), there are a number of ways in which government can be involved in, and may influence, the employment conditions experienced by outworkers. These include ensuring compliance with award provisions (DIR inspectorate), taxation matters and the reportable payments scheme, social security benefits, the Labour Adjustment Program, and implementation of the ILO Convention on Homework. There are also various way in which state governments and local councils can influence the employment conditions experienced by outworkers.

1.2 Award Compliance (Enforcement)

1.3 Awards are legally binding and breaches can be prosecuted in a district, county, local, magistrates or industrial relations court. Inspectors appointed under federal or state legislation can initiate a prosecution or can assist an individual to undertake legal action, although this is usually only carried out after attempts have been made to bring about voluntary compliance. Inspectors have the power to enter business premises to certify that compliance is occurring. In doing this they may inspect time and wages books, work, machinery, material and documents, as well as interview employees.

1.4 The proactive role that the Union plays in enforcing award conditions is entirely dependent upon the clauses of the various relevant Awards which require, inter alia, that employers register their identity, that they notify the appropriate industrial registry about the destination of all clothing work, and that they record all names and addresses of people who receive work. The Union currently has powers to enter an employer's premises to ensure that awards and agreements are being observed and to inspect both the relevant employer records and the circumstances of the disbursement of work [1]. These provisions will change, however, with the implementation of the Workplace Relations and Other Legislation Amendment Act 1996, as discussed earlier (Paragraph 3.24).

1.5 In addition to an increase in non-compliance by industry participants in recent years, the role of the Department of Industrial Relations Inspectorate has moved away from proactive activities and has become solely reactive. That is, the Inspectorate does not carry out investigatory work unless it has been prompted by a complaint, and it receives very few complaints from outworkers. [2] This is due to a number of factors:

1.6 Thus the low number of complaints received, combined with reduced funding for inspectorate activities, means that government inspectorates do not now play a strong role in enforcing award provisions. Considerable criticism of this decline was made in evidence to the Committee. [3]

1.7 The TCFUA noted that in NSW over the last decade the inspectorate role has changed from one of proactive investigation to one of simply following up on complaints. In addition, when complaints are made to the Federal Department of Industrial Relations, it now appears that the complainant is referred to the Union for assistance. [4]

1.8 The Working Women's Centre (NSW) argued in its submission that the activities of government inspectorates with regard to ensuring compliance were 'totally inadequate'. [5] When questioned in evidence about the response rate for complaints Ms Alcorso, representing the Centre, stated:

1.9 The community group, Asian Women at Work, supported the strengthening of award policing and argued that existing protections should not be removed by the proposed Workplace Relations legislation. [7]

1.10 However, in stating its own position the Department of Industrial Relations noted that, in addition to the fact that a very low number of complaints were received from outworkers, it was Departmental policy to secure compliance through voluntary action in the first instance. This approach was successful such that most complaints (c.95%) were resolved through mediation rather than through prosecution and it was for this reason primarily that the number of prosecutions was low. [8]

1.11 In relation to response time for investigation of complaints, the Department of Industrial Relations provided the following supplementary information with regard to the federal Clothing Trades Award. In the first half of the financial year 1995/96, one third of the complaints received were finalised within three months. As at 31 March 1996, the Department had 26 complaints relating to the award on hand. Of these 12 (46%) were less than 3 months old; 10 (39%) were 3-6 months old; 4 (15%) were 6-12 months old; and no cases were over 12 months old.

1.12 Taxation

1.13 Taxation is a major issue for outworkers, particularly as there is considerable confusion as to whether they are employees or self-employed. [9] If outworkers are employed under a contract of service, their employer is required by law to deduct PAYE tax from wages earned. Because the chain from retailer through manufacturer to contractor and on to outworkers is often complicated, identifying the party responsible for tax deduction and payment is also difficult.

1.14 In the minds of outworkers, taxation compliance is complicated by other matters (such as late payments and eligibility of deductions) and is made more complicated by the system of provisional tax. Declarations of total tax liability by outworkers are also complicated by the link between tax file numbers and social security payments. Outworkers who have been coerced into applying for social security benefits may be unwilling to declare home-based income because of the possibility of being charged with fraud.

1.15 The TCF Union media campaign found that outworkers were particularly concerned about their tax status and may need to be 'brought into the formal economy without being penalised'. [10] This, the Union proposed, would involve some sort of retrospective taxation amnesty for outworkers.

1.16 In the soft furnishings area of outwork Mr David Kirner, CFMEU Assistant Secretary, explained to the Committee that tax avoidance was widespread throughout the industry, not just at the level of outworkers:

1.17 Finally, however, it should be noted that while many outworkers appear to not fully understand their responsibilities with regard to taxation, some are well appraised of them. At one outworker home in Melbourne visited by the Committee during inspections, members were shown current provisional tax notices for husband and wife, both of whom stated that they earned all their income through garment sewing as self-employed 'contractors'.

1.18 Reportable Payments System

1.19 The Reportable Payments System (RPS) was introduced by the Australian Tax Office on 1 December 1994. The System was designed specifically to capture non-complying taxpayers in industries with high levels of tax evasion and it was initially applied to the fishing and clothing industries. It has been estimated by the Tax Office that tax evasion on the clothing industry is between $80 and $100 million. [12]

1.20 The RPS System is an income reporting system which draws on elements of the PAYE, PPS and Tax File Number (TFN) provisions of income tax legislation. Under the scheme, Payers are required to report details of all payments annually to the Tax Office, including the name, address and TFN of the Payee as well as the amounts paid. [13] Payers must sent any amounts deducted to the Tax Office where they are credited for assessment against the TFN quoted.

1.21 Payees may quote their TFN to their Payers using a Reportable Payments Declaration form which is then sent to the Tax Office for verification. If the TFN is not provided then the Payer must deduct tax at the highest marginal rate (currently 48.4%). The System does not distinguish between particular types of payees such as outworkers.

1.22 In terms of the clothing industry, this means that all garment wholesale companies should have reported to the Tax Office all payments made to manufacturing companies or to individuals involved in the making of their garments. The System applies to all parts of the garment manufacturing process, including designing, cutting, pattern-making, sewing, clipping, making-up and embroidery. [14] Thus a retailer who buys and sells ready to wear clothing and has no involvement in the manufacturing process will not be reportable whereas a retailer who contracts a company to manufacture the clothing will be reportable. For four years prior to the introduction of the System, all major clothing companies (some 150) were audited to establish a production expenditure norm.

1.23 All company returns for the System had to be lodged by August 1995 and the first full year for of reporting was the 1995/96 year. Research by the Tax Office indicated that there were some 18,000 entities who would potentially have obligations as payers and up to 70,000 entities who would have obligations as payees. By the end of June 1996, the Tax Office had registered some 6168 payers and identified 22,026 payees in the clothing industry who had indicated that they had obligations under RPS. By the end of September 1996 these figures were 6695 and 24,657, respectively. [15]

1.24 When questioned about the discrepancy between the ATO's estimate of about 70,000 payees (outworkers) and the some 25,000 who had so far registered, the ATO responded that the previous strategy used to increase participation rates was based on field work to identify and register industry participants with RPS Payer obligations. In the light of results so far achieved, and the shortcomings of the method used, the ATO had recently modified its strategy and was now concentrating on an 'extensive examination of industry participants to determine who they pay and and/or who they are paid by'. [16] This information was then followed up with a site visit. Since the introduction of RPS in the fishing and clothing industries, additional revenue attributable to it has been estimated at $77 million.

1.25 Mr George Napper, managing Director of My Garment Company, described the System as ultimately 'inescapable' [17]

At 30 June this year all the returns have to be in for all those processes to the tax office by 30 August. At that time, parliament will have access to all the information. It will have access to the amount of money, who it was paid to, who it was paid to by whom, who received it, how much, how much was their total income, what was their tax liability and how many they were.

1.26 Mr Napper suggested to the Committee that the System could be extended to apply along the full length of the garment manufacture process so that companies could be required to report individual Workcover policy numbers or superannuation policy numbers. The mechanism was there in existence: it was now up to the Government to make use of that mechanism to regulate the outworker sector. [18]

1.27 Noting that most people working as outworkers in the garment industry were relatively recent migrants, the Welfare Rights Centre was critical of the Reportable Payments System on the basis that there had been insufficient information made available to community groups to educate outworkers on how the System would work. [19] The Welfare Rights Centre also expressed concern about the data matching system between the Australian Tax Office (using the Reportable Payments Scheme) and the Department of Social Security if the System was altered to use names, which among Vietnamese people, for example, could be very similar or the same, instead of tax file numbers. [20]

1.28 Social Security Benefits

1.29 Some outworkers receive social security benefits, either because they move into outwork from benefits and fail to cease taking the benefits or, as alleged by the TCF Union and others, because they are coerced into it by unscrupulous intermediaries. [21] In this scenario, potential outworkers are told by intermediaries that because the rates of pay for sewing are so low, they will need to receive social security benefits in addition to their outworking income; in other words, that they must register for benefits before they will receive any work. However, once the outworker is receiving welfare benefits, the intermediary is then able to use this information as a lever to coerce the outworker into accepting even lower rates of pay or completing jobs sooner than originally requested.

1.30 In estimating the number of people who may be involved in fraud of this type, the Union stated in evidence to the Committee:

If one takes the assessment of the Department of Social Security as being reliable, it would seem that 7½ per cent of outworkers may be receiving social security benefits to which they are not entitled, either in whole or in part. If the Tax estimate is correct, there are about 4,000 beneficiaries of social security benefits who should not be getting part or perhaps all of it. [22]

1.31 In response to representations made by the Union, the Department of Social Security declared an amnesty for garment industry outworkers so that their level of benefits could be re-appraised without penalty. The amnesty operated for 6 months from 1 December 1996 to 31 May 1996 and was advertised widely in a variety of ways including extensive use of ethnic media and multilingual leaflets. [23] According to information provided by the Department, as at mid-June 1996, 33 people who worked in the clothing industry had applied for the amnesty.

1.32 A number of witnesses before the Committee were critical of the results of the amnesty. Among them was Ms Debbie Carstens of Asian Women at Work who commented that the amnesty had the potential to bring many outworkers into the formal employment sector but that there had been a lack of clear information given to community workers about the amnesty and a lack of information put into community languages. In addition, there had been insufficient time for outworkers to find out about the amnesty and take action. The lack of time was particularly significant because it took considerable time for information to filter through the outworkers network and for outworkers to overcome their fear of interacting with government agencies. They also had to overcome the misinformation provided to some of them by their 'employers'. [24]

1.33 The Working Women's Centre commented in its submission:

1.34 The Welfare Rights Centre (NSW) also criticised the amnesty in evidence to the Committee, stating that the campaign had been a failure due to poor publicity:

1.35 A related issue is that of the time period during which new migrants are ineligible to apply for welfare benefits. Currently, migrants to Australia must wait for a 6-month period before applying for social security benefits. However, the Government is currently considering extending this period to two years. The Welfare Rights Centre, in evidence to the Committee, noted that if such a provision were introduced, it may force many new migrants who became desperate for finance into exploitative employment situations such as underpaid outworking in the garment industry. [27]

1.36 In addition to the amnesty, the Department of Social Security commenced a data matching project linking welfare recipients with the Reportable Payments System established by the Australian Tax Office. Preliminary results for TCF industries, provided to the Committee just before completion of the this report, are as set out in the following table. [28]

1.37

Reviews Selected 1872
Reviews Completed 874
Downwards Variations (including cancellations and suspensions) 69 (7.9%)
Suspensions/Cancellations 51 (5.8%)
Overpayments Raised 156 (17.9%)
$ Amount 275,000

1.38 Labour Adjustment Program (LAP)

1.39 The Labour Adjustment Program was established to assist employees retrenched from TCF industries as a result of restructuring to find alternative employment. It applies only to people employed before July 1994.

1.40 Outworkers have had a low participation rate in programs such as LAP and evidence was given to the Committee that this was for two main reasons: first, lack of knowledge that such programs were available; and second, previous political experience and social backgrounds, often involving refugee status, that have made outworkers wary of becoming involved in any government sponsored activity for fear of reprisals for past breaches of taxation or social security entitlements. [29]

1.41 However, the importance of the LAP program was outlined in evidence to the Committee by Ms Carstens who stated:

1.42 In its submission, the Union expressed concern that people employed after July 1994 were ineligible for inclusion in the program and that some retrenched clothing workers had been excluded from the program on the basis that they had found short-term work outside the industry. The Union thus recommended that the LAP program continue unrestricted to factory workers and outworkers. [31]

1.43 ILO Convention

1.44 Conditions experienced by people performing paid work at home have been of concern to authorities in other countries and on 28 June 1996 delegates to the 83rd Conference of the International Labour Organisation (ILO) voted to adopt a Convention on Home Work, supplemented by a Recommendation.

1.45 The Convention and Recommendation calls on signatories to establish guidelines on health and safety and hours of work for home-workers, including precautions that should be observed by employers and outworkers to avoid hazards associated with the work, to ensure adequate training is provided, and to ensure that delivery times do not preclude adequate daily and weekly rest periods. [32]

1.46 In evidence to the Committee a number of organisations urged that Australia support the convention and to be a leading nation in its implementation. [33] The Convention was passed in June. However, Australia abstained from voting. If Australia were to sign the Convention, the Government would then have to adopt, implement and periodically review a national policy on home work aimed at improving the situation of homeworkers, in conjunction with the most representative organisations of employers and workers. The national policy on home work would promote, as far as possible, equality of treatment between homeworkers and other wage earners taking into account the special characteristics of home work and, where appropriate, conditions applicable to the same or a similar type of work carried out in an enterprise. [34]

1.47 In contrast to the views held by community groups, employer groups argued in evidence to the Committee that the international regulation of home work through an ILO Convention was premature and inappropriate. The submission from the Victorian Employers' Chamber of Commerce and Industry outlined these concerns:

While Employers are sympathetic to the need to protect the most vulnerable groups of workers in society, we have grave reservations about the content, scope and practicability of this instrument to achieve the level of protection appropriate to those who actually need it. [35]

1.48 Specific criticisms about the Convention and its Recommendation also included concerns that:

State Government Action

1.49 Two submissions were received by the Committee from state governments (NSW and Queensland) which outlined action that had been taken to address problems associated with garment industry outworkers.

1.50 New South Wales

1.51 Since 1993 the NSW Government has conducted three separate task force inquiries into the clothing industry and has established a Clothing Industry Strategy Group which had the objective of examining methods by which Government could facilitate industry self-regulation through on-going education. One result of the Strategy Group has been the production of a 'plain English' information booklet for outworkers which was translated into Vietnamese. It success has led to a proposal to translate it into other relevant languages, such as Chinese. [37]

1.52 The NSW Government submission noted that while its task force has had considerable contact with industry workers, outworkers were highly reluctant to seek assistance from Government agencies and no complaints had been lodged by outworkers with the Department of Industrial Relations. The NSW Government concluded that: 'general enforcement activities alone are inappropriate in attempting to locate and assist outworkers'. [38]

1.53 The NSW Government submission also outlined a number of other proposals to assist outworkers:

Queensland

1.54 Following concern about outworkers highlighted in the TCFUA report, The Hidden Cost of Fashion, the Queensland Government's Bureau of Ethnic Affairs formed a reference group to identify problems confronting outworkers in Queensland and to develop strategies to address them. From this, the Vietnamese Outworker Assistance Group (VOAG) was formed with representatives from the Women's Health Centre, the Bureau and local Vietnamese communities.

1.55 On finding that outworkers did not have access to information about the employment entitlements, VOAG produced a pamphlet in both English and Vietnamese and distributed it through relevant community groups. Feedback from the pamphlet revealed that outworkers were very concerned about social security and taxation issues and that they did not feel able to pursue training courses.

1.56 Contravention of Local Council Regulations

1.57 Finally, the Committee notes that the use of homes and garages for outwork may contravene local council regulations. [39] Normally, regulations prohibit 'sweatshop' activities in residential areas and registration of domestic premises is required if they are to be used for business purposes. However, in the case of home-work it is often difficult for councils to make a distinction in practice between a small sewing business being run from within a home and a house (or more often a garage) that is being used as a 'sweatshop'. For example, while the City of Greater Dandenong Council defines a 'Home Occupation' operation as one where there is no more than one non-resident working at the house, finding out exactly who is working in the house may prove difficult, if not impossible in practice.

1.58 The City of Greater Dandenong Council receives complaints from residents on a regular basis that 'sweatshops' were being operated in residential areas. The Council follows up such complaints with an inspection and while some complaints are found to be valid, some are not. [40] Problems associated with the operation of 'sweatshops' in residential areas include noise from machinery and noise associated with the loading and unloading of vehicles, particularly late at night and early in the morning, and the use of electrical fittings adapted to take a capacity far in excess of normal residential loads which caused interference with television reception. [41]

1.59 Conclusions and Recommendations

1.60 The Committee concludes that enforcement by government agencies of compliance with award wages and conditions has declined considerably in recent years, being more reactive than proactive, and that this in itself has contributed to an increase in the level of non-compliance. However, the Committee acknowledges that the level of non-compliance in TCF industries is exacerbated by an unwillingness on the part of outworkers to report non-compliance and to have government agencies involved in the circumstances of their employment.

1.61 The issues of taxation obligations and eligibility for welfare benefits are of concern to some outworkers, particularly those who may have been coerced into infringement of taxation obligations or welfare entitlements, although the degree to which such infringements are occurring is not clear. As evidenced by the introduction of the Reportable Payments System and the Social Security amnesty for outworkers, these issues are clearly also of concern to the relevant government instrumentalities.

1.62 The Committee strongly believes that the Australian Taxation Office could take greater advantage of the Reportable Payments System to fully investigate taxation avoidance in TCF industries. The Committee notes that an important additional benefit of the Reportable Payments System is that it will assist in identifying all parties involved in the garment manufacturing chain, particularly those at the level of intermediary. In addition, the Committee notes that information gained from the Reportable Payments System is able to be used by the Department of Social Security to investigate welfare benefits fraud.

1.63 The Committee concludes that the Social Security amnesty for outworkers has been of limited success because of the difficulties associated with conveying information to outworkers and with their reluctance to become involved with government agencies. The Committee believes that the amnesty had merit. The Committee recommends that the Government consider reinstating an amnesty for outworkers for a period to allow community groups sufficient time to communicate with outworkers and to persuade them of its benefits. The Committee further recommends that funding from the TCF 2000 Development Package be made available for community groups to inform outworkers of the amnesty.

1.64 The Committee notes that despite a low participation rate, the Labour Adjustment Program has been of benefit to a number of people in TCF industries who would otherwise have continued to be employed as outworkers in undesirable circumstances. The Committee believes that more outworkers would benefit if the cut-off date for prior employment was extended from July 1994 to some appropriate date in the future. The Committee therefore recommends that the government consider extending the cut-off date for prior employment of the Labour Adjustment Program to a date in the future to be determined in consultation with the TCF Union.

1.65 The Committee notes that Australia has not become a signatory to the ILO Convention and Recommendation on Home Work, but that the Government is currently undertaking consultations with the states, the Australian Chamber of Commerce and Industry and the ACTU with a view to presenting a report to Parliament on this matter by the end of June 1997. The Committee will review the Government's position in relation to the ILO Convention on Home Work in 12 months time.

Footnotes

[1] These provisions are contained within clauses 26, 27, 27A, 29 and 30 of the Clothing Trades Award 1982, clauses 27, 40 and 42 of the Textile Industry Award 1994, clauses 31, 33 and 41 of the Footwear Manufacturing and Component Industries Award 1979, and in corresponding provisions of the counterpart state awards.

[2] Evidence, p. E 647.

[3] See for example Evidence, pp. E 168, 224, 549.

[4] Evidence, p. E 256.

[5] Evidence, p. E 168.

[6] Evidence, p. E 196.

[7] Evidence, p. E 224.

[8] Evidence, p. E 657.

[9] Evidence, p. E 505.

[10] Textiles Clothing & Footwear Union of Australia The Hidden Cost of Fashion - Report on the National Outwork Information Campaign. March 1995. p. 19.

[11] Evidence, p. E 561-2.

[12] Evidence, p. E 595.

[13] Note: The RPS system defines industry participants who make reportable payments as Payers and those who receive reportable payments as Payees. Some participants may be both Payers and Payees.

[14] Note: Footwear is outside the scope of RPS and payments made of a private nature are also outside the scheme.

[15] Evidence, p. E 595, and Letter received from the Australian Tax Office 27 November 1996.

[16] Letter to Committee dated 4 December 1996 from David Butler, First Assistant Commissioner, Australian Tax Office, p.2.

[17] Evidence, p. E 71.

[18] Evidence, p. E 77.

[19] Evidence, p. E 202.

[20] Evidence, p. E 210.

[21] Evidence, pp. E 156, 169, 754.

[22] Evidence, p. E 898.

[23] Evidence, p. E 629.

[24] Evidence, p. E 224-5, see also Evidence, p. E 156, 525, 743.

[25] Evidence, p. E 171.

[26] Evidence, p. E 201.

[27] Evidence, p. E 207.

[28] Source: Letter dated 26 November 1996 from Ian Carnell, First Assistant Secretary, Compliance, Fraud & Teleservice, Department of Social Security.

[29] Evidence, p. E 916-917; see also Textiles Clothing & Footwear Union of Australia The Hidden Cost of Fashion - Report on the National Outwork Information Campaign. March 1995. p. 21.

[30] Evidence, p. E 226.

[31] Evidence, p. E 28.

[32] Evidence, p. E 91.

[33] Evidence, pp. E 276, 301 (ACTU), E 92 (Worksafe Australia), E 171 (Working Women's Centre, NSW), E574 (CFMEU), E 525 (Dale Street Women's Health Centre). Support for the convention was also expressed in the TCF Future Strategies Committee Report Future Strategies for the Textiles, Clothing and Footwear Industries 1996-2000. December 1994, p. 16.

[34] The Home Work Convention 1996, Articles 3 & 4.

[35] Evidence, p. E 416.

[36] Evidence, p. E 416-420.

[37] Submission No. 38, p. 3.

[38] Submission No. 38, p. 4.

[39] Evidence, p. E 61, 253, 768.

[40] Evidence, p. E 769-770.

[41] Evidence, pp. E 559, 775, 777-8.