Allan Fels lends his skills to fighting the exploitation of workers

More than a decade since stepping aside as chairman of the ACCC, Allan Fels remains committed to fairness and equality. Photos: Jarrod Barnes.

Professor Allan Fels AO is turning his formidable skills in advocating for fairness and equity to helping migrant and vulnerable workers, and improving life for people with mental illness.

It’s 8:30 on a cool Tuesday morning in Paris and Professor Allan Fels is warming up for another big day in the office. The office happens to be the Château de la Muette, a magnificent heritage building at 2 Rue André Pascal once owned by the Rothschild family. These days, it serves as headquarters of the Organisation for Economic Co-operation and Development (OECD).

Fels is a familiar figure in the corridors of the OECD, just as he is in the corridors of Oxford University’s School of Social Sciences, University of Melbourne’s Law School, and the Faculty of Business and Economics at Monash University.

In fact, it’s pretty hard to keep up with him as he bounces between various roles and institutions he’s involved with that take him around the world, not to mention the numerous committees in Australia Fels is asked to preside over.

Fifteen years after stepping aside as founding chairman of the Australian Competition and Consumer Commission (ACCC), a position he held for eight years after running both the Prices Surveillance Authority and Trade Practices Commission, Fels is showing no signs of slowing down. He’s probably busier than ever.

What drives him now, even at age 76, are the same types of issues that have driven him throughout his professional career. Educated by the Jesuits in Perth, before commencing a law-economics degree at the University of Western Australia (first class honours), Fels went on to complete his PhD at Duke University in the US, with a focus on wages policy and price regulation.

A crusader and a campaigner against anti-competitive practices

Fels’s ongoing quest for fairness and equality keeps him on the frontline as a crusader for open market competition, and as a tireless campaigner against anti-competitive practices in all their forms. Competition is in his DNA.

At the ACCC he was regarded as an activist regulator, often befriending and utilising the media to name and shame industries and multinational corporations over practices such as price gouging and manipulation in sectors including telecommunications, electricity and gas. One of his biggest ongoing battles was against oil companies over retail petrol pricing, but every industry seen to be ripping off consumers was a fair target.

Nothing much has changed. Since leaving the ranks of government, Fels has been commissioned to head up numerous competition inquiries, covering the Victorian taxi industry, executive pay, government integrity, parliamentary entitlements, community organisations, and insurance pricing.

"There have been cases of poor behaviours by accounting firms. It seems to permeate right across different sectors. It's not just a fruit-picking problem. It's a problem across many areas, from restaurants to retail, and all over the place."

The taxi industry inquiry led to him being appointed a global adviser to ride-sharing behemoth Uber, where he provides counsel on transportation and public policy issues.

“I’m still quite active in the competition space,” Fels tells INTHEBLACK.

“My biggest interest currently is in questions that arise when you apply it to the provision of government services, such as health, education, disability, employment services and the like.”

On this occasion he’s arrived in Paris after a short stint at Oxford, where he delivered a lecture on competition. His presentation to the OECD competition committee, on which he has served as Australia’s key representative for several years, is on the topic “competition and choice in health care”. It’s a perfect choice, because he’s passionate about both.

Later in the week he’ll attend the Global Forum on Competition, a keynote event at the OECD hosting high-level competition officials from over 100 authorities and organisations worldwide.

“My involvement in this field is especially strong at the international level, where I take part in many major international meetings and conferences,” Fels says. These include the annual peak conference of the International Competition Network – he’s attended every conference since its inception in 2001.

However, as a global competition aficionado and arguably Australia’s best-credentialed expert in the field, what does Fels think of the domestic state of play?

“Australia is, as far as the ACCC is concerned, going very well, very actively applying the law, and doing useful studies,” Fels says. He points to a recent ACCC study on digital media platforms, its inquiry into energy markets and changes to competition law dealing with abuse of market powers. Even so, he’s less impressed with the pace of reform, especially in areas such as stamping out collusive price-fixing.

“On the less positive side, a lot of the energy that went into the National Competition Policy reforms, the so-called Hilmer reforms, has subsided rather heavily,” Fels says. “There’s not been much progress in recent years.

“The resistance by affected interest groups has strengthened and become harder to overcome. They are more skilled in resisting change. Also, some of the easier targets were dealt with in earlier years. There’s also not that same commitment politically, or in the community, to the promotion of competitive, well-informed markets.”

Targeting migrant worker payment rorts

 It was exposure of underpayments to migrant workers by convenience store franchise 7-Eleven in 2014 that led to an official inquiry by the Fair Work Ombudsman, eventually to changes to the Fair Work Act, and ultimately to a new chapter in Fels’s illustrious career.

He was asked by the Australian Government to head up the Migrant Workers’ Taskforce, a body established to investigate and deal with the issue of underpayments across the whole economy, which go well beyond the retail and hospitality industries.

Make no mistake, Fels is on a mission to make sure migrant workers don’t get ripped off.

“The two big areas in which it occurs relate to students, of whom several hundred thousand work, and so-called working holidaymakers, sometimes called backpackers, who are temporarily visiting Australia, of whom, again, the numbers working are in the hundreds of thousands,” Fels says. 

“A very large number in both categories are very substantially underpaid. The aim of the taskforce is to firstly explore better law enforcement mechanisms.”

Even the accounting profession has been caught up in the issue, with the Full Federal Court in 2018 upholding a decision to penalise a firm for being “knowingly concerned” in contraventions of the Fair Work Act by a client over the underpayment of a worker. A second case in 2018 heard by the Federal Circuit Court resulted in a Sydney accountant being fined for his role in the unlawful exploitation of young workers by a retail food chain.

“There have been cases of poor behaviours by accounting firms. It seems to permeate right across different sectors. It’s not just a fruit-picking problem. It’s a problem across many areas, from restaurants to retail, and all over the place.”

Fels says laws are designed to deal with individual cases of underpayment, not widespread systemic underpayment, and the taskforce is looking at possible solutions.

“This is quite a hard topic to handle, and there are many policy levers available to the Commonwealth government that need some review, because they could have some effect on underpayments.”

To illustrate the complexity of the issue, Fels quickly rattles off a long list of the other members on the taskforce, including representatives of the Department of Jobs and Small Business, the Fair Work Ombudsman, Department of Home Affairs, Australian Border Force, Department of Education and Training, Department of Agriculture and Water Resources, Australian Taxation Office, ACCC, Australian Securities and Investments Commission, Attorney-General’s Department and Department of the Treasury.

In Fels’s typically analytical fashion, he points out that the role of taskforce members is tricky because it’s not that easy to apportion blame.

“Is the problem guest workers breaking the law and possibly depriving Australians of jobs? Or is it that small businesses, especially franchisees, are flaunting the law? Is it uncapped, unlimited entry of foreign students and working holiday-makers, which floods the labour market? Is it the needs of farmers for foreign workers to be available at low cost? Or is it that we consumers want access to shops supplying goods and services cheaply all times of day and night?

“There’s no easy answer to it, but different people frame the problem differently and arrive at different solutions as a result.”

Spearheading challenges around mental health

Allan Fels, with his daughter Isabella, believes mental health requires higher government priority.

There’s also one passion in Fels’s life that goes far beyond any other, because it’s very personal.

It arises from the fact that, many years ago, his daughter Isabella (now aged 46) was diagnosed with schizophrenia, requiring her to receive long-term external accommodation, support and care.

With the help of several families and assistance from his Catholic parish in Melbourne’s South Yarra, Fels secured the use of a disused convent to establish residential accommodation to provide care and support for 14 persons with persistently serious mental illness.

“It’s had a very positive impact on Isabella’s life,” Fels says. “Now, the model, having been very effective in transforming the lives of very vulnerable people, has been spreading. We have funding for, and we’re in the process of building, four more such units in Victoria, one in Frankston [which is] already in existence, and in three other locations.

“The residents do their own cooking and cleaning, but for those needing some help and supervision there are staff available 24/7. It aims to balance the residents having an independent life with them living in a community, with the combination of independence and some dependence for care and support.”

The accommodation facilities come under the umbrella of The Haven Foundation, established in 2006, of which Fels is founding chairman.

In February, the Victorian Government announced he would be one of four commissioners leading a Royal Commission into Mental Health. The Commission will deliver a preliminary report by November 2019 and a final report in October 2020 on how to most effectively prevent suicide, help those with mental illness and deliver the best mental health outcomes.

“At this point, my biggest interest is mental health,” Fels says. 

“With my daughter’s experience, I’ve definitely a deep interest in national and state policy. For the last six years, I was chairman of the National Mental Health Commission. My term has just expired, and I’m patron of various mental health organisations.That involves having some oversight of all mental health services, whether at the primary care level, with GPs and psychologists, at the secondary level with community mental health entities and non-government organisations, and with hospitals and acute care. So, it’s a system.”

Asked whether additional government funding provided to mental health organisations such as Orygen Youth Health and Headspace by the Department of Health is working, Fels says it is to a certain degree, but there’s still a lot more to be done.

“Mental health is the weak part of the health system,” he says. “I welcome the recent decision by the Commonwealth government to have a Productivity Commission inquiry into the economics of mental health.

“Mental health needs to be a higher priority and to be run better and in a more coordinated rather than fragmented fashion.”

Whatever comes from that, expect Fels to be actively involved in the process somewhere.

Read next: 5 ways to discuss mental health in the workplace

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