The great debate
There is nothing like an early morning discussion to get the creative juices flowing. And the fashion law breakfast was no exception.
The breakfast brought together a panel of speakers to discuss issues in relation to outworkers, which have been the subject of much debate and litigation in the past 12 months.
Members of the panel included Textile, Clothing and Footwear Union of Australia (TCFUA) state secretary Michele O'Neil; State manager of the Federal Government's Office of Workplace Services (OWS) Paul Werner; Brotherhood of St Laurence ethical business research and policy coordinator Emer Diviney and Middleton's senior associate and specialist in workplace relations David Harnett. The law firm's senior counsel, Peter Riordan, acted as moderator.
One of the primary concerns for some of the small to medium fashion houses in attendance was the difficulty they have in complying with the sometimes onerous provisions of the Clothing Trades Award and the Homeworkers Code of Practice.
The legal obligations were outlined by Hartnett, who noted the requirements of the Clothing Trades Award apply to all manufacturers even if they are not aware of the award. In contrast, the Homeworkers Code is a voluntary Code of Practice, binding only on those who have signed up to the Code. The Award includes requirements such as the need for all manufacturers who use outworkers to register that fact with the Board of Reference, as well as minimum rates of pay and hours worked.
The small to medium design houses present expressed a strong desire to create and retain ethical supply chains. Most agreed ethical manufacturing was a factor which would differentiate them in the market and upon which they hoped to capitalise in the future. It was noted younger consumers in particular had a growing interest in making ethical purchases and more consumers were looking to purchase garments that were manufactured in Australia.
Werner spoke about the role of the OWS - a new Federal Government agency which has been operating for 12 months. The OWS takes an active role in ensuring the rights and responsibilities of employees are understood and complied with and undertakes both educative and investigative roles. The OWS works co-operatively with both the union and employers and conducts audits no companies to review whether relevant awards are being complied with.
Diviney noted in particular the importance of labels managing their supply chain, and the difficulties involved where the supply chain is offshore. She also noted that for small to medium sized businesses, it was difficult to achieve the standards set by the award and the code. It was a balancing act, she said, to ensure the protection of outworkers in accordance with these norms, while trying to meet with the commercial realities of running a business.
O'Neil outlined the TCFUA's position and its role in educating consumers, representing outworkers and working co-operatively with businesses who want to do the right thing. She also noted that about 200 companies in the past 10 years had been prosecuted for breaches of the award.
The main views of the industry itself, as outlined by Zoe Edquist of the Australian Fashion Council, were that while the concerns of the TCFUA were supported and understood, the industrial relations regime was very complicated and many in the industry felt that the system put the designers into the position of "bullying" those in their supply chain. The realities of the situation is that registered factories are difficult to find, and it is therefore not as straightforward as the TCFUA would have the industry believe to ensure that there is full compliance with the award or the code.
The breakfast therefore highlighted the concerns of the main players in this ongoing issue of balancing the protection of a potentially vulnerable class of workers, with the onerous obligations imposed on designers and manufacturers who need to run commercially viable businesses. The issue is unlikely to disappear any time soon, with some fashion labels so frustrated by the current situation that they are taking manufacturing offshore to avoid the current problems associated with manufacturing in Australia. While O'Neil stressed that the TCFUA wanted to keep manufacturing jobs in Australia and sees this issue as a global one - the harsh reality at present appeared to suggest manufacturing jobs in Australia will continue to be at risk while the current lack of understanding and confusion regarding obligations exists.
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