During this session with the Fair Work Commission, I asked Mr Furlong if he agreed that you cannot use an enterprise agreement to strip away rights provided by the Fair Work Act and the National Employment Standards. He agreed.
During our exchange, I highlighted several concerns:
I reminded Mr. Furlong that the High Court in Rossato was clear — contract terms must be given effect unless they are contrary to statute. You can’t take away annual leave or award entitlements if the law says otherwise.
When I asked how losing annual leave and getting lower pay could possibly make a worker “better off,” the Commission hid behind “abstract” assessments. There is nothing abstract about a coal miner losing their leave and being underpaid compared to the Black Coal Award.
The Commission tried to tell me we’ve “traversed” this ground before. My response was simple: I will keep traversing it until these workers get what’s owed to them in full compliance with the law.
— Senate Estimates | February 2026
Transcript
Senator ROBERTS: Mr Furlong, you have previously agreed that an enterprise agreement cannot remove all applicable award entitlements. You have agreed that an enterprise agreement cannot remove entitlements provided under the Fair Work Act and the National Employment Standards. Both of them were in November 2022. Do you still hold the same views today?
Mr Furlong: I do.
Senator ROBERTS: Isn’t it true that these propositions were confirmed by the majority of the High Court in the Rossato decision?
Mr Furlong: I can’t talk to the High Court decision, Senator.
Senator ROBERTS: The court went on to say: …where there are express terms of the contract between the parties, they must be given effect unless they are contrary to statute. Are you aware of that?
Mr Furlong: It has been a long time since I’ve looked at that decision. I can’t comment on it.
Senator ROBERTS: I know what you mean. If an agreement includes terms that would remove statutory rights such as annual leave and other award entitlements, wouldn’t those terms be considered contrary to statute?
Mr Furlong: It’s difficult to talk in the abstract about such matters. The terms and conditions in an enterprise agreement are that they need to be better off overall. It’s a global assessment in determining whether or not an enterprise agreement will satisfy a member of the commission and subsequently be approved by that member.
Senator ROBERTS: Thank you. This issue was further considered in One Key Workforce v CFMEU. The full bench of the Federal Court held that: It is an error of law to fail to have regard to relevant material in a way that affects the exercise of power. An administrative decision-maker— the Fair Work Commissioner— who makes such an error exceeds his or her authority and acts without jurisdiction. Isn’t this exactly what the commissioner did when approving an enterprise agreement that ignored the Black Coal Award, which was relevant material?
Mr Furlong: I think that the circumstance of One Key relate to the One Key enterprise agreement. Are we are talking about Chandler Macleod and other agreements about casual coalminers? Senator ROBERTS: If an enterprise agreement takes away annual leave by calling someone a casual, is that going against statute? Mr Furlong: It depends on whether the employee is a casual or a permanent employee. If they are a permanent employee, they would be entitled to annual leave and sick leave and all the other conditions that would be applicable to a permanent employee. There are casual conversion entitlements now for employees that they can exercise if they want to transition from casual employment to an ongoing role. Senator ROBERTS: How does it comply with the National Employment Standards and the Fair Work Act if someone loses annual leave, ends up on lower pay and doesn’t meet award provisions? It goes against statute.
Mr Furlong: The Fair Work Act provides the framework that members of the commission have to observe before they can approve an enterprise agreement. If there is an aggrieved party to a decision made by a member of the commission, those decisions can be the subject of an appeal. If the agreement has reached its nominal expiry date, then a party to that agreement can make an application to have that agreement terminated.
Senator ROBERTS: So the express terms of the contract or EA must be given effect unless they are contrary to this statute?
Mr Furlong: No. What I’m saying is that for a member, in assessing whether or not to approve an enterprise agreement which has been lodged with the commission for approval, a number of statutory tests need to be satisfied. One of them is the better off overall test. Once a member of the commission who has been allocated that file is satisfied that each of those conditions has been met, they are required to approve the agreement.
Senator ROBERTS: Can you tell me how the loss of annual leave, a pay rate that is less and the loss of other award provisions complies with better off overall, because the award prevails? That’s the High Court.
Mr Coyle: It’s very difficult to talk in the abstract here. It’s a case-by-case basis.
Senator ROBERTS: The loss of annual leave, a lower pay rate and the loss of other award provisions—that’s not abstract.
Mr Furlong: We’ve traversed this several times.
Senator ROBERTS: I will keep traversing it until we get these people their fair due in compliance with statute.
During the December 2025 Senate Estimates session with the Fair Work Ombudsman (FWO), I asked about progress on addressing the issue of stolen miners’ wages.
Mr Steve Ronson, representing the FWO, advised that 33 complaints are currently being looked at, and that preliminary findings are close to completion. These findings will enable the parties involved to review their positions and make further submissions if they choose. He also noted that three companies have now self-reported instances of non-compliance, and a total of 25 employers are involved. Several staff members within the FWO are actively working on this matter.
I will not relent until this injustice is fully addressed. Those responsible must be held accountable.
— Senate Estimates | December 2025
Transcript
ACTING CHAIR: I’ll go over to Senator Roberts. Hello, long time, no see.
Senator ROBERTS: Not since yesterday.
ACTING CHAIR: Would you like to have a crack, mate? We are rolling through, and I’d like to give you the opportunity to put your questions to the Fair Work Ombudsman before we move to Senator Kovacic.
Senator ROBERTS: I’m not having a crack. I’m just going to ask some very simple questions.
ACTING CHAIR: That’s code. I know what he’s like.
Senator ROBERTS: Thank you, Chair. No, my questions are really simple. On the matter of complaints from casual coal miners in Central Queensland and the Hunter Valley, where are you up to?
Ms Booth: Thanks for the question, Senator Roberts.
Senator ROBERTS: It’s only really simple.
Ms Booth: We have 33 matters under investigation. Beyond that, I’m going to ask either Mr Campbell or Ms Volzke to add any colour to that response.
Mr Campbell: I’m happy to bring Steve Ronson up as well, Senator.
Ms Booth: Probably makes sense.
Mr Campbell: If you want to start with your specific question, then we can manage it accordingly.
Senator ROBERTS: Just an update.
Mr Campbell: Just an update.
Ms Booth: Where are we up to, Mr Ronson, is the question—the outcome at 33.
Mr Ronson: We’re well advanced with those investigations—there’s the number that Ms Booth just provided—and we’re getting very close to issuing preliminary findings in several cases. The objective of issuing the preliminary findings is to make sure that both or all parties to a dispute have the opportunity to review what we’ve found in our investigations and give them some time to provide either additional or new evidence or confirm our findings. We anticipate that, within the next few weeks, the preliminary findings for several cases will be issued. That will then continue in the New Year. We’ve done most of our work in those investigations and we’re now getting up to the point of sharing those findings.
Senator ROBERTS: Roughly, out of the 33, what percentage will have preliminary findings coming out in the next few weeks?
Mr Ronson: Before Christmas, out of the 33 investigations, if we take—sorry, 31 is probably the more precise number—but if we—
Senator ROBERTS: Excuse me, what you mean by ’31 is more precise’?
Ms Booth: That’s just updated from the 33 last—
Mr Ronson: Sorry, it was 33 cases last time we met. There’s been two finalised since then. It’s 31 cases now. Sorry, apologies. Of that number, three are self-reports. The two cases—
Senator ROBERTS: What does that mean, that they made their own complaints?
Mr Ronson: Correct.
Senator ROBERTS: They submitted their own complaints.
Mr Ronson: Three companies have self-reported non-compliance with various elements of the Fair Work Act.
Senator ROBERTS: Employers?
Mr Ronson: Yes. The two cases that I am aware of, the findings that will likely be issued in the next few weeks will cover about four workers. What I can say is that we’re close to issuing findings with two cases that cover four workers.
Senator ROBERTS: Is that the final decision?
Mr Ronson: Well, what will happen—
Senator ROBERTS: Is it going to vary for each of their complaints?
Mr Ronson: Yes. What we’ll do is issue the findings. The employer, or the employing entities, and the workers will receive the findings, and they will be given an opportunity to reflect on them, look at them and ensure that they are accurate or, if they want to, contest any part of our findings. If so, they’ll be given reasonable time. Possibly, because it’s Christmas, they’ll be given four weeks or thereabouts. By the end of January, if there’s no additional or new evidence or isn’t any contest, then we’ll proceed to finalising those findings. What we’re hoping is that by January and February we’ll be issuing, progressively and sequentially, more findings, because we’ve done most of the investigation work for those 28 cases.
Senator ROBERTS: When do you think all the 31 remaining will be finished?
Mr Ronson: If I exclude the self-reports and we look at the 28 cases, my view would be that the preliminary findings would be issued through not just December but January, February and possibly early March—so progressively.
Senator ROBERTS: So the final reports will come about four weeks after.
Mr Ronson: The findings of each particular investigation are about four weeks after the preliminary findings. Unless—say, for example—I issue you a letter and you go, ‘Hang on, you’ve omitted this evidence,’ or, ‘You’re missing this.’ That, of course, might continue the investigation.
Senator ROBERTS: What’s the breakdown, roughly, between Queensland and the Hunter Valley?
Mr Ronson: I’d need to take that on notice.
Senator ROBERTS: Could you, please. And the number of employers involved?
Mr Ronson: From memory, it would be 25.
Senator ROBERTS: Twenty-five employers?
Mr Ronson: Yes.
Senator ROBERTS: I’ll leave it at that. Well, perhaps I will ask a question. Are they labour hire firms or mine owners?
Mr Ronson: I’m happy to take it on notice to provide the particulars of that division, but it’s a mix.
Senator ROBERTS: Okay. And how many staff do you have devoted to this?
Mr Ronson: In terms of dedicated staff, there would be at least three. That’s them putting a considerable amount of their time into just this particular sector, but I’m happy to correct that.
Senator ROBERTS: If it’s not correct, you can provide it on notice.
Mr Ronson: Sorry. I’m happy to confirm it, but it would be about three.
During this Estimates session with the Fair Work Commission (FWC), I asked questions comparing award rates of pay with those in enterprise agreements (EAs). I was told that EAs use a multifactor approach on a case-by-case basis, with no strict requirements.
Mr Furlong said that a key issue in comparing EAs with the Award in the coal miner cases was that the Award did not include provisions for casual employees. I pointed out that it appeared the FWC could authorise an EA “on the papers”—that is, on written material only—when the employer and union were in agreement, even if the arrangement cheated workers due to a cosy relationship between the parties.
— Senate Estimates | October 2025
Transcript
Senator ROBERTS:Thank you, Chair. Thank you for appearing again. It’s good to see you, Mr Furlong!
Mr Furlong: You too, Senator.
Senator ROBERTS: I have a series of questions for understanding the relationship between awards and Fair Work Commission endorsed and authorised enterprise agreements. Does the Fair Work Commission have a requirement to ensure that pay rates under enterprise agreements are, at minimum, the same as or higher than pay rates under the appropriate competitive award? I’ll be specific: if an award requires a cleaner to be paid $30 an hour as a full-time employee, could the Fair Work Commission endorse or authorise an enterprise agreement that paid the same cleaner $25 an hour as a full-time employee?
Mr Furlong: As we’ve traversed several times before, if an application is made to the commission to approve an enterprise agreement, the Fair Work Act requires the commission to approve the agreement if it is satisfied the requirements in sections 186 and 187 of the Fair Work Act have been met. This includes a requirement that the agreement passes the better-off-overall test.
Senator ROBERTS: Passes the which test?
Mr Furlong: The better-off-overall test.
Senator ROBERTS: The BOOT; yes.
Mr Furlong: Yes. In terms of the minimum rate of pay, the agreement cannot provide less than the base rate of pay in the applicable award. In terms of penalty rates, it’s a holistic view of it. It won’t be a line-by-line analysis.
Senator ROBERTS: So an enterprise agreement could not pay less than—if it’s a straight enterprise agreement and doesn’t roll over and everything else, it could not pay less than the award rate?
Mr Furlong: In terms of what the minimum rate of pay is, yes.
Senator ROBERTS: Thank you. There are no tricks in here; I’m just trying to learn. Do you agree that when calculating a full-time employee rate and adding all entitlements, holidays, allowances etcetera that generally you would add around 19 per cent of the full-time rate?
Mr Furlong: I can’t comment on that, Senator. It’s members of independent statutory office holders, members of the tribunal who apply the better-off-overall test in what they consider and, ultimately, approve in agreements. I can’t talk about what they—the legislative scheme provides the things that they need to consider before approving enterprise agreements, but it is a case-by-case basis.
Senator ROBERTS: Taking that cleaner again, the one on 30 bucks an hour, by adding entitlements of 19 per cent to the effective pay rate, the benefit would be around $35.70. So if it’s not 19 per cent, what percentage would they use?
Mr Furlong: I think what they would do is look at the underpinning modern award and then consider that whilst they’re considering the enterprise agreements in front of them for approval, and then they’ll make a determination based on those two documents and on the relevant case law—whether or not it satisfies the better off overall test and the other pre-approval provisions. On that basis, a member will make a determination if the agreement should be approved and whether or not the agreement should be approved with undertakings.
Senator ROBERTS: So there wouldn’t be any requirement to pay the casual cleaner at least the award rate plus 19 per cent? There wouldn’t be any hard and fast requirement?
Mr Furlong: There’s no hard and fast requirement that—I understand where we’re heading to—if a modern award does not contain a casual rate of pay, then it doesn’t preclude an enterprise agreement containing casual rates of pay.
Senator ROBERTS: Say that again?
Mr Furlong: If the underpinning modern award does not prescribe a casual rate of pay that does not preclude an enterprise agreement being approved that does contain a casual rate of pay.
Senator ROBERTS: How do you think the Fair Work Commission would assess whether or not the enterprise agreement was not paying less than the award, if it was a casual?
Mr Furlong: In the approval decisions, the members outline their reasons for approving or dismissing applications for enterprise agreements. In relation to the Chandler Macleod agreements that I think we’re referring to here, I think it was—
Senator ROBERTS: I’m referring to a lot of them, but, anyway, keep going.
Mr Furlong: The members, including the senior deputy president who approved a number of these agreements, outlined the reasons for the decisions to approve those instruments—those enterprise agreements—at the time. I can provide copies of those decisions on notice, if that would be of assistance.
Senator ROBERTS: That would be of assistance. The Fair Work Commissioner or the member, as you call them, so long as she or he has valid reasons and lays them out in writing, they could approve a casual rate of pay less than the award rate of pay—a permanent employee’s rate of pay under the award, a casual rate for a casual employee could be less than that.
Mr Furlong: I can’t talk to the decisions of members of the commission. Those decisions stand for themselves. Whilst I’m trying as hard as I can to be helpful, the decisions of members to approve enterprise agreements rest with the member who makes the decision. Obviously, their reasons for approving or, as I said, dismissing those applications are outlined in the decisions.
Senator ROBERTS: So, so long as the decisions are justified, that’s it?
Mr Furlong: No. There are appeal rights. If an enterprise agreement has been approved, and there is an aggrieved party who has standing to have that decision reviewed, then they can certainly do that, and it will be reviewed by a full bench of the commission. But, ultimately, if the agreement has passed its normal expiry date— they continue to operate until they’re replaced or repealed—then a party or person who’s covered by that enterprise agreement can make an application to the commission for that industrial instrument to be terminated, at which point they will return to the terms and conditions of the underpinning award.
Senator ROBERTS: We’ll get to an appeal later but, just for now, does an appeal require going to the court?
Mr Furlong: In the first instance, the appeal will be made to the Fair Work Commission, and then it will be dealt with by a full bench of the Fair Work Commission that will be constituted, generally, by three members.
Senator ROBERTS: Are you aware of Fair Work Commission endorsed or authorised enterprise agreements that pay employees: (a) below-the-base award full-time rate; or (b) below-the-base full-time rate plus entitlements or below the casual award rate?
Mr Furlong: I’m not personally aware of instances that are occurring. We approve somewhere between 4,000 and 4½ thousand enterprise agreements a year. The process for approving enterprise agreements is the application is made. It is then reviewed by an expert team, a specialist team, who hold skills and specialist knowledge around the assessment of enterprise agreements. They complete a checklist and then give that checklist and other supporting documentation to a member. The member, with all of that information available to them, will then do a number of things. The agreement, as made, will appear on our website to invite contradictors. If there’s another party or someone who has reason to believe that the agreement shouldn’t be made, then there is an opportunity for that to occur. And that does occur regularly, particularly when they are demarcation issues associated with particular registered organisations or trade unions. A member could receive submissions or information through that process. They could seek further information from the parties, they could deal with it on the papers or they could call the matter on for a hearing if it were particularly complex.
Senator ROBERTS: If an employer and a union came to the Fair Work Commission with a proposed enterprise agreement that paid below any of the scenarios I’ve just outlined, is it incumbent on the Fair Work Commission to undertake an independent analysis to ensure that the enterprise agreement rates are above the relevant award? Can the Fair Work Commission just endorse the enterprise agreement on the basis that the union and employer agreed to the underpayment?
Mr Furlong: The member needs to be satisfied that each of the requirements under the Fair Work Act has been met. So, to speak plainly, they can do it on the papers if they are satisfied that the information that they have in front of them and the agreement have been supported—or endorsed, for want of a better word—by a trade union. That will, obviously, carry some weight in their determination.
Senator ROBERTS: I can understand it would. Can I take you to the example of the enterprise agreement between the shop workers’ union and Coles, which was overturned in 2017 after the efforts of a lone employee, Penny Vickers. That enterprise agreement had been endorsed, or authorised, by the Fair Work Commission and paid Coles employees below requirements. In the face of the employer and union—it was arguably collusion; it was certainly agreement—it was the efforts of a lone employee, Penny Vickers, that protected employee rights against the might of the legal teams of the union and the employer. My question is: where a Fair Work Commission authorised endorsed enterprise agreement pays below award rates and both the employer and union have cooperated or colluded on the underpayments, who has the capacity to challenge this? Is it only lone employees, or can someone else—me, for example—mount a challenge to the Fair Work Commission?
Mr Furlong: That’s a very good example of when an application is brought by someone who is covered by that enterprise agreement. They brought that application post, I think—I’ll have to take that on notice; it’s been a while since I’ve actually looked at the specifics of that case. I’ll have to take on notice who has standing to make an application to terminate an enterprise agreement. It’s certainly someone who is covered by the agreement or an employer organisation that has representational rights for that employee.
Senator ROBERTS: I might not have representational rights if I want to intervene.
Mr Furlong: I haven’t looked at this section of the act for quite some time, so I’m not too sure who has standing. Is there anyone else at the table on this? We might have to take it on notice.
Senator ROBERTS:Thank you. I have two more questions, Chair.
CHAIR: Sure.
Senator ROBERTS: If the Fair Work Commission authorised or endorsed an enterprise agreement that paid employees less than award rates, could this arguably be a case of the Fair Work Commission engaging in maladministration or some other error of law? Are there processes within the structure of the Fair Work Commission that enable such a review of underpaying enterprise agreements to be undertaken?
Mr Furlong: I’ll just return to my earlier evidence that, if someone believes that a decision of the commission has been made in error, there are those appeal rights, and they should exercise those rights.
Senator ROBERTS: If the Fair Work Commission overturned its original ruling, would it arguably be a case of the Fair Work Commission, in the first ruling, engaging in maladministration?
Mr Furlong: For the independent statutory office holders exercising powers provided to them under the Fair Work Act, it doesn’t relate to the administration of public servants. I just want to return you to my evidence that the correct mechanism for dealing with this would be through an application for the agreement approval decision to be reviewed and overturned.
Senator ROBERTS: If it were found that the Fair Work Commission didn’t consider the right factors when approving or authorising the enterprise agreement, would that be maladministration?
Mr Furlong: Do you mind if I take that question on notice?
Senator ROBERTS: Yes, sure. This is my last question. You are aware of my interest in black-coal miners and the One Nation report that sets out, in forensic detail, how casual mine employees are underpaid in comparison to the award. I assume you’re aware that the Fair Work Ombudsman is investigating the underpayments.
Mr Furlong: Yes.
Senator ROBERTS: If the Fair Work Ombudsman were to conclude that coalminers have been and are being underpaid in comparison to the award, are there processes whereby such underpayments could be stopped and historical underpayments could be addressed by the Fair Work Commission with a view to compensating coal employees for the underpayments they suffered?
Mr Furlong: My understanding of the evidence that was provided by the Fair Work Ombudsman earlier this evening is that the reference instrument that they’re relying on for their calculations to determine if there’s been an underpayment is the enterprise agreement, not the underpinning award.
Senator ROBERTS: Yes, but, to come back to my question, if they’re being underpaid in comparison to the award—if that were the reference document—then could the Fair Work Commission address that by compensating coalminers?
Mr Furlong: I’m not aware of the Fair Work Ombudsman actually doing the calculations against the award, because that’s not the industrial instrument that applies to the employment of these casual coalminers that you’re referring to. My understanding—and I obviously can’t speak on behalf of the ombudsman; I can only relay my understanding of their evidence from earlier this evening—is that the assessment won’t be against the mining award; it will be against the enterprise agreements that were approved at whatever point in time.
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.
During a session with Ms. Darlene Perks from Coal LSL, I inquired about the case of Mr. James Joseph, who is currently in a significant dispute with Coal LSL regarding payment of his long service leave entitlements.
Ms. Perks stated that Coal LSL would not take any action until they received notification from the employer via a levy form. She said that disputes arising from the failure to provide correct information should be directed to the Fair Work Commission for resolution. Ms. Perks explained that employers often make errors on certain forms, which then require adjustment. She added that if an employee is no longer employed, levy payments would cease.
I asked about the risks that were alluded to in a recent ANAO audit and was told that the concerns related to errors in financial statements and the valuation of unlisted trusts, which are quite complex.
When I questioned why the management of billion-dollar government funds is in private hands, I was told it would be taken on notice and answered at a later time.
— Senate Estimates | October 2025
Transcript
CHAIR: Senator ROBERTS, you have the call.
Senator ROBERTS: Thank you, Ms Perks and everyone from Coal LSL. Mr James Joseph was injured on BHP’s Mount Arthur coal mine on 7 June 2023. Are you familiar with James Joseph?
Ms Perks: We are familiar with James Joseph, yes.
Senator ROBERTS: Coal LSL have confirmed with Mr Joseph that they were not informed of his workers comp status, which was approved in May 2024 following a six-month delay. Mr Joseph’s correct workers compensation status seems not to have been reported to Coal LSL by BHP or the insurer, Coal Mines Insurance. The board of directors of Coal Mines Insurance, I understand, has 50 per cent Mining and Energy Union directors and 50 per cent coal owners.
Ms Perks: I’ll answer the last part. The shareholding of Coal Services, which I think you were just referring to—
Senator ROBERTS: Coal Mines Insurance.
Ms Perks: Yes. It is not an organisation we have any relationship with in our jurisdiction, but I can confirm that the shareholding is as you have reflected—the Minerals Council and the CFMEU.
Senator ROBERTS: That’s the composition of the board? Fifty-fifty?
Ms Perks: Our board?
Senator ROBERTS: The Coal Mines Insurance board.
Ms Perks: I can confirm that, but I think they do have independent directors.
Senator ROBERTS: What about your board?
Ms Perks: The legislative framework hasn’t changed in all the hearings we’ve had. Our board has six directors who are appointed by the responsible minister—three directors nominated by employee companies or bodies and three directors nominated by union organisations. They are minister appointed.
Senator ROBERTS: Thank you for correcting that. It’s fifty-fifty again?
Ms Perks: Our director composition?
Senator ROBERTS: Your board composition.
Ms Perks: Yes.
Senator ROBERTS: Fifty-fifty employers and union—okay. What is being done to rectify this particular case, and is this a common occurrence—that is, an employee is medically terminated whilst on workers comp and Coal LSL are not informed by the employer or their insurer? This seems, by the way, very familiar. It is similar to the mistreatment of Mr Simon Turner by BHP and his employer at the time, the labour hire firm, Chandler Macleod. What’s being done to resolve this, and is it common?
Ms Perks: The scenario we’re talking of is termination. I tried to explain this in a couple of hearings over the years as well, but I appreciate there are a lot of new members, and I’ll explain the process again. Our GM of Legal, Michael Dowzer might be able to add to the process. The employer will advise us through their monthly levy returns a termination code for the employee. One of the reasons for termination can be ill health. Others would be redundancy or cessation. That process hasn’t changed. That is the legislative arena that we operate within. Nothing has changed from the explanations over the years with regard to how we collect the data, how the employer advises us and how we then verify the data through the relationships and interactions with the employers.
Senator ROBERTS: Was that one of the problems that Coal LSL was encountering—a lack of verification of the data? I’m not saying you didn’t do this here. It’s common then for someone’s employment to be terminated while still being on workers comp?
Ms Perks: I can’t talk to the commonality of that with regard to the data. As I said, the reason for cessation will be advised to us by the employer.
Senator ROBERTS: But sometimes the employer won’t notify you.
Ms Perks: They will notify us of a reason for termination.
Senator ROBERTS: Yes, but sometimes they won’t notify you that he has actually been terminated.
Ms Perks: Would you like to add to that, Michael?
Mr Dowzer: The notification comes through our levy form, and they identify when employment has ceased and the cessation code which indicates the reason for termination. That is a report from the employer. If subsequently there is an issue in relation to that, we’ll engage with both the employee and the employer to seek to understand that issue, but, ultimately, it’s to be resolved between the employer and the employee.
Senator ROBERTS: The question was: is it a common occurrence that an employee is medically terminated while on workers comp and Coal LSL are not informed by the employer or the insurer?
Mr Dowzer: What we are notified of is the cessation of the employment. There’s no requirement to notify us in relation to any other details in the employment relationship.
Senator ROBERTS: So, in your experience of checking up, it’s not really common that you’re not notified?
Ms Perks: The way I’d answer that is in relation to complaints. Your question is: is it a common occurrence? No, we don’t have volumes of complaints which would illustrate a systemic issue in the common occurrence of employers advising us of termination codes which an employee doesn’t agree with. I know there are a couple of cases, and, certainly, we’ve had a lot of conversations around those. But I wouldn’t say it’s a systemic issue that has been understood through volumes of complaints for the scenarios that you’re talking about.
Senator ROBERTS: I’m not accusing you of governance issues at the moment. We sorted them out, hopefully, after the review. What are the implications when this occurs—for example, an impact to levy payments, because the employer is no longer paying, super payments and internal workloads of Coal LSL to investigate and resolve such matters? Does that put a burden on you?
Ms Perks: In the scenario where it’s found that an employer has advised us of a termination code that an employee disagrees with, certainly the resource from the team would be to engage with the employer, engage with the employee, assess the information et cetera. If that is unresolved, then we would be advising the employee to take it to the Fair Work Commission, because we’d be classifying it as an industrial relations dispute, which is out of our jurisdiction.
Senator ROBERTS: If the companies fail to notify Coal LSL within a reasonable period, what would normally come of it? For example, there was a six-month failure to inform you in Mr Joseph’s case. What happened there when BHP didn’t inform you for six months?
Ms Perks: I’ll talk about the obligation under the collection act, where the employer has an obligation to submit a monthly levy return. That is a statutory obligation. In regard to correcting or working through a disagreement or a dispute in information that we’ve received, that would be a process which isn’t time bound in our statutory frameworks. But the employer has an obligation to inform us monthly of employees’ service and any other critical information, such as terminations and eligible wages.
Senator ROBERTS: If this is proved to have occurred through a registered organisation, what intervention, penalty or enforcement would Coal LSL apply under its constitution to deter recurrence? Is there any?
Mr Dowzer: The key obligation is to submit a monthly levy return with correct information. We are reliant on that information in terms of being able to conduct any further inquiries. If an issue is brought to our attention by an employee, we will engage with the employer and seek to get the employer and the employee to resolve that issue and communicate the outcome to us. We don’t have any power to adjudicate on that dispute.
Senator ROBERTS: So there are no consequences for the employer?
Mr Dowzer: If there’s an incorrect levy return then there could be consequences, but that is a factual matter which we would not have evidence of.
Senator ROBERTS: Could you please advise why Mr Joseph’s Coal LSL number looks to only exist from September 2022 onwards, as per his Coal LSL commencement letter, recently provided to him under a freedom of information request? What is the specific reason for the delay in creating his Coal LSL member number?
Ms Perks: I think we’d have to take that one on notice and have a look at the timeframe of his records and provide a response on that review.
Senator ROBERTS: Mr Joseph has been provided information under FOI, freedom of information, that shows Coal LSL levies were paid by BHP to Coal LSL in as early as July 2022. However, his welcome member letter was produced in September 2022. Why was that?
Ms Perks: We’ll take that on notice.
Senator ROBERTS: Is it possible for levies to be paid when an identification number does not yet exist?
Mr Dowzer: When the levy return identifies a new employee, we will take that information and effectively create a record for that employee. Our obligation is to keep records—
Senator ROBERTS: And then you get an identification number out of that?
Mr Dowzer: There is an identification number which would be created at that point at which the employee is first put on a levy return.
Senator ROBERTS: So it wouldn’t be possible for levies to be paid when an identification number does not yet exist?
Mr Dowzer: The first time that a new employee is properly identified on a levy return would be the point at which we would commence a record for that employee.
Senator ROBERTS: Mr Joseph requested all company audits provided by BHP to Coal LSL for the entire period of his employment, from 2011 to 2024. I don’t think he was continually employed at Mount Arthur for that period; I think he was involved in other divisions of the company, including in Western Australia. Why was he only provided with two years, considering that Coal LSL are reviewing his open recognition of prior service application for periods that fall within this freedom of information date range, 2011 to 2024?
Ms Perks: Can I take that one on notice as well? I do know the FOI case. I can’t answer without going back to the reasoning as to why that information was provided and some wasn’t.
Senator ROBERTS: Sure.
Ms Perks: I know that the team work within the jurisdictions of FOI, so we’ll take that one on notice and provide a reasoning.
Senator ROBERTS: That’s fine, Ms Perks. The December 2023 Coal LSL BHP external audit report indicates potential discrepancies in reimbursement amounts claimed by BHP. Has the investigation into this matter been completed? This is two years later.
Ms Perks: That’s their audit report? I’d say it’s quite common, through the process of that audit work, for employers to have adjustments in reimbursement claims or levies. It’s through that audit process that the reimbursement, if it’s overclaimed or overpaid, would be rectified, and similarly the levy payment would be rectified. I won’t answer without being able to check with the team that that has been closed out, but I’d be very confident, with an audit report dated December 2023, that an action from the audit report submission would be closed out, as our administrative processes would—
Senator ROBERTS: Thank you. Perhaps you could take this next item on notice, then. Was this, in fact, found to be a confirmed finding—that is, BHP claiming illegitimate reimbursements? If so, how significant were the findings of this discrepancy?
Ms Perks: ‘Illegitimate’ is a strong word. Again, if I take us back to the process of the employer, it is a selfreporting scheme. The employers, through the submission of monthly levy returns and then the reimbursement claim process, will be calculating based on our guidance of how to calculate levy payments and also how to claim the reimbursement under the reimbursement rules. It is very common that employers get it wrong. It’s a complex administrative process. So it is quite common that, through the external audit function that we rely on for the assurance of the correctness of levies paid and reimbursement claims, there will be a—
Senator ROBERTS: An adjustment?
Ms Perks: An adjustment. I wouldn’t typically classify that as illegitimate or deliberate actions. We would typically see that as human error on the employer’s side, and the audit process provides the assurance to then get the adjustments correct.
Senator ROBERTS: Is this a disclosable matter? If it is, was it disclosed in the Coal LSL annual report for financial year 2023-24?
Ms Perks: No, that’s not a disclosable matter.
Senator ROBERTS: Thank you. Is it true that BHP did not pay any Coal LSL monthly levies from any of their owned entities to the Commonwealth Coal LSL fund in the period between November 2015 and November 2016?
Ms Perks: I will take that on notice, but I would be very surprised to find that they hadn’t paid levies. I would be very confident in saying they have paid the levies, but we will take that on notice to answer your question.
Senator ROBERTS: Something in my mind is reminding me that that might have been proven in the Iron Mountain document. Can you recall that? I can’t.
Ms Perks: I’m not familiar with that document.
Senator ROBERTS: Okay. Could you also tell me what was done about it, please.
Ms Perks: If it wasn’t paid?
Senator ROBERTS: Yes.
Ms Perks: Yes.
Senator ROBERTS: Was that approach consistent with the Coal LSL constitution at the time, and were any penalties applied? Could you tell us that as well, please.
Ms Perks: If an employer hasn’t paid a levy in line with their obligations under the collection act, the lever that we have available is to charge an additional levy. It’s an interest calculation. That is the lever that we’d have available to us.
Senator ROBERTS: So we have got some penalty provisions?
Ms Perks: We do have some penalty provisions.
Senator ROBERTS: BHP and Coal Mines Insurance previously refused to acknowledge Mr Joseph as a black coal industry covered employee, challenging him on this as recently as July 2024, yet Coal LSL have received levies from Mr Joseph since July 2022. Can you explain how and why this would occur, from Coal LSL’s perspective. I’ve got my thoughts on it. Ms Perks: Other than taking it on notice—
Mr Dowzer: My position on that is that, for the purpose of compliance with our scheme, the inclusion of an employee on a levy return is a statement by the employee in relation to eligibility under our scheme. As to matters relating to other issues of employment, we do not have visibility on them and wouldn’t have a view on them.
Senator ROBERTS: Yes. I’m guessing there’s still probably some confusion. Mr Joseph was on what some people call a staff payroll, which is an admin job, a managerial job or a supervisory job, compared with, say, a coalminer at the front line, who would be on an hourly rate.
Mr Dowzer: I would make the distinction that coverage under any industrial arrangements is, in some cases, a different assessment to eligibility under our scheme, so it’s really not appropriate for us to be commenting on those interpretation questions.
Senator ROBERTS: I’m just wondering whether that’s where some of the confusion comes from. He wouldn’t have been on the supervisory staff or administrative staff. He wouldn’t have been on the Black Coal Mining Industry Award. He would’ve been on the staff award, for example. Does the Coal LSL levy apply to the accident pay component of employee wages when on workers compensation?
Mr Dowzer: The issue of an employee on workers compensation is dependent upon the nature of the workers compensation arrangement between the employer and the employee. So, if the employee remains employed by the employer, then that is leviable eligible wages. If employment has ceased, then the obligation under our scheme is on the employer. There is no obligation on an insurer under our scheme. There is no leviable eligible wages if employment has ceased.
Senator ROBERTS: So, if the insurer is paying workers compensation but the employee has been terminated, there’s no obligation on BHP?
Mr Dowzer: That is correct.
Senator ROBERTS: And there’s no obligation on the insurer to pay either. Is that what you’re saying?
Mr Dowzer: That is correct.
Senator ROBERTS: Should an employee on workers comp in the black coal mining industry who is medically terminated and who remains on workers comp continue to accrue Coal LSL leave if they remain incapacitated due to their injuries and condition whilst they continue receiving workers compensation wages? You’ve just answered that question. This gets complex, doesn’t it?
CHAIR: How are you going there, Senator?
Senator ROBERTS: I probably need another five minutes—maybe less, because we’re going to change topic pretty soon, and then it should go quickly. In previous estimates, the Department of Employment and Workplace Relations has stated there is a list of around 80 entities who may have been paying levies in error. Has this investigation now concluded?
Ms Perks: Paying levies in error?
Senator ROBERTS: Yes. Do you remember that?
Ms Perks: Yes. That investigation has concluded. There were 28 employers who were paying levy in error, and 25 of the 28 employers have been refunded that levy amount. The three remaining, for different reasons, still need to be transacted. We’re waiting on the employer to provide information so that we can refund that amount.
Senator ROBERTS: So they overpaid.
Ms Perks: They incorrectly paid into the scheme.
Senator ROBERTS: Too much. Were any of the entities coal services or coalmining services? They wouldn’t have been, would they? They don’t employ coalminers.
Ms Perks: No.
Senator ROBERTS: Does the list include any BHP owned entities?
Ms Perks: No.
Senator ROBERTS: I will change topics, you’ll be pleased to know. I will move on to the audit. The report of the most recent audit of Coal LSL conducted by the Australian National Audit Office flagged ‘higher risk related to both valuation of investments and the valuation of provision for reimbursements’. What is the real meaning of these two findings of risk in regard to the effective operations of and the integrity of the scheme? What are the risks and who is at risk of exposure?
Ms Perks: Mr Windever will answer that question.
Mr Windever: The external audit focuses on areas of high risk on our balance sheet, and these particularly will be in areas of our provision for reimbursements, which is a piece of analysis that is covered by our actuary, but also our investments, as you pointed out. To be specific, they’re higher areas of risk of misstatement of our financial statements. I’ll speak to the first one.
Senator ROBERTS: Not financial risk, just a risk of error in your statements?
Mr Windever: In the financial statements—that’s correct. If we talk about the first one, the provision for reimbursements, that analysis is conducted by our actuary. It’s considered to be an area of higher risk, rather than a high risk, for the organisation, just by the very nature of the modelling, the estimations, the assumptions and the judgements that go into that. It’s an inherently high-risk area and one that’s a recurring area of higher risk, if you like, in our audit reports in previous times. It’s not a new finding for us. The second finding around investments is around the valuation of our unlisted trusts. Simply, the reason why this continues to be a high-risk area is the nature of those investments. Unlisted trusts are considered to be more complex from a valuation standpoint compared to other forms of assets. Certainly, there’s a portion of our portfolio that is illiquid assets. They are also, from an auditing standpoint, more complex to assess from a valuation standpoint. That’s why the valuation for investments is also considered a high-risk area. Again, it’s something that we’ve seen in previous audits. It’s not a new set of findings for us.
Senator ROBERTS: So it doesn’t affect the integrity of the scheme; it’s got more to do with assessing the size of the investments, the rates of payout and the rates of income.
Mr Windever: That’s correct. It’s so that we can stand behind the accuracy of the financial statements. Again, these two areas are focused on our balance sheet in particular.
Senator ROBERTS: You said there’s no real risk to your entity—Coal LSL.
Mr Windever: That’s correct.
Senator ROBERTS: So there’s not going to be much fallout if the risks crystallize.
Mr Windever: They’re considered to be high-risk areas, but, each year, as we work through the audits—we had a successful passing again of this audit of our financial statements. We’re satisfied with that outcome.
Senator ROBERTS: I’ll move on to the next part of this. The funds arrive in the accounts of the scheme from compulsory levies upon the relevant employers, right? The funds held by the fund are now in excess of $2 billion. What happens to the excess income generated from the scheme after leave entitlements are paid out?
Mr Windever: You’re correct about the size of the fund. It’s $2.6 billion now. We measure the health of that in terms of a fund surplus or a fund coverage ratio. That’s how I would answer that question, if you like. It remains on the balance sheet, but we have some goals that we work towards around the coverage of assets over our liabilities, and we manage to those goals accordingly. That’s how I’d answer that one.
Senator ROBERTS: I’ll come back to that in a minute. Emmett J in the Federal Court in 1998 emphasised that—and I acknowledge that that’s some 27 years ago—there was a lack of control of the corporation by the government and a lack of accountability to the government. Was Coal LSL a government entity at that time?
Ms Perks: In 1998? Yes. It was in 1992 that the entity was established under the administration act.
Senator ROBERTS: What change of governance, if any, has occurred within Coal LSL since then to tighten that up?
Ms Perks: Since 1998? That’s a very big question. I can talk about what we’ve done since I’ve been in the organisations, and we’ve had a lot of conversations around that. I can—
Senator ROBERTS: Governance was a particularly hot issue.
Ms Perks: I can talk to that specifically. Since 1998—I wouldn’t answer that question.
Senator ROBERTS: I hear what you’re saying. Given that the fund was originally set up as a stopgap measure to build up a money chest, if you like, to cover an estimated shortfall of funds to cover long service leave claims, can your office comment on the purpose for which it’s satisfied for the fund to continue generating millions of dollars per year after the original purpose was met a quarter of a century ago. Why is it still continuing?
Ms Perks: It’s a very good policy question. I can talk with passion about the value of the scheme, and I’m the first one to talk about the value of portable long service leave and what it has done for the industry and employees in the industry. What I would say is—
Senator ROBERTS: Excuse me for cutting you off. I didn’t mean that. You don’t need to convince me of that portability. That’s fine. What I’m getting to is that my understanding—I think it’s correct—is that there was a fund created because there was a shortfall in funds. Now, you’ve a massive service in funds. Why is the fund still in existence?
Ms Perks: That would be a question for government. I think you’re referring to the first reading speech or the explanatory memorandum in 1992, which talked about why the fund was being created. The payroll levy was set at five per cent at that point in time to get the fund back into—
Senator ROBERTS: I’m comfortable with all of that.
Ms Perks: What I would say, though, is that it wasn’t legislated. There was nothing in the legislation in 1992 to legislate a winding up of the fund. Yes, it’s in the first reading speech as—well, is it an intention? I won’t comment. It’s definitely in the first reading speech, but that didn’t translate into the legislation when the fund and the corporation were established.
Senator ROBERTS: I’m not talking about the original coalmine insurance fund. I’m a bit hazy on this, but I understand that there was a stopgap measure of an increase in funds to cover a shortfall due to excessive payouts and not enough revenue coming in. It was probably one of the boom-and-bust years, so they instituted an additional levy as a temporary stopgap. It’s now well past that, and they’ve got a massive $2.6 billion in funds. You don’t need it anymore. Why is it still going?
Ms Perks: Why is the fund still going?
Senator ROBERTS: The extra fund.
Ms Perks: No, the additional payroll levy that you’re talking about was removed in 2008 from memory. The payroll levy was set, and then there was an additional component added, which made it a levy of five per cent. That was in place from 1992 through to—I think it was 2005, from memory. When the fund got back into a neutral position, that’s when that additional levy component was removed. Our levy has been at 2.7 per cent for many years.
Senator ROBERTS: That’s what I was getting at—not the original fund, the stopgap fund. So that has been removed?
Ms Perks: Yes.
Senator ROBERTS: So this is wrong. Thank you. Minister, a question for you—why is a private company run by the NSW Minerals Council, the Queensland Resources Council and the Mining and Energy Union managing billions of dollars contributed compulsorily by employers on behalf of the federal government?
Senator Walsh: I’ll have to take that on notice, Senator Roberts and see what I can provide you.
Senator ROBERTS: Thank you. Before you came into the chair, a lot of the problems in the coal sector came from entities that have 50 per cent Minerals Council or 50 per cent Queensland Resources Council and 50 per cent Mining and Energy Union directors. There seems to be a very tight cluster of organisations—Coal Mines Insurance, Coal LSL, Coal Services. There’s another entity in there too that I’ve forgotten.
CHAIR: I think the minister’s taken that on notice.
Senator ROBERTS: Yes. I’m just trying to give her some background. That’s it; thank you very much.
https://img.youtube.com/vi/0FmTFIoGWGg/maxresdefault.jpg7201280Senator Malcolm Robertshttps://www.malcolmrobertsqld.com.au/wp-content/uploads/2020/04/One-Nation-Logo1-300x150.pngSenator Malcolm Roberts2025-10-21 11:59:582025-10-21 12:00:07Coal LSL Under the Microscope – Again
Six years ago, I exposed a $1.3 billion wage theft scandal involving BHP, multinational labour hire firms, union bosses, and the Fair Work Commission. Casual coalminers were underpaid, stripped of entitlements, and betrayed by those meant to protect them.
Despite ridicule, I persisted. Now, the truth is accepted—but the workers still haven’t been fully compensated. Labor ignored One Nation’s equal pay bill, that would enable the back payment of stolen wages, then copied some of it under pressure. Labor’s Bill did not seek the reimbursement of the stolen wages which had been enabled by the unions in cahoots with dishonest employers.
Labor continue to protect union donors and multinational corporations to the detriment of honest workers.
One Nation stands alone in fighting for justice, recovery of the stolen wages, and accountability. We won’t stop until every coalminer is paid what they’re owed.
Transcript
It’s ironic that six years after me first raising in the Senate the issue that BHP and other multinational mining companies, together with labour hire companies, colluding with the coalmining union bosses and the Fair Work Commission, perpetrated Australia’s largest case of wage theft. An estimated $1.3 billion was ripped off workers.
I first raised this in July 2019, together with clear breaches in statutory provisions for workers compensation, leave, long service leave and other provisions. I was met with ridicule. Slowly, with my persistence and solid data as evidence, my claims were increasingly accepted and now are accepted. Yet here we have before us yet another Fair Work Act bill, yet another change to the Fair Work Act. While we support this bill, I raise concerns with the Fair Work Act itself yet again.
Getting back to BHP and the CFMEU colluding with the labour hire companies, stealing wages and conditions from workers that the government is finally recognising is wrong, I am wearing down my opponents in parliament and the bureaucracy, in one of Australia’s largest and most powerful unions, in one of Australia’s most powerful industries, in some of the world’s largest mining companies and in the world’s largest labour hire firm, Japan’s Recruit Holdings. Who would have thought that the Labor Party, formerly touting itself as the party of the worker, could actively cover up theft from workers? Who could have thought it? What about Labor colluding with major multinational mining corporations, major multinational and Australian labour hire firms and major union bosses to hammer, abuse and steal from Australian workers? These are workers who keep the lights on and who earn export income for what oscillates between Australia’s largest and second-largest export income earner, the coal industry. Labour hire companies, particularly in coal mining, have been consistently underpaying miners to rip off and abuse casual workers who are really working regular full-time hours with the full knowledge and agreement of the CFMEU and MEU bosses and employers. They are stripped of award protections, conditions and entitlements.
I introduced the first equal work, equal pay bill. Labor did not vote for it. They did not support it, saying they would introduce their own. Eventually—a long wait—we shamed Labor into doing their equal work, equal pay bill. They followed One Nation. Equal work for equal pay should be a norm, yet what about the millions—an estimated $1.3 billion—owed in back pay to those who are ripped off? What about them? Some workers were shortchanged more than $40,000 each per year. One complaint lodged with the Fair Work Ombudsman recently as a result of my work revealed a worker is owed $211,000 for years of back pay. It’s wage theft. These workers deserve to be compensated for their years of being underpaid. It’s a rort that goes back to 2014 and has its roots in the Rudd-Gillard Labor fiasco, with former minister Shorten in 2010 overseeing changes in coal-mining long-service leave provisions, making it possible to hide the other breaches of industrial law in the coal sector. They were hidden until I applied the spotlight relentlessly for 6½ years. When will this Labor government go all the way to compensate those workers, whose losses the union bosses should have stopped, not enabled? When will this Labor government go all the way to compensate those whose losses the Fair Work Commission should have stopped, not approved?
Two entities, the CFMEU/MEU bosses and the Fair Work Commission, who should have protected Australian workers, in fact enabled Australia’s largest wage theft from honest workers and then vigorously denied it, thereby helping to cover it up. They were hiding the rip-off of workers to make large multinational labour hire firms in the world’s largest mining company unlawful profits that are exported overseas. The profits are exported. How? Those coalminers had worked under an award that did not allow casuals to work in the black-coal industry. The CFMEU then negotiated an enterprise agreement that included casuals who were grossly underpaid. Their employers and the Fair Work Commission went along with this, even though the better off overall test was not satisfied. This legal requirement was boldly sidelined and breached. The union entered into a secret agreement with the employer to not represent the workers seeking a remedy with the employer. The union signed away its rights to protect workers. It was part of the shabby agreement.
As a former underground-coalface miner and union member and as a former coalmine manager and coal-mining executive, I was absolutely stunned and disgusted at the bold exploitation of Australian workers. I was determined. I remain determined, and now I’m encouraged. Yet, after six years, those coalminers still have not received their fair compensation. One Nation will continue to be the only party that pushes for repayment to those coalminers of their stolen wages.
When I first met with workers in the Hunter, way back in 2019, I drafted three aims for guiding our work that I anticipated would push us against roadblocks from the perpetrators of Australia’s largest wage theft. I will state these aims again: to recover the lawful and moral entitlements of casual coalminers; to stop these abuses across the coal industry; and to expose and punish the guilty. These three aims continue to guide us. Why does this Labor government continue on a path that ignores those ripped-off coalminers? Who are they protecting? Labor is protecting union bosses and what is one of the largest donors to Labor election campaign funds—the CFMEU, now the MEU. Labor is protecting the world’s largest foreign multinational labour hire corporations supplying casual workers to government contracts, costing Australian taxpayers billions of dollars. This is big money. Labor is protecting the world’s largest multinational mining corporations, lacking the integrity and nous to negotiate legal agreements with workers. Labor is protecting its Fair Work Commission.
Despite these huge and powerful forces, One Nation is making progress in giving casual miners tangible hope and the real possibility of compensation. The Fair Work Act is not fit for purpose. Industrial relations needs to return to protecting workers and employers, particularly small business. But it must protect workers. Workers are no longer protected in this country under Labor. One Nation is the only party now protecting workers.
When the Mining and Energy Union signed agreements with big business labour hire companies to underpay coal miners, the Labor Party did nothing and remained silent.
Now, the Albanese Labor government is covering this up.
Albanese’s ‘Same Job Same Pay’ laws fail to backpay underpaid coal miners.
Labor used to be the party of the worker
NOW
It’s the party that screws the worker.
In 2019, miners in the Hunter Valley exposed wage theft. Since then, I have been fighting hard for underpaid coal miners.
One Nation has:
Documented evidence of coal miners’ wage theft.
Pushed through a parliamentary motion for a full investigation.
Prompted the Fair Work Ombudsman to investigate specific miners’ underpayments (it’s big!).
At least 10,000 coal miners in New South Wales and Queensland have been massively underpaid.
One Nation now has a parliamentary bill to compensate the coal miners. The bill will force:
Labor hire companies to compensate (pay) the coal workers.
The union (MEU) to compensate the coal workers.
The Fair Work Commission to compensate (pay) the workers.
The Bill
The important section in the Bill says:
333AA Compensation for underpayment
(2) As soon as practicable after giving the Minister a report under subsection 333Z(5), the Fair Work Ombudsman must provide a compensation notice in respect of the casual employee to the following:
(a) the employer of the casual employee;
(b) the industrial association or industrial associations (if any) that supported the enterprise agreement covering the casual employee;
(c) the Fair Work Commission.
(3) As soon as practicable after receiving a compensation notice under subsection (2) the notified party must pay the amount of compensation included in that notice to the casual employee.
(4) A person referred to in paragraph (2)(a) or (2)(b) commits an offence if the person fails to comply with subsection (3).
Penalty:
(a) for an individual—imprisonment for 2 years or 500 penalty units, or both; or
The Fair Work Ombudsman (FWO) has received a Ministerial directive to investigate wage theft allegations affecting coal miners in the Hunter region. Upon inquiring about the investigation’s status, Mr Steve Ronson, the Executive Director of the FWO shared that there are currently 18 cases under investigation, involving 25 workers and 17 employers, with 2 self-reports also being considered. All complaints are being thoroughly investigated, and the process includes holding meetings with various stakeholders.
A dedicated email address has been established for individuals to contact the FWO regarding these issues. So far, meetings have been held with Coal LSL, the Mining Energy Union, and the Independent Workers Union of Australia. Mr Ronson mentioned that the amounts to be calculated have not yet been assessed, with some claims dating back around 10 years. It’s been estimated that the total claim could potentially reach up to $1.3 billion. He also expressed his willingness to accept a submission from One Nation, which has been advocating for this investigation since 2019, marking it as the largest wage theft claim in Australia.
Interestingly, there has been no liaison with the Fair Work Commission, although other entities are welcome to submit material. Early findings from the investigation may emerge by mid this year, but the final report is expected by mid-2026. Status reports might be discussed through the estimates process. Mr Ronson clarified that while underpayments can be investigated beyond the 6-year period under the Statute of Limitations, enforcement is limited to this timeframe. He committed to securing any identified underpayments through the investigation.
Stay tuned for more updates as this significant investigation progresses.
Transcript
Senator ROBERTS:Thank you for attending, everyone. First of all, I understand the Fair Work Ombudsman has received a ministerial directive to investigate underpayments of casual black coal miners working under enterprise agreements; is that correct?
Ms Booth: We have been asked to conduct that investigation. On the last occasion, you’ll recall, Mr Ronson gave you a thorough rundown. Since that time our enforcement board has approved an investigation plan. I will turn to Mr Campbell to give you any further updates.
Senator ROBERTS:Before he does so, would it be possible to get a copy of the ministerial directive, please?
Ms Booth: I’m not sure I would describe it as a ministerial directive, although others might be more aware of the protocol in these matters. I believe it was a letter.
Senator ROBERTS: Can I have a copy?
Ms Booth: I see no reason why you shouldn’t. I’ll hand over to Mr Campbell and Mr Ronson to give you more details.
Mr Campbell: Is there a particular aspect of our inquiries that you’re interested in, or are you looking for a general update?
Senator ROBERTS: I’d specifically like, please, an overview of the status of the Fair Work Ombudsman’s activities, and could you in particular describe the process the Fair Work Ombudsman is using to conduct its investigations.
Mr Campbell: I’ll ask Mr Ronson to assist.
Mr Ronson: I can give you an update on the status of the investigation. The Fair Work Ombudsman is currently investigating 18 black coal mining industry matters that involve 25 workers and 17 different employing entities. We’ve also received two self-reports from the sector. All the requests for assistance that we’ve received are being investigated, and as part of our project plan we’re meeting with a whole range of stakeholders. We’ve begun meeting with them to talk about the investigation, to enhance and increase awareness and to encourage those in the sector to come forward. We have a dedicated email address to receive any allegations or information from any member of the sector or the community. So far, we’ve had some very constructive and positive meetings. We’ve had two meetings with the Coal Mining Industry (Long Service Leave Funding) Corporation, we’ve met with the Mining and Energy Union, we’ve met with the Independent Workers Union of Australia, and we’ve got a whole range of other stakeholder meetings lined up in the next couple of weeks.
Senator ROBERTS: Thank you. I assume that there’s a dedicated process that casual coalminers can now use to lodge complaints about underpayment with the Fair Work Ombudsman?
Mr Ronson: That’s correct. There’s a dedicated email address we’ve set up for the whole project so that anyone in the sector or anyone with information relating to the sector can feel confident that they can go straight through to contacting us through that email, or they can give us a call—whichever way they want to make contact with us. Of course, there’s still the anonymous report function as well, which is available to all members of the community.
Senator ROBERTS: You mentioned the Independent Workers Union of Australia. I take it that some of the submissions, or complaints, have been lodged through that and some of the others have been individually lodged, for individual work.
Mr Ronson: That’s right. Probably two-thirds have come through the agency of the Independent Workers Union of Australia and the other third are just individual workers in the sector who have requests for assistance that we’re looking at.
Senator ROBERTS: Thank you. I must say that I appreciate your succinct and direct answers. Can the Fair Work Ombudsman provide the range of possible underpayment amounts currently being looked at by the Fair Work Ombudsman?
Mr Ronson: It’s hard to assess at the moment what potential underpayments, if any, exist. Some of the allegations date back at least 10 or 11 years. There are some individuals who’ve worked in the sector for many years. If the allegations are upheld and if the evidence is obtained, there could be significant underpayments owing to certain workers. But at this stage it’s too early. We’ve requested a series of documents, a lot of information from various companies, that will assist us to begin, if you like, the assessment of these particular claims.
Senator ROBERTS: How many employers—not only mine owners but the labour hire firms—are subject to investigation so far? How many?
Mr Ronson: All up, it’s 17.
Senator ROBERTS: You mentioned that—okay. Will the Fair Work Ombudsman advertise to coalminers in the black coal mining sector, encouraging them to lodge and apply to the Fair Work Ombudsman in relation to underpayments they believe they may have been subject to?
Mr Ronson: By ‘advertise’, do you mean increasing awareness, as in media statements?
Senator ROBERTS: Yes: letting them know you’re open for business and you’re aware that this is an issue.
Mr Ronson: Yes, that’s definitely an option available and one we’re considering. There are some other ideas that we have as well about enhancing awareness. For example, there’s nothing to prevent us writing to all labour hire providers and employing entities in the sector. This is one of the suggestions that has been put to us and one we’re currently considering.
Senator ROBERTS: Would that be a wise move in terms of trying to get to the miners? Some of these labour hire firms—some—have been deliberately suppressing this?
Mr Ronson: That’s right—good point. In terms of former workers, that’s a different sort of ‘audience’, if you like. That’s one we’re turning our minds to in thinking about how we ensure people who either are in the industry now or were formerly in the industry are aware of this investigation. The second point I was making, yes, was in relation to employers. That’s something we’ve done in the past. We’ve written, for example, to the ASX Top 100 companies and encouraged them to review their status, and if they self-identify they can self-report any potential noncompliance.
Senator ROBERTS: My understanding is that some of the miners are not aware of it, but it’s a major issue, because we estimate that about 5,000 miners at least have been the subject of Australia’s largest wage theft case, and it’ll cost, ultimately, around $1.3 billion—they’re rough estimates. So I think these people need to be told that there’s an option for them to seek justice and repayment.
Mr Ronson: Yes. As I say, it’s something we’re definitely turning our minds to, and we’re considering what’s the best way to get the word out, if you like.
Senator ROBERTS: Okay. Let’s hope you can get that out fairly soon. The Fair Work Ombudsman would be aware that One Nation has pushed for investigation into this issue and that One Nation released a detailed report in February 2024. Is the Fair Work Ombudsman taking submissions on how the alleged underpayments have occurred, and would the Fair Work Ombudsman accept One Nation’s report as a submission? We can provide data, companies involved, amounts, enterprise agreements and underpayment.
Mr Ronson: Yes, sure. We welcome all and any information and any submissions.
Senator ROBERTS: So we would make submissions in the same way anyone else would?
Mr Ronson: Yes.
Senator ROBERTS: Thank you. Would One Nation be involved in any follow-up discussions on the nature of the issue and its resolution?
Mr Ronson: Yes, if there is information that’s material and actionable, by all means, we’ll be in contact.
Senator ROBERTS: As I understand it, the Mining and Energy Union, which is what’s left in the coalmining sector after the CFMEU and the Mining and Energy Union split, are not seeking back pay. They seem to be hiding it because they were involved in agreeing to the enterprise agreements and signing off on enterprise agreements that were paying much less than the award. Is the Fair Work Ombudsman inviting submissions from other organisations and individuals? If so, who specifically has been approached?
Mr Ronson: To date, as I said before, we’ve met with the Coal Mining Industry (Long Service Leave Funding) Corporation, and we’re asking that agency to provide us with any relevant information. We’ve met with the Mining and Energy Union; we’ve extended the same invitation. We’ve met with the Independent Workers Union of Australia. As you know, they’re actively involved, and they’re assisting our investigation. We also intend to meet with the Queensland Labour Hire Licensing Compliance Unit; RCSA, the Recruitment, Consulting and Staffing Association, which is responsible for labour hire; the Minerals Council of Australia, with which we have meetings lined up; and safe work bodies in New South Wales and Queensland.
Senator ROBERTS: Will you be covering more than the wage theft case and the specific amounts of the wage theft? In other words, will you be covering loss of other entitlements, protections and safeguards?
Mr Ronson: Our jurisdiction only extends to entitlements or conditions that are actionable or have been created under the Fair Work Act and the regulations, so it’s only what is within our remit.
Senator ROBERTS: Thank you. Is the Fair Work Ombudsman consulting with the Fair Work Commission on the issue?
Mr Ronson: Not to date. There’s been no need at this stage. I’m confident that we said at our last hearing that we don’t have the power or the capability to question any approvals of any agreements that have been made in the past. Others can take that issue up.
Senator ROBERTS: Okay. So only the Mining and Energy Union; its predecessor, the CFMEU; and employers, such as mining companies?
Mr Ronson: I’ll defer to the chief counsel as to who in particular can question agreements.
Ms Volzke: I think Mr Ronson has given a reasonable list. I would just say more broadly that one of the issues that I raised at the last estimates is just to remember that we still have that statutory timeframe of six years that applies under the Fair Work Act as well. Obviously, that won’t preclude us from investigating, but it’s important that the miners that we’re looking at also bear that in mind.
Senator ROBERTS: Yes, I’m pleased to say that it wouldn’t preclude you investigating. It may, at the moment, preclude addressing the issues that are raised in the investigation, but it would not preclude the investigation. The premise for my next question is as follows: the black coal award does not allow for casuals. Enterprise agreements were made, and some are still current, but the agreement’s pay rates are demonstrably less than what should be paid under the award if the award allowed for casuals. To an ordinary person, paying casuals less than the award casualised rate—that’s a full-time rate plus 25 per cent—is plainly wrong. That’s the pub test, as people say. And yet the Fair Work Commission endorsed the enterprise agreements. I assume the Fair Work Ombudsman must somehow determine which instrument prevails, being either enterprise agreements that pay less than the casualised award rate or an award rate that incorporates a casualised 25 per cent add-on to a full-time rate. Does the Fair Work Ombudsman have an idea as to how this may be resolved?
Mr Ronson: That’s the $64 question, if I can confirm it. I think, as with previous evidence we’ve provided, there remains uncertainty regarding the legal consequences of the Black Coal Mining Award’s lack of provision for employees in these roles as it hasn’t been authoritatively determined by a court. So it remains an open question.
Senator ROBERTS: Will the Fair Work Ombudsman be issuing a report or reports on its findings of the investigation? If so, what would be the anticipated timeline for such reports? I think the minister made some comment as to [inaudible].
Mr Ronson: At this stage we’re more than happy to provide status updates in this forum as we go along, but we’re hoping that we’d have early preliminary findings towards the middle of this year or just after the middle of this year. I think I said last time, and I think it’s still the case, it could be at least until mid-2026 before we’re in a position to provide a final report. But we will keep this committee posted.
Senator ROBERTS: Would you be in a position to provide interim reports as the investigation progresses?
Mr Ronson: It’s probably easier if we provide status reports, like I have today. The thing about how long an investigation takes is it all depends—
Senator ROBERTS: It depends on the [inaudible] and what you find. I get it. Would any reports you provide be public and unredacted, except of course for retaining confidentiality of workers allegedly underpaid?
Mr Ronson: I see no reason why it wouldn’t be. A report that we provide would be as fulsome and comprehensive as we could publish.
Senator ROBERTS: We’re not expecting names of individuals to be disclosed.
Mr Ronson: No.
Senator ROBERTS: We would expect them to be redacted. Would the reports indicate the employers involved, the organisations involved, the employers and organisations under investigation and any findings that the Fair Work Ombudsman has in relation to the specific employers?
CHAIR: Just before you answer that question, Senator Roberts we’re running an hour and a bit late. I don’t want to cut off your questions, but if there are some that can be on notice that would be helpful. Otherwise, I will come back to you.
Senator ROBERTS: Thank you, Chair. The way Mr Ronson is answering the questions directly, it won’t be long at all. I’ve only got a few more to go. And I have to move on too.
CHAIR: No worries.
Senator ROBERTS: Mr Ronson?
Mr Ronson: The best way of answering your question is: it’s the long held practice of the Fair Work Ombudsman to provide reports of all its major investigations. We’ve published all of them and they’re available on our website. It is our practice and it would be our expectation to do so again.
Senator ROBERTS: Thank you. If the Fair Work Ombudsman were to conclude that underpayments had occurred, and based on the Fair Work Ombudsman’s past experiences, does the Fair Work Ombudsman have ideas of scenarios for compensation for any worker underpayments?
Mr Ronson: Well, we have ideas. As to whether they’re actionable or realisable, that will be determined in due course.
Senator ROBERTS: Yes. This is something Ms Volzke raised. What is the effect of the statute of limitations and how would that apply to someone lodging a complaint today? Can they still lodge it?
Mr Ronson: Yes. As the chief counsel answered, it doesn’t preclude our investigations. The provision in the act only relates to enforceability in the event of proceedings, but there’s no reason why we can’t go back historically and look at historic underpayments and, if the allegations are upheld and there is an entitlement owing, to seek to secure that underpayment.
Senator ROBERTS: Is the Fair Work Ombudsman investigating beyond the statute of limitations to ascertain full amounts possibly underpaid?
Mr Ronson: Yes.
Senator ROBERTS: Thank you very much. Chair, I want to express my appreciation for Mr Ronson being direct. It enabled me to get through my questions. I also want to communicate to the secretariat that I’ll be on the road, so I won’t be able to ask the Fair Work Commission questions in the hearings, but I will put them on notice. And it’s the same with the coal long service leave.
https://img.youtube.com/vi/A5_eE4rV_cU/maxresdefault.jpg7201280Senator Malcolm Robertshttps://www.malcolmrobertsqld.com.au/wp-content/uploads/2020/04/One-Nation-Logo1-300x150.pngSenator Malcolm Roberts2025-03-06 09:58:012025-03-06 10:53:49Investigation into Wage Theft for Coal Miners in the Hunter
I congratulate the Fair Work Ombudsman (FWO) for at last taking the many complaints from underpaid coal miners seriously and treating them professionally. It’s only taken me five and a half years of persistent questioning to reach this point.
I was informed that preliminary results of the FWO’s investigation would be available around mid-2025. The six-year time limit that applies for enforcement under Section 544 of the Fair Work Act does not prevent investigations from extending beyond that period.
Determining the legality of Enterprise Agreements (EAs) is outside the scope of the FWO. If the Fair Work Commission (FWC) approved an EA, the FWO would consider it legal until a court rules otherwise.
The Senate passed my amendment to a recent Labor bill. That amendment requires the Minister for Employment and Workplace Relations to investigate this wage theft. Minister Watt agreed to provide me with updates and mentioned that the investigation might take up to 18 months to complete. We will persist in holding the Minister accountable in increasingly detailed ways as to progress in his investigation.
After five and a half years of holding government departments and agencies accountable, and doing our own research we continue to pursue Australia’s largest case of wage theft. More than one BILLION dollars of underpayments involving as many as 5,000 workers. Our research has led to miners recently submitting complaints to the Fair Work Ombudsman -. i.e. a miner has been underpaid $211,000 and some miners have had at least $41,000 stolen per year of employment.
Transcript
Senator ROBERTS: Thank you for being here. I want to congratulate and thank the Fair Work Ombudsman for responding to the Independent Workers Union of Australia request for underpayment assessment on behalf of IWUA casual miner members. I hear that the Fair Work Ombudsman is treating these requests with seriousness and professionalism and that you’ve set up a specific process for handling the claims. Given that the underpayment claims involve detailed investigation of documents relating to each miners’ annual income, their pay rates and so on, going back as far as 2013, I appreciate that the investigations may take some time. Does the Fair Work Ombudsman have any idea of the timelines involved? I’m not urging or wanting a fast outcome. Rather than a rushed job, I’d prefer a thorough high-quality investigation.
Ms Booth: Thank you for the question and the compliment. I’ll ask Mr Campbell to commence, but Mr Ronson has direct knowledge of that investigation, I believe.
Mr Campbell: I don’t know that we’ve got a timeframe at this point, but I’ll ask Mr Ronson to assist with an answer, given his immersion in the subject.
Mr Ronson: We’ve put together an overarching project plan in response to the requests to investigate the sector. In terms of preliminary findings—this is a guide, not so much necessarily for each request for assistance or each employee—we’re looking at preliminary findings by at least the middle of next year. The challenges we face, of course, as we go back to 2013, are those records, available witnesses and so forth.
Senator ROBERTS: Thank you; that’s good. When you said ‘next year’, I suddenly realised we’re nearly at the end of the year. I understand that the Fair Work Ombudsman’s investigation is subject to a six-year time limitation. Can you advise of the specific legislation, regulation or policy that creates that six-year time limitation?
Mr Ronson: That’s section 544 of the Fair Work Act. But there’s an important distinction to make, and this is one that we’ve put into our plan. That provision relates to enforceability. If I can just take you back—if someone puts in, as we’ve received, claims that go back to 2013, that does not prohibit us from investigating back to that period. However, if we were to find underpayment and request an employer or previous employer to compensate the employee for their underpayment, we would be restricted or limited by the impact of section 544. What that really means is: say we had to take someone to court. It would mean that at the time we file proceedings—I’m happy for chief counsel to help me here—we’d only be able to enforce an underpayment that goes back six years.
Senator ROBERTS: To 2018. Thank you; that’s pretty clear.
Mr Ronson: That doesn’t preclude us investigating historic underpayment.
Senator ROBERTS: That’s even more encouraging. Thank you so much. My next question is: is the Fair Work Ombudsman able to investigate back beyond—yes, you’ve said that. The One Nation report detailed coalminers’ wage theft and detailed the way casual coalminers’ underpayments have been justified by the people involved. The report identified what was called legal trickery that argued that, because the black coalmining industry award does not allow for casuals, a comparison to what would ordinarily be a casual rate under the award could be ignored in assessing the claimed underpayments of the national Independent Workers Union of Australia member coalminers. What is the approach of the Fair Work Ombudsman to this legal argument that claims to justify underpayments? What bearing does or would this argument have on the Fair Work Ombudsman’s investigations?
Mr Ronson: In terms of the requests for assistance that have come from workers who are being assisted by the Independent Workers Union of Australia, their argument is that the enterprise agreements are unlawful. There are various reasons they have put forward, probably in line with the report you just held. The question of whether those agreements are unlawful is outside our scope. The chief counsel, I think, on previous occasions gave evidence to this committee as to why we don’t go to second question. Nor can we guess the enterprise agreement approval process. What is in scope—what is in jurisdiction for us—is whether there was any coercion or any breach of general protections in the making of the agreement. As to the foundation or the status of the enterprise agreement, if it’s been approved by the Fair Work Commission, we take it as approved. There are a whole range of questions that flow from that, but that’s it in summary.
Senator ROBERTS: So, it’s not necessarily compliant with the law just because the Fair Work Commission approves it, but it has been approved.
Ms Volzke: Senator Roberts, I think we’ve traversed these issues before. It’s the Fair Work Commission that approves agreements, and it’s our job to apply the law to any particular case. As Mr Ronson said, that is exactly what we’re going to do with all of those requests for assistance that have been made. Certainly, there have been issues of legal complexity which still haven’t been authoritatively determined: what actually is the effect of the black coalmining award not providing for casual employment in operational roles. Certainly, there’s been some commentary around that, but it hasn’t been formally determined.
Senator ROBERTS: Thank you. In undertaking the investigations, will the Fair Work Ombudsman report to the Senate on the progress of the investigations, findings and follow-up, obviously within the bounds of required confidentiality in relation to each miner?
Mr Ronson: We’re very happy to, at these appearances, provide updates, if you like, without jeopardising the integrity of any particular investigations. So it’d be at a fairly high level, but we’re more than happy to provide updates.
Senator ROBERTS: Thank you. I have questions to Minister Watt. Minister, when will you start your investigation that the Senate ordered on 16 May by passing my successful second reading amendment to the government’s recent so-called closing-the-loopholes Fair Work Amendment Bill?
Senator Watt: I would have to go back and take a look at that, Senator Roberts. I must admit I—
Senator ROBERTS: It was at the time Minister Burke was in the chair.
Senator Watt: Okay, that’s probably why I’m not familiar with it. Let me take that on notice and come back to you.
Senator ROBERTS: I’m surprised that you’re not aware of it. No-one in the handover made you aware of it?
Senator Watt: I don’t remember anything like that in the terms you’ve described, but Ms Volzke might know.
Ms Volzke: Yes, certainly. Minister Watt wrote to us—I think it was in August, so a couple of months ago— in relation to tasking us to effectively look at investigations of underpayments in black coal mining.
Senator Watt: Yes, I do remember that now. Sorry, I forgot.
Senator ROBERTS: So you are interested in workers?
Senator Watt: I think my record shows I am pretty interested in workers, including coalmining workers, Senator Roberts. I sign a lot of letters, but I do remember that one now.
Senator ROBERTS: Okay, I can understand. What’s your planned format, in terms of reference and scope, for the investigation?
Senator Watt: That’s probably a question for the—
Mr Ronson: That’s what I’m working on, and that’s where we’re developing what we’re calling an overarching project plan. What we’ve got at the moment is around 20 workers who have already approached the Fair Work Ombudsman, and obviously each of those persons will be very helpful to our investigation, because we’ll be able to talk to them about the sector. I can just give you a couple of key features of the project plan. One is to map out and identify who are the key players, the key influences. Senator, you’re on the record, for example, as saying that there are five labour hire entities of significance that you claim warrant attention.
Senator ROBERTS: We think there are more, but we’ve only investigated five.
Mr Ronson: Yes. Labour hire entities will obviously be a sharp focus for this plan.
Senator ROBERTS: Good.
Mr Ronson: Just in the nature of the industry, there are tensions, which we’ve already talked about before, between entitlements that are owed under the award and those under the enterprise agreement, so that’s in scope. We’ll also be working and talking with other regulators—for example, the coal long service leave board—where there are entities of mutual interest. We might be able to collaborate with that agency to enhance our capability and capacity.
Senator ROBERTS: So it’s broad, and—
Mr Ronson: Yes. There’s an overarching plan that will take us around the next 18 months to deliver, but within that we’ve already set up, for example, a dedicated email address for anyone in the sector to approach us. We’re in communications with the Independent Workers Union. They’ve already started using the dedicated email address. We’re active and open for business now, but there’ll be other initiatives and steps we take to enhance awareness of this investigation.
Senator ROBERTS: I might come up with some more questions, but I’ll put them on notice. You’ve told us it will be about 18 months?
Mr Ronson: Yes.
Senator ROBERTS: Okay. Minister, I refer to the letter from the Independent Workers Union of Australia to the CFMEU administrator in relation to the Independent Workers Union of Australia’s application to the Fair Work Ombudsman for investigation—you and I were copied, as was Senator Cash—and the activities of the Fair Work Ombudsman in relation to those underpayments. The IWUA sent you a copy. Have you made yourself, or do you intend to make yourself, cognisant of the Fair Work Ombudsman’s reviews of the underpayment assessments.
Senator Watt: Certainly I will no doubt be informed of the result of the work that the Fair Work Ombudsman is doing.
Senator ROBERTS: Before the 18 months for the overarching inquiry.
Senator Watt: I’m sure the ombudsman will keep me informed of that, as they do on a range of matters.
Senator ROBERTS: Thank you. Have you made yourself, or do you intend to make yourself, cognisant of the One Nation report on this matter, specifically with a view to understanding the CFMEU’s role?
Senator Watt: I haven’t read the report, but you and I have talked about this many, many times at estimates, so I think I’ve got a bit of an understanding of the issues that you’ve raised.
Senator ROBERTS: You’ve always been sceptical, but I encourage you to read the report.
Senator Watt: I’m sure it’s top-quality work, coming from you, Senator Roberts.
Senator ROBERTS: Well, we commissioned it. I didn’t do it.
Senator Watt: Oh, okay.
Senator ROBERTS: I just informed some parts of it.
Senator Watt: I’m sure it would have been better if you’d written it yourself.
Senator ROBERTS:Have you investigated, or do you intend to investigate, the historical activities of the CFMEU where the CFMEU either negotiated, oversaw, were aware of, approved, endorsed or were a party to the agreements that are in discussion?
Senator Watt: My recollection is that those complaints that have been made have been investigated previously and, in some cases, are still being looked at. I’ve got full confidence in the authorities that are looking into those matters.
Senator ROBERTS: They haven’t been investigated yet.
Senator Watt: I think there has been some work looking at the veracity of those allegations. From what I’ve seen, there’s a different view compared to what has been put forward by that group of people. I respect the fact that you believe in and support the people who’ve made those complaints. I guess there’s a different point of view.
Senator ROBERTS: On notice, could I have copies of that advice, please.
Senator Watt: I’ll get you anything that we’ve got, yes.
Senator ROBERTS: Have you investigated or do you intend to investigate whether officers of the CFMEU or persons associated with the CFMEU engaged in any collusive activity such as conspiring with other people or entities to enable the underpayment of casual labour hire coalminers?
Senator Watt: Senator Roberts, we should make the point that when you’re talking about the CFMEU you’re talking about what was the mining and energy division of the CFMEU. It’s now a separate union.
Senator ROBERTS: It’s the Mining and Energy Union now.
Senator Watt: There’s been a lot of discussion about the CFMEU today, and we’re not talking about the construction division. Again, my understanding is that a number of those matters have been looked at already— or, at least, you’ve had them referred to authorities. I’d be relying on the work that’s already happened there.
Senator ROBERTS: Could you, on notice, give us copies of what you’re relying on.
Senator Watt: Sure. I thought, Senator Roberts, that you had actually referred some of these matters to authorities for investigation already. If I’m right in thinking that, I’ll come back to you on what’s happened. If I’m not right about that, then I’d encourage you to refer those, whether it be to the Fair Work Ombudsman or to other groups.
Senator ROBERTS: I think the correct avenue is now being followed by the miners.
Senator Watt: Exactly, so we’ll wait and see the outcome of that.
Senator ROBERTS: If you have anything on what the department has done with it, I’d like to see that.
Senator Watt: Sure.
Senator ROBERTS: Thank you. Given the alleged extensive criminal activity within the CFMEU—I know that was a different division, but the divisions do talk—have you investigated or do you intend to investigate whether any criminal activities, such as bribes or other things, could have resulted from or were a feature of the CFMEU’s involvement with the enterprise agreements, resulting in a shameful massive underpayment of casual coalminers? It seems it could not have happened without this.
Senator Watt: I don’t think anyone has ever produced any evidence of bribes or corruption involving the Mining and Energy Union or, previously, the mining division of the CFMEU. If you’ve got evidence of that, then I would strongly encourage you to refer that to the police for investigation, but I’m not aware of any evidence.
Senator ROBERTS: I believe that two miners that I accompanied, along with a barrister in my office, gave evidence to the Department of Employment and Workplace Relations and to the former minister’s staff—Minister Burke.
Senator Watt: Okay. I’ll take a look at what happened with that. As I say, if you’ve got evidence of someone taking a bribe or engaging in corrupt activity, then I’d strongly encourage you to take that to the police. They’re the authority who can lay charges.
Senator ROBERTS: Do they involve the Fair Work Ombudsman as well? They’d be interested in the motive, wouldn’t they?
Senator Watt: I think what would typically happen, if you’re talking about bribery, corruption or criminal offences—if they came to the attention of the Fair Work Ombudsman, the ombudsman would refer them to the relevant police. The Fair Work Ombudsman has responsibility for enforcing workplace laws, so offences against the Fair Work Act, but criminal offences, whether it be bribery or any other criminal offence, are a police matter.
Senator ROBERTS: To remind you, Minister Watt, this is Australia’s largest wage theft case. It’s outside the legislation that’s been passed since you came to office, and it’s not due to a loophole. Fixing the wage theft and preventing recurrence simply require compliance with the Black Coal Mining Industry Award. Did the government introduce the so-called closing loopholes bill to hide and bury Australia’s largest wage theft case?
Senator Watt: No.
Senator ROBERTS: There were no loopholes that enabled this. It was just straight-out noncompliance with the award.
Senator Watt: No, that’s not why we introduced the law.
Senator ROBERTS: Okay.
Senator Watt: We introduced the closing loopholes laws to, among other things, fix the labour hire rort that was being used by some employers.
Senator ROBERTS: This is the rort, Minister Watt.
Senator Watt: What I’m saying is that the purpose of our introducing the legislation was, among other things, same job, same pay. As I’ve pointed out to you before, Senator Roberts, you didn’t support that law.
Senator ROBERTS: Because there was no loophole. This is the cause of the underpayment. This is the cause of Australia’s largest wage theft case.
Senator Watt: If you didn’t think there was a loophole with coalmining labour hire workers getting underpaid, then I don’t agree with you. I think that was a massive loophole that was being exploited.
Senator ROBERTS: It was just noncompliance with the award. Given the extreme wealth of the CFMEU, have you or do you intend to investigate and consider whether you have, at minimum, a moral obligation to cause the CFMEU to financially contribute to compensation to affected coalminers who have been underpaid? Can you do that?
Senator Watt: I’ll take that on notice.
Senator ROBERTS: Okay. Can the CFMEU administrator do that?
Senator Watt: No, because—I wouldn’t think so, because the CFMEU administrator is responsible for the Construction and General Division of the CFMEU not the Mining and Energy Union, which is a standalone union these days.
Senator ROBERTS: Can you legislate to force those responsible for Australia’s largest wage theft case to pay the miners what they’re owed, if the findings show that?
Senator Watt: I guess, theoretically, governments can legislate on anything, as long as they’ve got a constitutional basis for that legislation.
Senator ROBERTS: I’m pleased to hear that.
Senator Watt: You could bring in a private senator’s bill. I probably shouldn’t have suggested that, should I?
Senator ROBERTS: Thank you, Minister Watt. Thank you, Chair.
Senator Watt: Can I say this really quickly. Senator Roberts, we’ve had a bit of a joke as we’ve gone along, but we take any report about wage theft seriously. All I can do is keep encouraging people like yourself, if you’ve got evidence of things—there are bodies whose role it is to investigate these things, and I’d encourage you to take them forward.
Senator ROBERTS: Yes. The Independent Workers Union of Australia is showing its mettle.
Senator Watt: They can make complaints to the Fair Work Ombudsman.
I inquired with the Department of Employment and Workplace Relations (DEWR) about the breach of Section 83 of the Constitution mentioned in their Annual Report regarding improper payments received by Coal LSL. This issue was not noted in the Coal LSL Annual Report for 2022-2023.
DEWR identified the breach in April 2023. It was discovered that several entities had paid levies to Coal LSL that should not have been paid. The funds were then paid to DEWR and deposited into consolidated revenue, where they were subsequently pooled and returned to Coal LSL from that revenue.
DEWR acted diligently to identify the error, highlighting the loose manner in which Coal LSL manages other people’s money.
Transcript
Senator ROBERTS: Thank you all for being here today. Here we go again. My questions are very short. They involve Coal LSL or your interaction with Coal LSL. Is it true that the Coal LSL annual report for 2022-23 states that no compliance issues were reported to the minister?
Senator Watt: I know Coal LSL will be appearing later tonight. I’ll just check whether we’re in a position to answer those questions now, or whether we might need to deal with them later.
Mr Manning: We’re just waiting for one of our colleagues to come from the waiting room downstairs. I don’t know the answer in relation to the annual report and any qualifications completely, but as I understand it there were none in relation to section 83 of the Constitution.
Senator ROBERTS: Thank you. I’d now like to take you to page 101 of the Department of Employment and Workplace Relations Annual Report 2022-23, which says: Coal LSL has identified it may have mistakenly received levy payments from entities that do not meet the definition of ’employer’ for the purposes of the Coal Mining Industry (Long Service Leave) Administration Act 1992. If so, payment of amounts equivalent to the levy by the department to Coal LSL in relation to those entities would likely have been made in contravention of s 83 of the Constitution.
Mr Manning: Yes, and that was the point I was getting to. Because of the way the money is collected under that scheme, a levy that’s collected is done by Coal LSL acting as an agent of the Commonwealth—because only the Commonwealth can levy taxation—and then goes into consolidated revenue. Then the same amounts go back out to allow Coal LSL, no longer acting as agent of the Commonwealth, to pay money for the purposes for which it exists. In the circumstances of section 83, it would technically be the Commonwealth, as represented by the Department of Employment and Workplace Relations, who, if there is a breach, has committed that breach. That’s why it’s in our annual report.
Senator ROBERTS: I guess I’m concerned because—what you’ve said in your report is accurate, I presume: Coal LSL has identified it may have mistakenly received levy payments from entities that do not meet the definition of ’employer’ … So they shouldn’t have taken that money.
Mr Manning: My understanding is there is a small number of employers who are not national system employers from whom the levy shouldn’t have been collected.
Senator ROBERTS: The report says: Coal LSL has assured the department that it is conducting further investigations to confirm how many entities may have incorrectly paid levy and quantify any corresponding amounts that have been paid by the Commonwealth without a valid appropriation. It looks like the money has been collected from individual entities by Coal LSL, sent to you and then it has gone back as a lump sum. Is it true that you have confirmed that the information relating to Coal LSL in your annual report is correct?
Mr Manning: That’s our understanding. I might just ask my colleagues, who have now been able to join us, if they have anything to add to that. As I understand it, the issues are still being worked through between the department and Coal LSL.
Mr Kerr: What my colleague Mr Manning has said is correct. Our understanding is that Coal LSL may have mistakenly received levy payments from employers who do not meet the definition of ’employer’ under the scheme. Mr Manning has correctly described the money flows—essentially, the amounts collected by Coal LSL flow in and out of the consolidated revenue fund in the department. That’s the standard approach for taxation revenues that all go in to CRF. As a result, that’s led to a section 83 breach that we have disclosed in our annual report. So all of that’s correct.
Senator ROBERTS: I find Mr Manning is usually pretty correct.
Mr Kerr: Indeed.
Mr Manning: Thank you; I’m always appreciative of the confirmation that I’ve got it right.
Senator ROBERTS: You weren’t even nervous while he was saying it. You weren’t waiting on the edge of your seat. How did the department become aware of these serious issues when it was not identified in Coal LSL’s annual report?
Mr Kerr: I believe we became aware of it in the context of considering some legislative amendments to the scheme.
Senator ROBERTS: When was the breach first detected?
Mr Kerr: I believe it was in April 2023.
Senator ROBERTS: Who identified the likely breach of section 83 of the Constitution? Was it Coal LSL or DEWR?
Mr Kerr: No, it was the department.
Senator ROBERTS: What is the outcome so far of the investigation into this matter?
Mr Kerr: The department has been working with Coal LSL to seek to clarify the scope of the problem. I understand that Coal LSL has undertaken some assurance activities to review the current active registered employers to identify affected entities, which is not an entirely straightforward endeavour.
Senator ROBERTS: Nothing much is straightforward in Coal LSL.
Mr Kerr: Indeed. As part of that review, Coal LSL has updated its records and introduced some new procedures to mitigate the risk of new ineligible employers being onboarded, and probably Coal LSL is best placed to speak to that later.
Senator ROBERTS: We will be tonight.
Mr Kerr: From the department’s point of view, we’re working closely with Coal LSL and other relevant Commonwealth agencies to try and clarify the scope of the issue and settle a way forward to resolve it.
Senator ROBERTS: So you’re still clarifying the scope.
Mr Kerr: That’s correct.
Senator ROBERTS: How was it detected? You said it was while doing some legislative enhancements.
Mr Kerr: Yes. The department was considering some potential legislative amendments to the scheme.
Senator ROBERTS: To the Coal LSL legislation?
Mr Kerr: Yes, correct.
Senator ROBERTS: In what year?
Mr Kerr: In 2023. In the course of that, we were considering the operation of the scheme and uncovered this issue.
Senator ROBERTS: Thank you for your diligence. What checks and balances does the department have in place to confirm that the payroll levy taxes collected are true and correct?
Mr Kerr: The department has obtained legal advice in relation to this matter, but to a large degree we rely on the information provided by Coal LSL with respect to the amounts of levy collected. As we are required to do under section 36 of the Coal Administration Act, the Commonwealth role here is really to withdraw amounts equivalent to the levy collected by Coal LSL out of CRF and pay it back to them, with the effect being that the amount collected ultimately ends up in the Coal LSL fund. So, from the department’s point of view, we rely quite heavily on the information provided by Coal LSL about those amounts.
Senator ROBERTS: What is DEWR doing to remedy this breach? I know you said that you rely a lot on Coal LSL; I understand that.
Mr Kerr: The consequences of a section 83 breach are dealt with in some guidance put out by the Department of Finance. Essentially, what an entity is required to do if concerned that an appropriation may have been spent in breach of section 83 is to conduct an appropriate risk assessment which may include legal advice, which we have done, and also to undertake a section 83 breach disclosure, which we’ve also done in the annual report that you just referred to.
Senator ROBERTS: There’s not much you can do in regard to prevent it happening again.
Mr Kerr: I think I’d say that we’re working closely with Coal LSL and other Commonwealth agencies, including the Department of Finance, to confirm which employers and employees have been affected and the options for addressing these.
Senator ROBERTS: Minister, I’m asking for an opinion now. Was this disaster another example of Coal LSL’s incompetent best or an indication of the loose way that Coal LSL uses other people’s entitlements, and that has not started since Labor came into office; that’s preceding Labor coming into office. I’m heartened by what Mr Manning and Mr Kerr said.
Senator Watt: Technically, we can’t give opinions but—
Senator ROBERTS: Ministers can. That’s why I asked the minister.
Senator Watt: Me, have opinions? Look, we support the work of the Coal LSL agency. Obviously, the department is taking you through a range of issues that are being considered and we’re supportive of that work as well.
Senator ROBERTS: It seems DEWR has done its due diligence and done the job. I’m very concerned because—Coal LSL, at its core—the key issue we exposed in 2019. It took a long time for the government to say, ‘Okay, we finally agree with you.’ It took a lot of things to come out and I’m not sure it’s been fixed yet. Thank you, Chair.
