The Fair Work Ombudsman, when considering 33 cases involving claims of underpayment among coal miners, stated that it was using an Enterprise Agreement (EA) as the base document. This EA is being challenged as invalid and void due to alleged fundamental deficiencies and fraud. The EA pays less than what comparable workers receive under the Award.
I challenged the Ombudsman’s office for betraying workers who were clearly being exploited by their employers, in collusion with the CFMEU. This exploitation was enabled by a highly questionable decision made by a Commissioner, who appeared not to have fully considered the Better Off Overall Test (BOOT) before approving the proposed, inadequate EA.
It appears the Commission can approve an EA “on the papers” when the union and employer are aligned, without a thorough examination of the agreement’s impact on workers.
— Senate Estimates | October 2025
Transcript
CHAIR: Great. Thank you very much. We’ll open with questions, then, and I’ll start the call with Senator ROBERTS.
Senator ROBERTS: Thank you for appearing again tonight. We’re getting pretty familiar, Ms Booth.
Ms Booth: Yes, Senator.
Senator ROBERTS: My questions are pretty simple tonight. What is the total number of matters being investigated in the coal sector? I’m particularly interested in those matters that came out of the One Nation analysis, in which labour hire payments to coal workers were and are below what would be an award casualised rate, if such a thing existed—it doesn’t, but if it did. Can you confirm for me again how many matters are in that category? My recollection is that there were around 14 individuals.
Ms Booth: As of 26 September this year, we had 33 cases under investigation and had finalised an additional 13 cases in the black coalmining industry. That is in Mr Campbell’s jurisdiction, so I will pass to him.
Mr Campbell: I’ll obviously assist you with questioning on this subject. We have Steven Ronson here to assist with details as well, given the nature of your questions. We are happy to go into any detail you like.
Senator ROBERTS: I’ll let you get on with resolving the cases and the complaints.
Mr Campbell: That works for me.
Senator ROBERTS: Good. Can you give me a rundown on the number and types of entities that have been consulted in relation to those matters—specifically the labour hire companies and the mine owners, perhaps—and what sort of feedback and cooperation you have received?
Mr Ronson: Of those 33 cases that Ms Booth referred to, there are 25 employing entities. There are 25 different companies, if you like, that are being investigated.
Senator ROBERTS: Ms Booth, can I come back to you: what was the total number you said?
Ms Booth: There are 33 currently under investigation.
Senator ROBERTS: Thirty-three? I thought you said three! Thank you. I know that the analysis we published states that there are large underpayments, based on a comparison to what would or should be a casualised award rate. But there’s a trick, because the coal award does not have casualised rates, as we’ve discussed at length. That being the case, are you investigating the matters and assessing whether underpayments have occurred compared to what would be a casual award rate if such a rate existed?
Ms Volzke: As I think we’ve discussed on a number of occasions, these issues and some of the complexities arise in relation to the absence of casual operation rules under the award. What we’ve done is proceed on the basis of the information before us in determining what, if any, underpayments might be payable in relation to each of those matters that we’re investigating.
Senator ROBERTS: What would be the base rates, so to speak, because you’re talking about casual?
Ms Volzke: If there’s an enterprise agreement in operation in relation to a particular employee, then it would be the enterprise agreement that, notionally, we would be looking at. Obviously, if there weren’t one, there might be contracts of employment et cetera as well. It’s obviously going to depend on the particular circumstances.
Senator ROBERTS: What I’m getting to is this: would you compare it with the base rate of permanent employees doing the same job and add 25 per cent to take into account a lack of other conditions of employment?
Ms Volzke: As we’ve spoken about before, because the award doesn’t provide for that for those employees— who, I think, in that cohort, mostly had enterprise agreements relevant to their employment. That would be the document that we would look to test against any potential underpayments.
Senator ROBERTS: So the enterprise agreement, which we think was not fair, would still be the base rate that you would compare it to?
Ms Volzke: As we’ve spoken about previously, as the independent regulator, we apply the law as it stands. Where agreements have been made and approved by the Fair Work Commission as valid enterprise agreements, then those are the industrial instruments that we will use to determine any underpayments.
Senator ROBERTS: If the Fair Work Commission has approved an enterprise agreement that is grossly underpaid compared to the award, you would go with the enterprise agreement.
Ms Volzke: I can’t comment on the fairness or otherwise, but what I would say is that, where it has been lawfully made and is in operation for the particular period of time that might be in question for a particular employee. That’s the instrument that we test those underpayments against.
Senator ROBERTS: Have you identified instances where labour hire casual employees have been paid below the full-time award rate? If so, that would clearly constitute underpayment.
Mr Ronson: I’m not aware that that’s the case so far, but I’m happy to take that on notice just to double-check.
Senator ROBERTS: Thank you. Ongoing underpayments is the next topic. Minister, we have been following the same job, same pay applications in the coal sector, which, on our observation is a very slow process. By the way, I led the development of same job, same pay in the Senate. Given that there are a significant number of coal operations not yet subject to the same job, same pay regime, One Nation would assess that there are still large numbers of casual labour hire coalminers that continue to be underpaid when compared with the casualised award rate. Would you concur with that assessment? I guess you would not.
Mr Ronson: I think the best way of answering that question would be that what we’ve tried to do in the course of this investigation is heighten awareness of our investigation. We have a dedicated email address specifically for these cases alone, so that anyone who’s working in the sector, or has worked in the sector, can request our assistance. Yet, as we’ve explained, I suppose each case will fall on its own merits. We investigate each case as to what we find. We follow the evidence in that particular case.
Senator ROBERTS: At the nub of this issue, from the very start, has been the claim by many casual coalminers—and I agree with them entirely; so do some experts in industrial relations—that the enterprise agreements under which they’re working are dodgy. They’re grossly under the award rates. But what you’re saying is that’s become the new benchmark. That’s what I got out of Ms Volzke and you.
Mr Ronson: What we’re saying, as Ms Volzke put, is that we’ll apply the law as it is. If the enterprise agreement is in place for that particular worker, that’s what we apply.
Senator ROBERTS: So you don’t look at the roots of the enterprise agreement—that it’s below the award rate with a lack of the casual premium.
Mr Ronson: We will look to see whether the enterprise agreement has been approved by the Fair Work Commission. If it has, and if it’s a valid industrial instrument and it’s operative, we will apply it.
Senator ROBERTS: So you won’t look into whether or not it passes the BOOT test?
Mr Ronson: No.
Senator ROBERTS: Given that the 33 matters we’re focused on, and that you’re investigating, are of coalminers who have worked across a range of labour hire companies in a range of mines, would it be fair to say that the numbers of labour hire coalminers who have potentially been underpaid is probably very significant—that is, that large numbers of coalminers worked, and are continuing to work, under exactly the industrial instruments of the individuals you are investigating? Our estimate is that the number would easily exceed 5,000, possibly 10,000. Would that be a reasonable guess?
Ms Volzke: The premise of that question is something that we wouldn’t agree with, for the reasons that we’ve spoken about. Where there are enterprise agreements that applied and were validly approved by the commission, that is the document or instrument that we use to determine whether or not there have been underpayments. The other thing, and I know we’ve spoken about this previously, is that it’s not necessarily the case that, because the award doesn’t provide for operational casual roles, it means that a particular employee would therefore be full time. It might, for example, be that they are award free, in which case their entitlements are by reference to the national minimum wage, for example. Another outcome might be a technical breach of the award that doesn’t necessarily carry consequences. As we spoke about previously as well, the original 15A definition of casual employment that was inserted back in 2021, I think, applied with retrospective application, which was close to a designation approach to casual. It would capture many of the historical complainants in this particular cohort that we’re talking about.
Senator ROBERTS: It seems to me that miners are not getting justice for a trick that was pulled on them by the mine owner, by the labour hire firm, which includes in one case an Australian offshoot of the world’s largest labour hire firm, Recruit Holdings from Japan, and by the mining division of the CFMEU, which is now back to being the Mining and Energy Union. You’re going to endorse it because they came up with a Fair Work Commission approved document.
Ms Volzke: We’ve also spoken previously about who has standing to determine or challenge whether or not an agreement has been validly approved. It’s somebody who’s aggrieved by that, and that doesn’t extend to the Fair Work Ombudsman. Certainly it would be open to another party if they so wish to challenge that.
Senator ROBERTS: Good luck getting a law case cheaply in this country. We’re aware that, in your investigations, the Fair Work Ombudsman has a six-year time restriction on being able to litigate to require compensation for underpayment. You’ve indicated, Ms Booth, in prior Senate estimates hearings that you have not restricted your investigations to the six-year limit but have gone back much further. Is that correct?
Ms Booth: That is my recollection of the evidence we gave.
Mr Campbell: That is correct.
Senator ROBERTS: I think we’ve discussed in these hearings in the past that the underpayments that we have assessed occurred because of the absence of a casualised rate in the coal award. We’ve discussed that to some extent. I’d like to look at it from another angle. If your investigation finds the practical evidence that supports our analysis in the 33 matters that you are investigating, I assume that there may be legal difficulties in successfully prosecuting for compensation because of this legal trick, which is what I’m hearing now. It may be legally complex to have the courts agree that underpayments were illegal. Is it that underpaid casual labour hire coalminers are victims of a legal trick? Could that be a reasonable point of view?
Mr Campbell: I don’t think that we’d come to that view. We wouldn’t make a decision around the enforcement outcome we’d seek to impose in a certain circumstance until the conclusion of the investigation. The statute of limitations we’ve talked about previously goes to enforcement by way of litigation, for example, but there are other ways that we can seek to resolve a historical matter, which is also something we’ve discussed before, where we’ve found evidence of that contravention or an enforceable entitlement. We haven’t got to that point in these matters, so it remains open to us to consider how we will resolve them.
Senator ROBERTS: Would the Fair Work Ombudsman’s task of seeking compensation be more straightforward if legislation existed that resolved the legal trick? We refer to clarifying that casualised labour hire coalminers should be and should have been paid 25 per cent more than the full-time rate under the coal award. Yes or no—would legislation make it easier?
Mr Campbell: I don’t think we’ve got an opinion on that.
Ms Booth: I think you’re asking us, if the law were different, would we apply the different law?
Senator ROBERTS: I’ll ask the minister. Minister, we congratulate the government on eventually requesting the Fair Work Ombudsman to investigate gross underpayments of casual labour hire coalminers. It’s taken about 6½ years. The investigations from the Fair Work Ombudsman to date appear to be heading in the direction where the underpayments that we assessed were occurring may be confirmed on the evidence of the cases being investigated by the Fair Work Ombudsman. Further it is likely, we believe, that any potential compensation may be legally difficult to enforce, which is what I’m hearing, because of a trick using enterprise agreements to get around the fact that the black coal mining industry award does not allow for a casual rate for comparative purposes. It’s our view that the most likely way to obtain justice for casualised labour hire coalminers would be to have legislation that resolves the legal trick we referred to, clarifying that casualised labour hire coalminers should be and should have been paid at least 25 per cent more than the full-time rate under the award. Assuming that the evidence from the Fair Work Ombudsman that supports the underpayment analysis is forthcoming, would the government be interested in considering such legislation for wage justice for these coalminers? If so, One Nation would be very keen to work with the government on such legislation and to lend our full support. Would the government consider that?
Senator Walsh: The government has passed a suite of reforms to our workplace laws to get wages moving in this country, including the closing the loopholes legislation that established the same job, same pay principles and the secure jobs, better pay legislation. We’ve improved rights for casuals, we’ve reinvigorated bargaining, we’ve done a lot of work to close the gender pay gap and we’re really focused on improving the rights of Australians to be paid fairly for the work that they do. You’re referring to matters that I think are best addressed by the team that’s at the bench in terms of matters that the Fair Work Ombudsman has apparently been investigating.
Senator ROBERTS: They’re not allowed to talk about policy and legislation. That’s what I’m asking.
Senator Walsh: You referred, I think, in your question to a report that may be coming. Is that correct?
Ms Booth: We haven’t concluded the investigation at this time.
Senator ROBERTS: You talk about rights, Minister. When you look at the people on a dodgy enterprise agreement compared with those on the black coal mining industry award base rate plus 25 per cent casual loading, you see that this is clearly Australia’s largest wage theft case, and that means that workers have been betrayed. This has been signed off on by the Mining and Energy Union, or the CFMEU mining division, by the labour hire companies, including the largest in the world, by mine owners and by the Fair Work Commission. Workers have got no protection whatsoever. If this goes through, workers have got no protection. There are thousands of them in Central Queensland and the Hunter Valley. It’s blatant exploitation. Will the government step in, subject to the report?
Senator Walsh: From a government perspective, it seems appropriate to wait for the report of the Fair Work Ombudsman and give it due consideration when the report’s concluded.
Senator ROBERTS: Thank you
