‘Expendable’: Incarcerated workers denied all protections

“We’re forced to work, we don’t have a say in it and we can’t say no...if something goes wrong then it's on us."

Incarcerated people in Australian prisons are forced to work for private companies for less than $1 per hour but are denied the workplace protections and compensation options that are offered to all other workers.

Without these protections, the only option for a prisoner hurt while working in a prison is to sue for negligence, requiring the resulting impairment to be at least 15 per cent of their entire functioning. Even if they are successful in this claim, any compensation money is set aside by state governments for a year and can be claimed by victims of their crime.

The Work Health and Safety Act 2011 explicitly states that prisoners are not entitled to the same protections as workers in the community, despite meeting the same definition.

“Nothing in this part applies to a worker who is a prisoner in custody in a prison or police gaol,” section 103 of the Act says.

According to Justice Action coordinator Brett Collins, it is “essential” that WorkCover and Occupational Health and Safety laws are extended to prisoners working while incarcerated.

“For them to avoid proper training and to treat prisoners like they are expendable underlies their ability to present cheaply to employers and to local industries as well,” Collins says.

“Work health and safety rules don’t apply to them and are deliberately designed to avoid responsibility - that’s outrageous and contrary to any principles of fairness and obligations of the state to behave fairly and correctly.”

People in Australian prisons under 65 years of age are “expected to work”, and this is often producing or repairing products for private companies.

“People cannot withdraw their labour, they’re doing it for a private enterprise for profit and the state is making a benefit from it, that’s the definition of slave labour,” Collins says.

“It’s an impossible situation where you have to do slave labour under whatever conditions are imposed on you and then you receive ludicriously low money. That’s totally unfair. They have no choice but to do what they’ve been ordered to do, no matter what the danger is and what the conditions are.”

‘We can’t say no’

Brandon Green was incarcerated in New South Wales for several years, and worked across a number of jobs without any protection.

“We’re forced to work, we don’t have a say in it and we can’t say no,” Green says. “If we say no we go to segro [segregation]. We’re forced into these positions - a lot of the time untrained. We’re unskilled with no workers’ compensation. If something goes wrong then it’s on us.”

The lack of workplace protections comes despite incarcerated people often working in typically dangerous jobs for as little as $1 per hour. In Victoria, prisoners are paid a maximum of $1.12 per hour to work, while in NSW they receive $17.82 per week for 30 hours of work.

Green also participated in the state’s work release program, where inmates can work a job in the community on a proper wage during the final parts of their sentence. While he paid tax on this income, Green was still blocked from all workplace protections, and from receiving superannuation or sick leave.

“They were still classing me as an inmate worker even though I was paying tax,” he says. “My job was to have all the trucks loaded every day and I had 12 female inmates working under me. If anything had gone wrong, if I had hurt myself, there was nothing for me in terms of worker compensation.

“It’s a massive worry. I operated forklifts, there were trucks coming in and out of the yard all day and I worked 10 to 12 hour shifts sometimes.”

An exceptionally vulnerable labour force

The Australian Prisoners Union has been pushing for proper work health and safety, and adequate payment, for people working in prisons for several years.

“It is imperative that work health and safety protocols in prisons are effectively implemented which can be achieved through prisoner input,” the group said.

Incarcerated workers in the US are also excluded from most workplace protections, according to a recent report by the American Civil Liberties Union.

“Given the vast power disparity between prisoners and their employees, incarcerated workers are an exceptionally vulnerable labour force,” the report said. 

“Incarcerated people sometimes work in dangerous industrial settings or other hazardous conditions that would be closely regulated by federal workplace health and safety regulations if they were not incarcerated.”

To be compensated for any injury sustained while in prison, someone incarcerated in Australia must prove negligence and have a significant impairment as a result of this.

Even if they are awarded compensation by a court, this money is kept by most state governments for a year, with victims given a chance to apply to obtain some of it.

In Victoria, the state government holds compensation paid to a prisoner worth more than $10,000 for at least 12 months so a victim can make an application to receive some of it, under the Prisoner Compensation Quarantine Fund scheme.

“Not only is the right to safety gone but also when the court gives them compensation for the damages they suffered then that’s regarded as not legitimately being deserved by the prisoner. That says everything,” Collins says.

“Prisoners are not entitled to anything while in jail even if the state has been careless.”