By Sayomi Ariyawansa
Childcare in Australia is notoriously expensive. The Indonesian Institute, in a submission to the Productivity Commission’s public inquiry into childcare and early childhood learning, proposed that the Australian government should enable Australian families to hire Indonesian nannies as domestic migrant workers – for $200 per week.
From the perspective of the Institute, it is an opportunity for the Indonesian women at the heart of the proposal for economic advancement. A salary of AU$200 per week is much more than an Indonesian woman in a comparable position could earn in Indonesia. The employer (or “host family”) would provide and pay for private medical insurance, accommodation, food and a work clothing allowance. The nanny would be entitled to Sundays off and a return airfare home for two weeks per year. The Institute also proposed that the host family pay a bond with an Australian agency that would oversee the program. This bond would be forfeited in the event the nanny was not paid or mistreated.
Currently, the Children’s Services Award sets the minimum wage for childcare workers in Australia, which includes nannies. Assuming an eight-hour day (which is no safe assumption as the proposal envisions the nanny performing general housekeeping duties in addition to childcare services) an Indonesian nanny will be paid approximately one quarter of the minimum wage under poorer working conditions with respect to leave and other entitlements such as superannuation.
The disparity in salary and working conditions is stark. However, does this mean we should reject this proposal? Or, is there something to be said about an individual’s free choice? According to the Institute, Indonesian women stand to gain immeasurably from this scheme. Is this a win-win solution to affordable childcare for Australian families?
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Indonesia is a signatory to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Worker Convention). Under Article 25:
Migrant workers shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration and … [o]ther conditions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of the employment relationship and any other conditions of work which, are covered by these terms …
This is known as the “principle of equality of treatment” and the proposal clearly breaches it. Tellingly, the signatories to the Migrant Worker Convention are overwhelming countries of origin for migrant workers. Like other migrant-receiving countries, Australia is not a signatory. The unbalanced acceptance of the Migrant Worker Convention reminds us who truly benefits from migrant labour. There is a clear segregation between those who are in a position to exploit, and those who are in the position to be exploited.
Yet, if a foreign country offers the best economic opportunity for a person – shouldn’t it be their decision alone, regardless of inequality? Isn’t it paternalistic to prevent Indonesian women from making a choice, because of the Migrant Worker Convention or an objective sense of inequity?
The golden egg for migrant workers is the ability to send money back home to support their family, a practice known as “remittance”. For 2014, the World Bank estimates annual remittance flows of $581 billion globally. According to the latest World Bank figures, remittance flows to Indonesia in 2013 constituted a 0.8% share in GDP. As the Guardian reports, for many developing countries, remittances are worth more than international aid – as much as three times more.
Can remittances lead to sustainable development in migrants’ countries of origin? Sylvie Aboa-Bradwell, director of African Peoples Advocacy in the UK, argues that remittances aren’t particularly helpful for poor countries because they only addresses day-to-day consumption and living expenses and do not affect internal systemic problems. Conversely, as Michael Clemens from the Center for Global Development notes, addressing consumption may have the potential to lead to sustainable development – for example, by enabling a child to go to school.
Both points are true. Remittances have enormous potential to facilitate sustainable international development. But, this potential depends on the willingness of countries of origin to harness the power of remittances to alleviate poverty at the level of household consumption, and direct efforts towards broader development at the national level. Despite a long history of remittance flows, the developing world is far from achieving this. Indeed, many developing countries are grappling with “brain drain” as migration is increasingly seen as the only option for a better life.
Despite the potential of remittances, they come at a great cost to the migrant workers themselves. Migrant workers become second-class residents in the countries where they work. Migrant workers are paid less than local workers and work in comparative poorer conditions in jobs that are largely invisible to the wider public. Local workers face the strain of the inability to compete with readily available cheap labour. Unsurprisingly, therefore, the prevalence of migrant labour creates deep divisions in community. Migrant workers often leave behind children to grow up without one or both parents – a significant price to pay for the opportunity to work, the full effects of which still remain to be seen.
In February 2014, the Australian Institute of Criminology (AIC) released a report on the experiences of Indonesian migrant domestic workers. The key issue identified was the difficulty of preventing abuse and exploitation. There is no way to ensure that an Indonesian nanny is protected from physical or emotional abuse, or unacceptably harsh working conditions, apart from relying on the nanny herself to report this abuse to the relevant agency.
According to the AIC, Indonesian law requires Indonesian migrant domestic workers to attend training sessions upon their arrival aimed at educating migrant workers on their rights and how to access help if necessary. These sessions are run by private recruitment agencies, and, according to a report by the International Organisation for Migration, are inadequate: private recruitment agencies have little incentive to properly equip these workers for the challenges that lie ahead.
Similarly, the crushing effect of isolation cannot be underestimated. Nannies work alone in the home of their employer. This factor, coupled with cultural and language barriers, can severely inhibit their ability to take steps to mitigate potential harms and seek help where necessary. So, what do you say to an Indonesian woman who wants the opportunity to work as a nanny in Australia? Or, to put it bluntly – what limits should exist for consent to exploitation?
There is a distinction between exploitation and wrongful exploitation. Indeed, exploitation imbues many ordinary transactions, and the word can simply mean to turn into a profit – just think about the exorbitant price of car parking in an airport. However, the presence of certain factors can tip exploitation into the ‘wrongful’ category. In these circumstances, we must look harder at the transactions to determine if they are ethically defensible.
According to the Stanford Encyclopedia of Philosophy, there are two elements of exploitation: the benefit to the exploiter, and the effect on the exploited. Or, the advantage to the Australian family, and the impact on the Indonesian nanny. We can consider these elements together to determine whether or not exploitation exists, and if so, whether or not it is wrongful.
The advantage to the Australian family is clear. The proposal enables the family to obtain flexible and individualised childcare and housekeeping services at, currently, the lowest possible price. Furthermore, the Australian family is only able to secure the services of an Indonesian nanny at a cheap price because of her circumstances. It is relevant that the Australian family did not cause the circumstances which constrains her choices, and that the Australian family has no special obligation to repair those circumstances – but equally, it is significant that the transaction itself depends on the extreme inequity between the family and the nanny.
What is the impact on the Indonesian nanny? The presence of negative elements alone is insufficient – indeed, as the Stanford Encyclopedia of Philosophy notes, “there are … negative elements in virtually all controversially beneficial transactions”, such as ordinary employment relationships. We prefer leisure to work, for example, but we choose to sacrifice our leisure time for payment. We may even choose to work for free in order to obtain valuable work experience to further our careers in the long term.
There are two key aspects to the impact on the Indonesian nanny. On one hand, she is exposed to the significant harms outlined above. She is treated as if she is worth less than an Australian citizen: she is discriminated against by being deprived of equivalent working conditions and remuneration. She is exposed to the risk of abuse and other harms, such as severe isolation and the trauma that comes from being separated from her family and children. On the other hand, however, she can earn more money than she would in Indonesia, and can therefore provide more for her family.
How can we determine whether the impact, overall, is positive or negative? Even if the Indonesian nanny is not actually subjected to the harms of abuse, the assumption of the risk of abuse (willingly or otherwise) is an affront to human dignity. We do not expect Australian citizens or other residents with working rights, for example, to consent to the risk of abuse in order to obtain an income. So, when it comes to considering the overall impact, we are left with a seemingly unanswerable question. What is the price of human dignity?
It is arguable that the transaction could proceed and conclude as a mutually beneficial relationship. Yet we have no way of guaranteeing this for the scores of transactions the proposal contemplates. At the outset, we cannot know the full impact on the Indonesian nanny. The only thing that is certain is that she readily assumes risk of harm (a risk of harm without adequate protection) as well as discriminatory treatment for remuneration. This is what tips this transaction into the category of wrongful exploitation.
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Human rights frameworks and questions of equity can easily be viewed as paternalistic in impact. It can be said that we are removing the opportunity for an individual to make an informed and free choice to better their lives – to choose to sacrifice certain rights for other foreseen benefits. Yet, we do not remove choice simply by denying the implementation of the Institute’s proposal. We also remove choice by accepting, fostering and benefiting from the conditions that make the Institute’s proposal so alluring to potential migrant workers in the first place.
Remittances have become an important source of income in the developing world. However, remittances also come at great cost to the migrant worker, their families and their communities. There is a real concern that the developing world may be seen as the only way to “make it” – at the expense of sustainable development in countries of origin. Clearly, international aid and foreign investment still have an important role to play in addressing systemic problems within countries of origin.
The proposal by the Indonesia Institute is greatly flawed. We must remember that wrongfully exploitative employment practices are not a pre-requisite for providing migrant workers with opportunities overseas – nor for contributing to sustainable development in the developing world.
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Sayomi Ariyawansa is a Melbourne lawyer. She has volunteered with the Asylum Seeker Resource Centre, interned in the New York office of Human Rights First and previously worked for the Victorian Department of Justice. She is currently on the committee for the Global Ideas Forum 2014.
