FRUIT PICKING IN FEAR: AN EXAMINATION OF SEXUAL HARASSMENT ON AUSTRALIAN FARMS.

• Date: 01 August 2022
• Author: Howe, Joanna

CONTENTS I Introduction II Temporary Migrant Farm Workers and Sexual Harassment and Assault A Research Methods B Incidence of Sexual Harassment and Sexual Assault on Farms 1 Official Inquiries 2 Qualitative Study 3 Conclusion III Factors Causing Vulnerability and Barriers to Justice A Immigration Status B Fear of Losing Their Jobs C Poor English Language Skills D Low Unionisation E No Legal Right to Vote F Characteristics of the Horticulture Labour Market G Accessing the Legal System H Summary IV Conclusion I INTRODUCTION

The final straw for us both was when he suggested we work naked for him, and then complained when we came back to see we both weren't naked ... We told our hostel manager that we wouldn't work for him again and explained what happened. He didn't seem too shocked or fussed. (1) This vignette from a British working holiday maker ('WHM') is one of many that have emerged since Four Corners' groundbreaking expose of exploitative working conditions on Australian farms in 2015. (2) This expose blew the lid on 'slave-like conditions' on farms, predominantly manifested through non-payment or substantial underpayment of wages via a network of highly exploitative labour hire contractors. (3) Amidst this were disturbing accounts of young women being sexually harassed, including being propositioned to perform sexual favours in exchange for work or visa extensions. In one case a victim's employment was terminated after she complained, whilst another victim's complaint was completely ignored. (4)

In October 2017, the breaking of the Harvey Weinstein scandal by The New York Times and the rise of the #MeToo movement shone a spotlight on sexual harassment at work, although this has tended to focus on white-collar workers. (5) In 2021, the accounts of Australian of the Year Grace Tame and former parliamentary staffer Brittany Higgins drew renewed focus to the vulnerability of young women and women in the workplace to sexual harassment. (6) However, the plight of low-wage workers, like the temporary migrant women described above, has largely been absent from widespread public scrutiny, advocacy and sympathy, which have tended to coalesce around more high-profile victims. (7)

Despite the disturbing examples of workplace sexual harassment provided in this opening, it is important to acknowledge that there is a wide range of behaviour that is encompassed by the term 'sexual harassment'. (8) In some cases, the behaviour is sexual assault, which may trigger a civil action or constitute a crime prosecuted by the police or the Director of Public Prosecutions. (9) Typically, in the horticulture industry, sexual assaults are the cases that have reached public attention through media reports and government inquiries. Nonetheless, it is likely that the horticulture industry also has a problem with a range of behaviours that amount to other forms of sexual harassment. Sexual harassment is typically defined in Australian legislation as occurring when the perpetrator 'makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed' or 'engages in other unwelcome conduct of a sexual nature in relation to the person harassed', in circumstances in which 'a reasonable person ... would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated'. (10) Examples of sexual harassment from the case law include physical contact, (11) display of pornographic material (12) and conduct of a sexual nature such as staring at a woman's breasts. (13) Sexual harassment is prohibited by anti-discrimination legislation, which operates through a system which is based on a highly individualised complaints process reliant upon individuals who have been subjected to sexual harassment to report it and to hold harassers and employers to account. (14)

Whilst scholars have exposed non-compliance with labour standards in the Australian horticulture industry, they have largely focused on the temporary migrant pathways into the industry, the non-payment or underpayment of wages, and occupational health and safety risks. (15) This research has established that the horticulture industry has an entrenched problem with substantial wage underpayments, (16) compounded by the difficulty in applying and enforcing the piece rates provision in the Horticulture Award 2020 (Cth). (17) In contrast, this article seeks to examine non-compliance in relation to legal standards relating to sexual harassment at work. Without further empirical research, the extent of sexual harassment cannot be definitively known and is beyond the scope of this article, but it is flagged here as an important, albeit methodologically challenging, (18) area for future research.

The purpose of this article is more defined. We seek to explore whether temporary migrant farm workers are especially vulnerable to sexual harassment in the workplace. First, we examine the incidence of sexual harassment on Australian farms. This examination begins with an explanation of the research methods, which use evidence from official inquiries, media reports and original qualitative research to develop a fuller picture of the issue. Second, we explore the systemic factors which produce vulnerability to sexual harassment and the barriers to justice that prevent temporary migrant farm workers from remedying workplace sexual harassment.

We argue that, in addition to the well-documented barriers faced by temporary migrant farm workers to remedy exploitation and access legal remedies relating to wage underpayment, (19) there are particularly high barriers which make it virtually impossible for a temporary migrant worker to take legal action relating to sexual harassment in the horticulture industry. Although there are media reports and reports on social media forums about sexual harassment of temporary migrant farm workers, there is scant evidence of legal action being taken by either the police or victims. Scholars have critiqued the effectiveness of anti-discrimination law more generally as failing to protect victims because it is based on a negative rather than a positive duty and is predicated on an individual complaints model which has very limited capacity to challenge incidents of sexual harassment and transform workplace cultures. (20) However, this article argues that these problems are substantially heightened for temporary migrant workers on farms.

An intersectional approach to sexual harassment sees gender as intersecting with other forms of discrimination and systems of power to produce an intensified risk for some groups of workers and to affect how they experience sexual harassment. (21) In the case of the horticulture industry, this intersectionality is multifaceted, as gender, visa status, temporariness, deportability, dependence on unregulated contractors and accommodation providers, and reliance on farm work for an immigration outcome serve to amplify the imbalance of power in the employment relationship. In this context of overlapping and intersecting vulnerabilities, it is striking that the recent Australian Human Rights Commission ('AHRC') report of its inquiry into sexual harassment at work in Australia does not specifically recognise visa status in its list of descriptors for 'at-risk populations'. (22) This list includes: sex; age; sexual orientation, gender or intersex status; Aboriginal or Torres Strait Islander status; disability; culturally or linguistically diverse background; and insecure work status. (23) Although temporary migrant women share many of these listed characteristics, their precarious immigration status as temporary visa holders intensifies the risk of sexual harassment.

We also draw upon scholarship establishing a nexus between precarious work and an increased risk of sexual harassment. (24) Precariously employed individuals have been found to be more prone to experiencing unwanted sexual behaviour at the workplace compared with workers in non-precarious settings. (25) We hypothesise that as the horticulture industry has an entrenched problem of non-compliance with labour standards, (26) sexual harassment is also likely to be more common, although less reported and remedied because of the aforementioned issue of intersectionality which exacerbates unequal power relations. There is a pressing need for further research to understand the extent of the problem so that legal, policy, institutional and other responses can be found.

II TEMPORARY MIGRANT FARM WORKERS AND SEXUAL HARASSMENT AND ASSAULT

This Part illuminates the vulnerability that generally arises at the intersection between aspects of the legal framework governing sexual harassment and temporary migrant work in the horticulture industry. We first establish the methodological approach we have taken to evaluate the incidence of sexual harassment on Australian farms. This is followed by an examination of evidence of the incidence of this conduct since 2015.

A Research Methods

Given the importance of understanding how law operates in practice and the efficacy of current laws, particularly in the context of equality law, empirical research is essential, adding an important dimension that traditional doctrinal scholarship cannot provide. (27) It is difficult to evaluate temporary migrant farm workers' experiences of sexual harassment and assault, due to both the nature of the complaints and reporting process, and the disparate, transient and often inaccessible characteristics of the temporary migrant workforce. There are inherent difficulties in quantifying the incidence of sexual harassment in an industry like horticulture that is defined by seasonality, geographical dispersion, reliance on contractors, and a largely temporary migrant workforce. Government cooperation would be required to conduct a quantitative survey of the workforce, as this would be the only way to obtain the contact details of the entire sample of visa...