Modern Slavery

Hidden on Site:

Managing Modern Slavery Risks in Construction

By Alison Rahill, Executive Officer, Anti-Slavery Taskforce, Catholic Archdiocese of Sydney

There are many risks to manage on a construction site.

With the expansion of labour-hire and the temporary migrant workforce in recent years, an age-old risk has re-emerged in a new form.

Slavery. To say that word in 2021 seems shocking and unbelievable. Sadly, modern slavery, as it’s now called, is a global phenomenon. The risks are real, and they’re rated as high in the construction sector. And because of recent Australian legislation, the risk of modern slavery is another risk Australian construction companies must manage.

The Modern Slavery Act

The Modern Slavery Act (2018) requires commercial and charitable entities with over $100 million annual consolidated revenue to prepare annual Modern Slavery Statements. The Act covers an estimated 3,000 businesses, including many of Australia’s major construction companies and property developers. Every year reporting entities under the Act have to prepare a Statement on their efforts to assess and address modern slavery risks in their operations and supply chains. These Statements are published online on the Commonwealth Modern Slavery Register, where anyone can search, review, and download them. The Hon. Jason Wood MP is responsible for leading the Australian Government’s response to modern slavery. In his role as Assistant Minister for Customs, Community Safety and Multicultural Affairs, Minister Wood has emphasised the positives of proactive engagement. “Taking action can strengthen the overall integrity and quality of your supply chains, improve your access to business opportunities, strengthen your relationship with workers and investors, and bring reputational rewards,” said Mr Wood. “Taking action, no matter how small it may seem, will help us to reduce the number of people working as modern-day slaves around the world. “Furthermore, entities that fail to take action can leave themselves exposed to reputational and legal risks.”

Construction Sector Risks

No business sets out to construct buildings using labour or materials made by people experiencing modern slavery. But often, there’s not enough information to make informed decisions. The complex nature of construction operations and supply chains, including high subcontracting rates, means that people experiencing modern slavery can be “hidden in plain sight” – either on Australian construction sites or far away in other countries. Migrant workers engaged through subcontractors in the construction sector are more vulnerable to exploitation due to limited language skills, lack of understanding of work rights, shortterm contracts, fear of retaliation, and cultural issues. There are up to 100 indicators to look for when it comes to modern slavery. Workers who are living at the workplace. Workers who are being restricted from contacting or interacting with others. Workers who are fearful of others, who have no money or little food. All of these can be signs of an illegal, coercive relationship. It’s frighteningly easy for people to be recruited from overseas on false pretences and to find themselves in this situation, particularly when the carrot is the promise of better income to support their struggling family. Then there’s the risk associated with materials used in construction projects. Bricks, timber, stone, steel, tiles, and carpet carry high modern slavery risks, especially when imported from overseas. In this case, the risks include child labour. Even seafarers on the ships that carry goods to and from Australia are at risk of modern slavery.

Cascading Compliance

While modern slavery reporting obligations rest with Australia’s largest construction businesses (including investors), their due diligence is also expected to affect small to medium enterprises. Large businesses are developing risk profiles of suppliers and spend categories that will inform their ongoing supplier engagement. So, SMEs will need to understand their lead contractors’ expectations around managing modern slavery risks. In the near future, procurement teams will be seeking information from their suppliers about how they are managing modern slavery risks and what measures they are taking to assess, address, monitor and report on risks in their extended supply chains. Modern slavery clauses are already being integrated into tender documents, policies, contract clauses, Codes of Conduct, questionnaires, and other reporting tools. Anti-slavery initiatives such as desktop and site audits, worker interviews and sector-wide campaigns are common practice in a number of overseas jurisdictions. They’re likely to happen here in Australia too.

Building Links

While the prospect of a more significant compliance workload may be daunting, there is good news for beleaguered building site managers.

The Australian Government is funding a program called Building Links to raise awareness of the risks of modern slavery in the construction sector.

The Building Links toolkit is designed to encourage reporting of potential risks and ‘near misses’.

The toolkit draws parallels in risk management between WHS and modern slavery, encouraging supervisors to: • Identify risks of harm to people, assess and address them • Ideally taking action before a risk becomes an incident • Encourage people to report ‘near misses’ — in WHS terms, a wobbly ladder, not a fall • Work on the assumption of ‘when we find it’ not ‘if we find it.’

The Building Links toolkit also gives participants a new lens on potential situations of forced labour — scenarios that many will have come across on building sites — that could have been cases of modern slavery in hindsight.

Armed with an understanding of indicators of modern slavery unique to the construction Issue Three | July-September 2021 | MBA NSW 29

sector — Building Links also provides a mechanism for industry participants to access confidential advice and support via a safe conversations app and an e-learning module accessible via smartphone. There are posters with QR codes available to put up on building sites. People who want to reach out can anonymise chats, similar to WhatsApp, with all contacts fully encrypted and untraceable. It is a safe way to have a conversation, get support and advice via Domus 8.7 — an independent organisation of modern slavery specialists working as an agency of the Catholic Archdiocese of Sydney.

Understanding the signs

“I have coordinated the Building Links program from its inception.” The biggest challenge we face is how to reach people experiencing labour exploitation when retaliation against workers who speak out isn’t just a threat, it’s a reality. It’s important to seek specialist advice about how to safely engage without making a situation worse for workers already in a difficult situation. In the construction sector, one complicating factor is the many layers of subcontracting. Workers may only be on site for a few days. That’s why Building Links trains site managers in the warning signs of modern slavery and equips them with the skills to respond to potential cases safely and effectively. It might be people experiencing overcrowded accommodation, or little to no pay, no access to cooking facilities, or no money to buy lunch. It can also be subtle things: like not making eye contact, or never asking questions or a sense of being controlled. Often, there’s an alpha controller of a small group of workers. Do these workers have freedom of their possessions? Are they in control of their own wallets and mobile phones? All of these are possible indicators. Domus 8.7 can provide social services, crisis accommodation or emergency transport, and legal support such as migration advice. The fight against modern slavery is likely to be a long one. But as Minister Wood reminds everyone, this due diligence has an important purpose. “To put an end to this abhorrent crime, we all need to play a role in preventing modern slavery. The construction industry has a vital role to play,” said Mr Wood. “Over the past decades, we have seen the construction industry drive transformative change in areas like OH&S and environmental safeguards. “We all need to work together to ensure we meet this next challenge on combating modern slavery. “Together, we can build a community free from modern slavery.” Building Links resources and a 7-minute online training video are free to all construction sector participants via: https://www.acan.org.au/modernslavery

For information on Domus 8.7

https://www.acan.org.au/domus87

Commonwealth Modern Slavery Register

https://modernslaveryregister.gov.au

INDICATORS OF MODERN SLAVERY

A combination of these signs may indicate a person is in a situation of modern slavery:

• living at the workplace or another place owned/controlled by their employer • underpaid or not paid at all • excessive hours of work • confined or isolated in the workplace • restricted from contacting or interacting with others, controlled • subject to different or less favourable working conditions than other workers • unable to terminate their employment • servicing a debt to an employer, recruiter or a third party • subjected to, or threatened with, violence (including harm to self, other workers, family members) in connection with their employment • threatened with other detrimental actions such as arrest or deportation • identity documents held by an employer or third party • deceived about the nature and conditions of their employment • no contract, unfair contract or unable to understand the terms and conditions of their employment • not provided with any protective equipment or training • do not have permission to work or appear to be working in breach of visa conditions.

BUILDING LINKS CONSTRUCTION INDUSTRY TOOLKIT

Building Links – “who do you see on site?”

This Building Links toolkit includes an online learning video and posters for the construction sector to help identify and respond to workers at risk of labour exploitation. Watch this 7 minute Building Links online learning video for site supervisors and project managers. Learn how and when to respond to situations like this:

Case study:

A sub-contractor was exposed for charging illegal visa fees and underpaying wages to a group of migrant workers. The workers were promised good wages, board and lodging, but the company stopped paying wages after six weeks. With no wages, the workers became homeless and were forced to sleep on an office floor. Property, Construction & Modern Slavery KPMG 2020

Speak up for Yourself or Others:

Contacting Domus 8.7 is a way for anyone onsite to speak up anonymously and access expert advice without fear of making a situation worse. We Protect Your Identity:

Using the app helps you share information without telling us who you are. You have choice and control.

About Domus 8.7:

Domus 8.7 provides confidential advice, access to specialist services and timely solutions. Domus 8.7 is an independent organisation that provides help for workers in situations of extreme labour exploitation.

To speak with us directly call 02 9307 8464 OR Download the App 1. Use your smartphone camera to scan the QR code 2. Tap the prompt to download the Whispli app 3. Open the app, and follow the instructions to create your account 4. Click on the QR code again to chat with Domus 8.7 specialist staff

antislavery@sydneycatholic.org tel +61 2 9307 8464 acan.org.au/domus87

Cooler heads will prevail —

Tribunal finds that direct notice of termination of a home building contract is not required

It is not uncommon in home building projects for disputes to occur during the project in relation to the quality of the work carried out by the builder and in turn, a claim for outstanding money by the builder often results. Inevitably, this can lead to the contract coming to an end by way of abandonment, termination or repudiation if the parties do not resolve their differences.

If the matter proceeds to a Court or Tribunal, the first issue to be determined is: • whether the contract is still on foot; • whether the contract has been terminated; and • if the contract has been terminated, whether the termination was valid. The answers to these questions will dictate the parties’ entitlement to claim damages (and the types of damages) and ultimately, the outcome of any legal proceedings. In an ideal world, the terminating party would issue a notice of breach or default under the contract, which would result in a termination of the contract if the breaches or defaults are not remedied. Building cases are rarely this clear cut and more often than not, the Courts and Tribunals have to consider the conduct and communication between the parties in order to ascertain whether the contract is still on foot, or whether it has been terminated validly or otherwise. In a recent case in the NSW Civil & Administrative Tribunal (Tribunal) the Tribunal dealt with this very issue of termination of a home building contract by the Owners in the absence of any direct notice to the Builder and also considered what communication or conduct would give rise to a finding that the contract was no longer on foot.

The first Tribunal determination

1. The Owners entered into a home building contract with the Builder to carry out renovations at their property in Frenchs

Forest (Site). 2. Disputes arose during the course of the Project in which the Builder and

the Owners were having regular heated arguments in relation to the works carried out by the Builder. 3. After one of the final arguments, the

Builder ceased carrying out the building works at the Site and removed all of his tools and materials. 4. In the first instance, the Tribunal found that the Builder abandoned the Site before completing the building works and thereby repudiated the contract. 5. The Owners made a claim against the

Builder under the Home Building Act 1989 (NSW) (HBA Act) for costs to complete the building works by another builder as a consequence of the Builder’s repudiation of the contract and its termination by the Owners. 6. The Tribunal held that even though the

Builder had repudiated the contract, the contract still remained on foot because the

Tribunal was not satisfied that the Owners had terminated the contract by accepting

the repudiation of the Builder. 7. The Tribunal found that there was no evidence relied upon by the Owners that they accepted the Builder’s repudiation by their conduct of engaging another builder and further, there was no evidence that the Builder knew that the Owners were engaging another builder. 8. The Tribunal decided against the Owners and concluded that the Owners had not established that the Builder had breached the contract by reason of the incomplete works and determined that the Owners had not suffered any loss in relation to their claim for the costs of completion of the works by another builder. 9. The Tribunal ordered that the Builder was only liable to pay the Owners the sum of $34,954.80 for overpayments for variations and defects and not the costs of completion.

The Appeal

10. The Owners appealed the determination on the basis that the Tribunal was wrong in failing to find that the contract had been terminated. 11. The Appeal Panel upheld the Owners’ appeal and found that the Tribunal did

determine this issue incorrectly. 12. The Appeal Panel said that the Owners’ commencement of the proceedings and service of their claim on the basis of termination for breach can be regarded as communication of the Owners’ acceptance of the Builder’s repudiation and subsequent termination.

Quantum of damages

The Appeal Panel then went onto assess the amount of damages. The Appeal Panel decided against the Builder and assessed the damages owing by the Builder to the Owners in the amount of $187,280.24 (which included the costs of completion) plus the Owners’ costs.

What does this mean for residential builders?

• contracts need to be terminated carefully as the Courts and Tribunals will consider any communication or conduct between the parties in determining whether a contract has been terminated in the absence of any written notices or communication; • in this case, the Builder ceasing work and removing its tools and materials without any other communication was sufficient to

demonstrate the Builder’s repudiation of the contract which the Owners accepted in the commencement of the legal proceedings and in their pleadings also filed in the legal proceedings; • builders need to be mindful that any conduct or communication that demonstrates an intention to no longer be bound by the contract would amount to a repudiation without necessarily obtaining any notice of the owner’s acceptance until well after the fact; • what follows from this is that if the contract is not validly terminated it can affect the parties’ entitlements to damages breach of contract; • by way of example, if the owner terminates the contract, the builder would need to prove that the termination was wrongful in order to claim any loss of profits, demobilisation costs and loss of wages etc; and • obtain legal advice before terminating a contract is key.

Stefanie Dunnicliff | Senior Associate Bradbury Legal stefanie@bradburylegal.com.au www.bradburylegal.com.au

EFFORTLESS, BEAUTIFUL LIVING

Conversations about life, health and safety: Social supports for young construction workers

What is the project about?

The Master Builders Association (New South Wales) is currently partnering with researchers from RMIT University and the Australian National University, and the New South Wales Government Centre for Work Health and Safety in a project examining the best way for construction firms to provide healthy, safe and supportive workplaces for young construction workers, particularly apprentices. This work is being funded by icare NSW under the Injury Prevention in Construction (IPIC) initiative. The work is focused on improving communication between supervisors and construction apprentices in relation to workplace safety, health and wellbeing. This is important because young workers experience a disproportionately high frequency of workplace injury, and the risk of workplace injuries is further elevated when young workers enter the construction industry (Safe Work Australia, 2013). In addition, construction apprentices are a high-risk group for psychological distress and poor mental health (Pidd et al., 2017; Ross et al., 2020). As the planners, organisers, and facilitators of daily work activities, supervisors play a key role in providing practical guidance and demonstrating healthy and safe ways of working, role modelling good behaviour and acting as mentors to apprentices as they progress through their training. Supervisor support has been identified as being critical to young workers’ health and safety at work. Yet, international research suggests that young workers are sometimes hesitant to ask questions or raise concerns about workplace health and safety because they perceive that their voice may not be heard or acted upon by their supervisors (Tucker et al., 2014). Young workers are more likely to engage proactively in workplace health and safety activities when they have a supervisor who is approachable and who they feel comfortable talking to (Zierold, 2017). The availability of social support from supervisors and others in the workplace is also important for apprentices’ mental health and wellbeing (Buchanan et al., 2016). What have we done so far?

During the project’s first year, 41 interviews were conducted (30 with apprentices and 11 with supervisors from training employer organisations). The data was analysed to: • understand the way that supervisors and apprentices talk about life, health and safety, • identify the characteristics of supportive interaction and supervision of apprentices, and • identify organisational or context-related drivers of conversation failure. What did we find?

supportive communication between apprentices and their supervisors. These are shown in Figure 1. Apprentices indicated they are comfortable talking openly about work health and safety when their supervisors are approachable, adopt a participative management style, are good at listening and respond quickly when apprentices request help.

“You’re never made to feel bad about anything. Like I said, on top of that, if you’re at work and you have any concerns, or you need them to come down and explain a job, or what things do, they’re always — if it’s not straight away —they’re only minutes away.” Apprentices are also more likely to engage in work health and safety-related communication when they feel they have a good baseline level of health and safety knowledge (often learned at TAFE) and are confident and assertive.

“I’ve got all — like confined space training and things like that, that I’ve been asked to do tasks, and I haven’t been like pressured into it. It’s more just me saying, ‘Well yeah,

I’ll do it, but you just need to make sure that all the correct gear’s here.’” Emotional intelligence, that is “the ability to monitor one’s own and others’ feelings and emotions, to discriminate among them and to use this information to guide one’s thinking and actions” (Salovey & Mayer, 1990, p. 189),

Figure 1: Characteristics of effective communication and social support

was important for both apprentices and their supervisors. Some supervisors explained that if they observe changes in apprentices’ mood or behaviour, they initiate a conversation to make sure that the apprentice is okay. Some apprentices appreciated supervisors’ concern and emotional support, while others preferred not to talk about personal issues with their supervisors. Supervisors identified the importance of being sensitive and respectful of apprentices’ preferences in relation to discussing personal matters that may be affecting them.

“So, if I can see there’s something wrong, and I think that might be — something mightn’t be right — I’ll ask them, ‘Is everything okay? You know, you’re not your usual self.’ I won’t push ‘em, but I’ll definitely ask because, at the end of the day, I’d rather ask the question than not ask the question. Some say, ‘Yeah, I’m fine’, but some will open up.”

“I went into a bit of a depression stage a few years back, and he was always there for me, and with work, he was very understanding; he knew that I could get back to my best, so he was — yeah, I could talk to all that’s — about that stuff with him… He was just — if I needed time to myself at work, he allowed me to have that, and he was — if I needed to start later/finish later, he was happy to accommodate working around myself, which was really good at the time.” Some supervisors draw on their own personal experiences to empathise with apprentices when they become aware that an apprentice is experiencing personal difficulties. “…a kid with a divorce, my parents are divorced as well actually. And I sort of, ah, used some of my life experiences. He was going through a very similar situation — as what I did at the same age, and I just sort of gave him my perspective on what happened to me when my parents got divorced.”

Positive and supportive supervisor-apprentice communication is characterised by respect and civility. The results were mixed in relation to the extent that supervision is respectful. Some apprentices described their supervisors as being patient, non-judgemental and willing to take time showing them how to perform a task even if this took several demonstrations. However, other apprentices had observed workers being yelled if they made a mistake. Incivility and verbal aggression (yelling) were also reported in another recent study of Australian apprentices, which linked such experiences to mental ill-health and apprentices’ failure to complete their apprenticeship (Einboden et al., 2021).

“…usually if I’ve made a mistake, he’ll come along and say, ‘Oh, look, like, that’s... that’s not right. This is the way to do it’ and coaches me through it… like, he’s... he’s pretty calm. He just goes like, ‘you’ve done it wrong. You’ll need to redo it.” Banter and joking are deeply ingrained features of worksite communication. Humour can relieve stress and create social cohesion in a workplace (Romero & Cruthirds, 2006). However, in some instances, teasing can be seen as funny by one person while being hurtful to others. The apprentices dismissed humour as ‘just a bit of banter’ and suggested that, even if it is taken too far, it is not intended to make people feel bad and can be resolved by explaining it was ‘just a joke’. However, research shows that, even when no harm is intended, mildly aggressive humour (including teasing) can produce negative mental health impacts (Hogh et al., 2005). The interviews revealed that female apprentices are often the targets of on-site banter. While female apprentices join in with this banter and accept it as an inevitable part of working in the construction industry, the sex-based nature of worksite humour can have the effect of ‘othering’ female apprentices (Watts, 2007).

“Well, it was... it was kind of bad, but if you don’t have a sense of humour with the boys in this industry, you generally will not get along with them. Like they will somewhat hurt you, like rattle you in a way, but then at the same time you’re like, ‘I’m going to hear this for the rest of my life from other people.’” — female apprentice

What are the next steps?

The interview findings will be used to inform the design and delivery of a development program focused on the characteristics of supportive and positive supervisor-apprentice communication. This program aims to improve the quality of communication between construction apprentices and their supervisors in the construction industry of New South Wales in ways that better protect apprentices’ health and safety at work and in life outside work. In the project’s next stage, the communication program will be delivered to the Master Builders Association (NSW) cohort of apprentices and a smaller sample of supervisors. The program’s impact in improving the quality of apprenticesupervisor communication about life, health and safety will be evaluated.

References

Einboden, R., Choi, I., Ryan, R., Petrie, K., Johnston, D., Harvey, S., Glozier, N., Wray, A. & Deady, M. (2021). ‘Having a thick skin is essential’: mental health challenges for young apprentices in Australia. Journal of Youth Studies 24,(3), 355-371. Hogh, A., Henriksson, M. E. & Burr, H. (2005), A 5-year follow-up study of aggression at work and psychological health, International Journal of Behavioral Medicine, 12(4), 256-265. Pidd, K., Duraisingam, V., Roche, A., & Trifonoff, A. (2017). Young construction workers: substance use, mental health, and workplace psychosocial factors. Advances in Dual Diagnosis, 10(4), 155-168. Romero, E. J., & Cruthirds, K. W. (2006). The use of humor in the workplace. Academy of Management Perspectives, 20(2), 58-69. Ross, V., Wardhani, R., & Kõlves, K. (2020). The impact of workplace bullying on mental health and suicidality in Queensland construction industry apprentices. Australian Institute for Suicide Research and Prevention, Griffith University. Safe Work Australia (2013). Work-related injuries experienced by young workers in Australia, 2009–10. Canberra: Safe Work Australia Salovey, P., & Mayer, J. D. (1990). Emotional intelligence. Imagination, cognition and personality, 9(3), 185-211. Tucker, S., Diekrager, D., Turner, N., & Kelloway, E. K. (2014). Work-related injury underreporting among young workers: Prevalence, gender differences, and explanations for underreporting. Journal of Safety Research, 50, 67-73 Watts, J. (2007). Can’t take a joke? Humour as resistance, refuge and exclusion in a highly gendered workplace. Feminism & Psychology, 17(2), 259-266. Zierold, K. M. (2017). Youth doing dangerous tasks: Supervision matters. American Journal of Industrial Medicine, 60(9), 789-797. Issue Three | July-September 2021 | MBA NSW 37