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.
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 submitting complaints to the Fair Work Ombudsman (FWO). For example, a miner has been underpaid $211,000 and some miners have had at least $41,000 stolen per year of employment.
In this session with the Fair Work Commission (FWC), I asked Mr Furlong, General Manager of FWC, how many applications for regulated Labour Hire Agreements were currently under the Commission’s consideration. He stated that 55 applications had been submitted, with 11 Orders made—9 in the mining industry and 2 in the meat processing industry.
I then asked a series of questions about the relationships between Awards, Regulated Labour Hire Agreements, and Enterprise Agreements. Mr Furlong confirmed that, under the Labor government’s recent legislation, it’s standard for casual workers performing the same job as full-time workers under a Regulated Labour Hire Agreement to receive an additional 25% in pay as compensation for entitlements they do not receive. Mr Furlong agreed to look into which Awards would have applied in the absence of Labour Hire Agreement Orders and provide that information on notice.
I’ve raised this issue at every senate estimates hearing since late 2019 and finally the Fair Work Commission and Minister seem to be taking this issue seriously. Until recently, bureaucrats and Ministers have been in denial of what has been happening right under their noses and that raises questions of integrity.
Australia’s largest wage theft case has been possible only with the participation of the relevant union bosses in the CFMEU/MEU, labour-hire firms, mine owners and the FWC’s approval.
Transcript
Senator ROBERTS: I’m interested in exploring the nature of labour hire arrangements and their relationship with associated awards, and also partly the CFMEU administrator. What’s the total number of labour hire arrangements currently before the commission to date?
Mr Furlong: I might start here and then ask Ms Scarlett to assist. My understanding is that to 30 September we’ve received 55 applications for regulated labour hire authorisation orders. And of that—
Senator ROBERTS: What do you mean by ‘regulated’?
Mr Furlong: Of that number?
Senator ROBERTS: No, what does the term ‘regulated’ refer to?
Mr Furlong: That’s the term—
Senator ROBERTS: ‘Come before you guys’?
Mr Furlong: given under the loopholes mark 1 changes. In terms of the number of orders that have been made, there are 11. Nine of them, I understand, are in the mining industry and two are in the meat-processing industry. Ms Scarlett, is there anything you’d like to add?
Senator ROBERTS: That number was how many?
Ms Scarlett: It was 55. As Mr Furlong has said, 11 labour hire arrangement orders have been issued since the commencement of the provisions.
Senator ROBERTS: What sorts of orders?
Ms Scarlett: Regulated labour hire arrangement orders. Of the 55 applications, 11 orders have been made, a number of applications have been withdrawn and the remaining matters remain before the commission.
Senator ROBERTS: What’s the breakdown of these labour hire arrangement orders for each award that would otherwise have covered the employees? You might have to take that on notice.
Ms Scarlett: Yes. I’m not sure that we can go to the award. The regulated labour hire arrangement orders apply where there is a covered employment instrument such as an enterprise agreement in place. So it’s not necessarily an assessment of the award which applies, rather whether an enterprise agreement is in place that would cover the work of the labour hire employees if they were working in the business.
Senator ROBERTS: The enterprise agreement would be in an industry or work site that is covered by an award, but the enterprise agreement supersedes the award; is that right?
Ms Scarlett: That’s correct.
Senator ROBERTS: So would there be any such sites that only have an enterprise agreement and no back-up award?
Ms Scarlett: I don’t believe there would be, but I’d need to take that on notice.
Senator ROBERTS: If you could, please do. I’d like to know the connection to the award, or to the award that would be in place if the enterprise agreement wasn’t there?
Ms Scarlett: I understand.
Senator ROBERTS: Can you advice whether there would be a general expectation that anyone working as a casual should or would receive 25 per cent more than a full-time employee doing similar or the same work?
Ms Scarlett: The regulated labour hire arrangement order provisions provide for a 25 per cent casual loading for regulated labour hire employees.
Senator ROBERTS: Casuals.
Ms Scarlett: Casuals.
Senator ROBERTS: Can you advice if there is specific legislation, regulation or policy that requires that a casual employee should or would receive 25 per cent more than a full-time employee doing similar or the same work? I know that it’s a community expectation and it’s a right almost, but is it enshrined in law, statute or policy?
Ms Scarlett: I’m not aware of a specific provision in legislation that requires a 25 per cent loading.
Senator ROBERTS: Are you able to check that?
Ms Scarlett: Yes.
Senator ROBERTS: You’ll take on notice to check it? It is fairly normal that awards require casual employees to receive 25 per cent more than a full-time employee doing similar or the same work? Can you point to any award that does not require a casual employee to be paid 25 per cent more than a full-time employee doing similar or the same work?
Mr Furlong: I can’t point to an award, but I’ll happily take it on notice. There are 155 modern awards, Senator.
Senator ROBERTS: Yes, so I’d like to know if that’s normal.
Mr Furlong: Can I clarify the question so we make sure that we provide you with the information that you require?
Senator ROBERTS: Yes, sure. Is it fairly normal that awards require casual employees to receive 25 per cent more than a full-time employee doing similar or the same work? That’s the first part.
Mr Furlong: Yes.
Senator ROBERTS: The second part is: can you point to any award that does not require a casual employee to be paid 25 per cent more than a full-time employee doing similar or the same work?
Mr Furlong: We’ll take it on notice.
Senator ROBERTS: Thank you, Mr Furlong. In applying the better off overall test, the BOOT, to enterprise agreement applications, would it be the normal expectation of the Fair Work Commission, having regard to pay rates of casual workers, that casual employees should or would receive 25 per cent more than a full-time employee doing similar or the same work?
Mr Furlong: I will ask Mr Corcoran to assist you, Senator.
Mr Corcoran: Each application is considered on its own merits by the member. They take into account the circumstances in their entirety. It’s not a line-by-line assessment that the member will make; the better off overall test is a global assessment.
Senator ROBERTS: A global assessment. If an award did not allow for casual employment, would this create the circumstance in which casual employees working under enterprise agreements subject to the set award would be paid less than full-time employees and/or be paid a rate that would be less than that of a full-time employee plus 25 per cent?
Mr Corcoran: A casual employee wouldn’t be paid less than a full-time employee, I wouldn’t have thought, in normal circumstances.
Senator ROBERTS: A casual employee would be paid less than a full-time—
Mr Corcoran: I thought they would not have been paid less.
Senator ROBERTS: Sorry. And they’d be paid full time plus 25 per cent?
Mr Furlong: With some of these questions, I return to the correspondence I provided you on 11 January this year regarding information published on your website but also relating to the better off overall test and the Chandler Macleod Northern District of NSW Black Coal Mining Agreement 2015. I’m not too sure if you still have access to that correspondence.
Senator ROBERTS: I do. It’s sitting on my desk—with an intent to reply.
Mr Furlong: This series of questions has been covered in that correspondence. I’m happy to table it, if that would assist.
Senator ROBERTS: No, that’s fine; I know exactly where it is on my desk. Can you envisage a circumstance in which, if a union objected to an enterprise agreement because the pay rate of casuals would be less than that of a full-time employee plus 25 per cent, the Fair Work Commission would ignore the objections of the union and endorse the agreement despite the union’s objections?
Mr Furlong: As we’ve discussed several times, the better off overall test, as Mr Corcoran said, is a global assessment to ensure the employees are better off overall. It is always determined by a member of the commission. Members, as you’re aware, are independent statutory office holders who are required to ensure that, in their decisions, they are satisfying the obligation, functions and prescribed content of the enterprise agreements before they can be satisfied and then ultimately approve the decision to make the agreement operational. If a party to that agreement or someone who has a valid interest in that agreement is unsatisfied, is concerned with that agreement application, they can seek to have the agreement overturned through the mechanism of an appeal; that is their right. The other thing I’d like to add here—
Senator ROBERTS: Just on the answer to that question: would the commission ignore the objections in assessing the enterprise agreement? Would the commission ignore the objections of the union as part of that? I’m not talking about passing it and then objecting to it; I’m talking about objecting as they’re processing it.
Mr Furlong: Prior to the application being made?
Senator ROBERTS: Yes.
Mr Furlong: It would be the subject of deliberation of a member before the tribunal.
Senator ROBERTS: It’d be pretty unlikely, though, wouldn’t it?
Mr Furlong: I can’t speak on behalf of our members and their independent decision-making.
Senator ROBERTS: Have you ever seen a member overturn a union objection?
Mr Furlong: As we’ve discussed, my role is to provide administrative support to the president of the commission to ensure—
Senator ROBERTS: It’d be pretty unlikely, wouldn’t it?
Mr Furlong: I can’t answer that.
Senator ROBERTS: Alright. I cut you off there.
Mr Furlong: I was just going to say that if an agreement has reached or passed its normal expiry date, then a party to that agreement can seek to have the agreement unilaterally terminated. They will then fall back to the underpinning award—or they can have the right to negotiate a new enterprise agreement.
Senator ROBERTS: Thank you for the extra detail; it goes outside what I’m looking for. In the process of getting approval for an enterprise agreement from the Fair Work Commission, if a union objected to an enterprise agreement because the pay rate of casuals would be less than that of a full-time employee plus 25 per cent, the Fair Work Commission would hardly ignore the objections of the union and endorse the agreement despite the union’s objections.
Mr Furlong: It’s a case-by-case basis, on the information provided to the members in the consideration of whether or not—
Senator ROBERTS: What would be the likelihood? Have you heard of any?
Mr Furlong: As I said, it’s not my role to comment on cases determined by members of the commission. It’s my responsibility to provide the president with administrative support, as the general manager, to ensure the commission can operate effectively.
Senator ROBERTS: I’m not asking you for your opinion.
Mr Furlong: I can’t comment on cases that come before the commission.
Senator ROBERTS: I’m not asking you to. I’m not asking for your opinion on the member making the decision. I’m asking: would it happen, and has it happened?
Mr Furlong: I don’t have any oversight of particular cases that move through the tribunal side of the commission.
Senator ROBERTS: Would anyone else care to comment? It seems to me to be almost impossible; I won’t say it is impossible!
Mr Corcoran: I would say a member would always consider the views of the parties, but ultimately the member must be satisfied that the requirements of the act have been met.
Senator ROBERTS: Thank you. I have some questions for the minister; I think most of them will be pretty simple, Minister. I table this letter from the Independent Workers Union of Australia; it’s the letter that was sent to the CFMEU administrator, copied to you, me and Senator Cash. I think these questions will be fairly simple, given your background, Minister. Why is the CFMEU administrator not here at Senate estimates?
Senator Watt: They’re not a public official. I think pretty much every person who attends estimates is either a minister or a public servant. The administrator is not a public servant. There are probably other reasons but that would be one of them.
Senator ROBERTS: Who pays his salary?
Senator Watt: He’s being paid by the CFMEU in the same way that officials of the union have traditionally been paid.
Senator ROBERTS: That explains that. What responsibilities does the CFMEU administrator have with or to the Fair Work Commission? I imagine he’d have to deal with them a fair bit.
Senator Watt: Mr Furlong might be better placed.
Mr Furlong: Under the registered organisations act, I am the regulator of registered organisations.
Senator ROBERTS: So you’re overseeing it?
Mr Furlong: I oversee all the registered organisations, employer and employee alike.
Senator ROBERTS: Could the CFMEU administrator authorise payment of the underpaid miners from the CFMEU mining division using CFMEU funds?
Mr Furlong: I can’t speak on behalf of the administrator. I don’t think you were here for this section of my evidence: the administrator operates independent of government. He will make decisions on behalf of the union as he sees fit.
Senator ROBERTS: Can he investigate wage theft from casual miners in Central Queensland and the Hunter Valley?
Mr Furlong: In representing the interests of his members, he can look into the underpayments. It’s a core function of trade unions to do that.
Senator Watt: Noting that the administrator is the administrator of the Construction and General Division of the CFMEU. To use the colloquial, his members are members of the Construction and General Division of the CFMEU, not, for example, members of the maritime division and certainly not people who are now members of the Mining and Energy Union. His only responsibility is for the Construction and General Division, and its members.
Senator ROBERTS: The government said it needed the parliament to create the CFMEU administrator to deal with alleged CFMEU illegality and criminality, didn’t it—amongst other things?
Senator Watt: I might look back at what we said. We had a debate this morning about it. It’s not possible for me to go into the intention of the administration because of the High Court litigation. I’m sure you can look back at what was said in the second reading speech.
Senator ROBERTS: That was my impression, so correct me if I’m wrong. Now, management of this is not subject to parliamentary scrutiny. You said it would be a matter of immense public importance.
Senator Watt: I think there has been a lot of public interest in this issue.
Senator ROBERTS: Yes—so wouldn’t it be better to have him subject to parliamentary scrutiny and Senate estimates?
Senator Watt: I’m looking around at our lawyers. I might get Ms Godden, the departmental chief counsel, back up, if that’s okay. I know departmental people don’t normally appear at the table for this. Senator Roberts, I don’t know if you were here this morning but we had a discussion about issues that we could answer questions on and issues that we couldn’t because they might involve the High Court case. I don’t want to say anything which will interfere with that, and I know you don’t want me to either. Could you ask the question again, so I can get some advice on whether I can answer that.
Senator ROBERTS: My understanding is the government said it needed parliament to create the CFMEU administrator to deal with the alleged CFMEU illegality and criminality. Now the oversight of the CFMEU administrator is not subject to parliamentary scrutiny, and yet it was said to be a matter of immense public importance.
Senator Watt: I have no doubt it’s a matter of great public interest. I was saying before to Senator Payman that either the legislation or the scheme of administration requires the administrator to provide a report to me every six months, which I’m required to table in the parliament, so there is a form of parliamentary accountability through that. That was considered to be the appropriate amount of reporting for a role that is completely independent of government.
CHAIR: Senator Roberts, I know you’ve been very patient during the day, but this is—
Senator ROBERTS: Given a report in the media on 12 April this year—I mentioned this in a speech in the Senate, but there was no answer to it—is the real reason for the CFMEU being placed in administration to stop John Setka taking over Labor in Victoria, as he reported? And why wouldn’t constituents be suspicious of the arrangement?
Senator Watt: As I said in response to an earlier question, I’d really like to be able to answer that question but it’s probably not wise that I do given the High Court litigation.
Senator ROBERTS: Thank you, Chair.
Senator Watt: But I’m told you might want to have a look at paragraph 11 of the revised explanatory memorandum, which provides some reasoning for the legislation.
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.
During my questioning of the Fair Work Commission, I highlighted the fact that when Coal LSL included casual coal miners, it opened the door to labour hire scams and in collusion with the corrupt CFMEU, cost individual miners up to $40,000 per year.
Labor is now attempting to stifle competition to remove miners’ choice regarding union membership as the RED Union gains traction by supporting thousands whose union fees have historically funded the Labor Party.
I also detailed a series of breaches by the labour hire company and BHP, leading to a compensation claim by Mr. Simon Turner, which the Minister dismissed.
Transcript | Session 1
Senator ROBERTS: Thank you, Mr Furlong and your team, for being here again. My first set of questions relates to my recent Senate second reading amendment to a recent Fair Work Act amendment bill. The Senate amendment required the government to conduct an investigation into massive wage theft in the coal mining industry. I’ll read the relevant portions: ‘Clause B—the Senate requires the government to investigate claims that casual miners working under enterprise agreements in the black coal mining industry are and have been underpaid. Clause C—if underpayments are found to have occurred, facilitate the reimbursement of the underpayments’. In regard to this, which is Australia’s largest wage theft case, totalling possibly over $1 billion and involving thefts of up to $40,000 per year per miner for many years and stealing from more than 5,000 miners, we believe, are you aware of the Senate’s second reading amendment requiring the minister to investigate the wage theft?
Mr Furlong: Senator, I can’t speak to the veracity of the claims that you’ve just made there.
Senator ROBERTS: That’s not my question.
Mr Furlong: What I can say is that I am broadly aware of what you’re referring to.
Senator ROBERTS: Thank you. Has there been any discussion between the minister and the Fair Work Commission or any Fair Work Commission officials?
Mr Furlong: No, nor would it be appropriate.
Senator ROBERTS: Between the department and the Fair Work Commission or any Fair Work Commission officials?
Mr Furlong: Not that I’m aware of, Senator.
Senator ROBERTS: Has the department received from the Fair Work Commission or made to the Fair Work Commission any instructions on this matter?
Mr Furlong: No, nor would it be appropriate for us to instruct the department on anything.
Senator ROBERTS: Has Minister Burke or the Department of Employment and Workplace Relations discussed with you or Fair Work Commission officials the nature of the investigation the Senate required him to make into the wage theft case involving central Queensland and Hunter Valley miners?
Mr Furlong: No, Senator.
Senator ROBERTS: Have any of his staff raised it with you?
Mr Furlong: I might have to take that on notice. There may have been conversations at the officer level, but I’m certainly not aware of any. I haven’t participated in any.
Senator ROBERTS: Thank you. Do you expect any role in the investigation?
Mr Furlong: As we’ve traversed at estimates previously, the role of the general manager, my role, is to assist the president in sharing the functions that the Fair Work Commission perform in an efficient way, essentially. Will there be a role—I can’t envision that there would be a role there for the commission, no.
Senator ROBERTS: Not for anyone from the Fair Work Commission?
Mr Furlong: Well, it’s hard to talk in the abstract on this. In terms of the context, the letter that I sent to you from 11 January contained a significant amount of information about the operations and the functions of the Fair Work Commission that relate to the making and the approval of the enterprise agreements, including the application of the better off overall test, the approval of agreements, the process and the legislative checklist that we’ve discussed a number of times. The letter was four pages, but there were 28 pages of attachments that I provided to you to hopefully assist with your understanding of the legislative regime and the role of the Fair Work Commission in relation to this issue.
Senator ROBERTS: Thank you. Minister, yesterday evening you seemed uninterested in the investigation of workers’ wage theft—the biggest in Australia.
Senator Watt: That is a completely unfair characterisation of what I said. I’ve actually got—part of my career has been spent assisting workers to recoup underpayments. I invite you to have a look at my record on those issues. What I was pointing out was that you have raised pretty much the same issues over and over again at estimates hearings over a number of years.
Senator ROBERTS: Yes, and we’ll see why. It’s sad that you have not understood why I’ve continued to raise that. Obviously, my communication needs to improve with you, Minister Watt. Here’s a second chance. What would you expect for a fair and independent investigation? What would the process look like?
Senator Watt: You asked me the same question yesterday, and I said a fair and independent investigation is obviously one that is fair and independent. I’m not trying to be a smart alec in saying that, but we respect the independence of the Fair Work Commission. We’re trying to redress the imbalance in the Fair Work Commission that existed under the former government when they only appointed employer representatives. We’re trying to make it a more even-handed organisation that does have both employer and employee representatives on it. It’s established as an independent organisation and it should be able to operate independently.
Senator ROBERTS: Having said that the Fair Work Commission should operate independently and given Mr Furlong’s responses, what would you think a fair and independent investigation would look like?
Senator Watt: I can’t add anything to what I said today and yesterday.
Senator ROBERTS: Mr Furlong, are you aware that the CFMEU, or MEU or whatever it’s called today, has applied, apparently, under the Fair Work Act same job, same pay provisions for a new enterprise agreement covering a few hundred miners at just two mines?
Mr Furlong: Yes, I’m aware.
Senator ROBERTS: Thank you. CFMEU/MEU notices in central Queensland and Hunter Valley mines have even used my figures for the amount of underpay per miner per year—up to $40,000. This vindicates my work over the last five years—work that the CFMEU/MEU had, in fact, denied and continues to deny, doesn’t it? Their notices are saying that miners are being short-changed $40,000. They’re making that submission.
Senator Watt: I’m happy to—
Senator ROBERTS: My question is to Mr Furlong initially.
Mr Furlong: My initial response to that is that it’s challenging for me to conflate different circumstances in very different cases.
Senator ROBERTS: Minister, perhaps you could answer that.
Senator Watt: What I was going to say is that the Mining and Energy Union has a long and proud history of fighting for mining workers’ underpayments. They were absolutely pivotal to the changes to the law that this government made that you voted against that were about closing loopholes in the labour hire sector which were particularly being abused against mining workers. That has resulted already in at least one case that I’m aware of where those workers have now had their pay rates raised by tens of thousands of dollars. So, yes, the Mining and Energy Union does have a long history of raising these issues. I’ve campaigned with them on it myself, and I think other Labor senators have as well. We’ve now changed the law, and that’s addressing the issue.
Senator ROBERTS: Thank you, Minister. I remind you that I used to be a coalface miner for several years in the Hunter Valley, central Queensland and North Queensland. I also was a very proud member the Miners Federation, because it looked after mine workers extremely well. Minister, do you know that the CFMEU, now the MEU, in its application for improving two enterprise agreements, does not seek back pay? Can you explain why they don’t seek back pay?
Senator Watt: I’m not a representative of that union, so I can’t explain why they included some things and not others in their claim. You’d have to ask the union.
Senator ROBERTS: Would it be possible that the CFMEU/MEU is aware of its support for the previous wage theft and that’s why it’s afraid to raise back pay?
Senator Watt: Well, I’ve already—we had a bit of a chat yesterday about conspiracy theories, Senator ROBERTS. Again, I can’t tell you why a union makes a particular claim and not others. What I do know is that the application that the MEU made involving the Mount Pleasant mine in the Hunter Valley through the Fair Work Commission has resulted in significant wage rises for those workers.
Senator ROBERTS: But they’re not seeking back pay. Minister, your use of labels is a refuge that’s commonly used by the ignorant, the dishonest, the incompetent or the fearful. When you use a label, it shows everyone that you haven’t got the data or the logic or the argument to refute me. So thank you very much for using a label. I’m very happy for you to use a label.
Senator Watt: You’re entitled to have full confidence in your argument, Senator ROBERTS.
Senator ROBERTS: Minister and Mr Furlong, are you aware that the Independent Workers’ Union of Australia has lodged three claims for back pay with the Fair Work Ombudsman?
Mr Furlong: I’m not aware of that, but you have—
Senator ROBERTS: Minister?
Senator Watt: Fair Work Ombudsman or commission?
Senator ROBERTS: Fair Work Ombudsman.
Senator Watt: I’m not aware of that, but they’re entitled to do whatever they want.
Senator ROBERTS: Many miners have joined with the Independent Workers’ Union of Australia in the process of lodging claims with the Fair Work Ombudsman. Are you aware that’s happening?
Senator Watt: No, but people have got a right to join whatever organisation they want. I might just clarify. My understanding actually is that the Mount Pleasant case in the Hunter Valley is ongoing, but agreements have been reached between mining contractors and workers to lift pay on the basis of the laws that were introduced.
Senator ROBERTS: It’s only taken me five years. That’s great to see.
Senator Watt: Well, if you want to take credit for a Labor government law that you voted against, you’re welcome to do so.
Senator ROBERTS: You were so embarrassed, Minister—
Senator Watt: But the record shows that you voted against those laws.
Senator ROBERTS: Minister, speaking of conflicts, are you unavoidably conflicted on this matter because of the many millions of dollars from the CFMEU paid to your Labor party?
Senator Watt: No.
Senator ROBERTS: Minister, does the $48 million from Abelshore, a 100 per cent owned Glencore subsidiary that went from—does the $48 million from Abelshore to the CFMEU in two recent years further conflict you and your party?
Senator Watt: No. I told you I wasn’t even aware of that yesterday.
Senator ROBERTS: Does it still conflict you, even though you’re not personally aware of it?
Senator Watt: I have no idea what you’re talking about—it’s a bit hard to be conflicted when it’s something that you don’t even know about.
Senator ROBERTS: Let’s continue then. On whom can workers rely, Minister?
Senator Watt: A Labor government which has fixed the laws and delivered secure jobs and better pay.
Senator ROBERTS: Well, they can’t rely on large, entrenched unions in monopoly positions, meaning their union bosses have no accountability to members. We’ve seen the CFMEU, MEU, SDA in recent years, HSU and Craig Thomson—they did deals stealing workers’ wages and cutting workers’ wages. This is the unions themselves—the powerful unions.
Senator Watt: I think it’s well understood that you’re not a big fan of unions and that you’ve voted against every piece of legislation we’ve ever tried to introduce to lift workers’ wages and provide unions with the ability to negotiate on behalf of their members. It’s okay in a democracy to be anti-union. You’re antiunion. I’m not. The Labor government supports the role of unions in negotiating workers’ pay, but you don’t have to agree with us.
Senator ROBERTS: Minister, it’s poor form to mischaracterise someone and misrepresent someone. I have strongly supported unions—
Senator Watt: You just rattled off—
Senator ROBERTS: or honest unions, because I think it’s the worker’s right to be involved—
Senator Watt: Well, everyone can have a look at your voting record, Senator ROBERTS, and see how supportive you’ve been of the unions.
Senator ROBERTS: We’ll proceed with that. Can workers rely upon employers such as some of the labour hire firms?
Senator Watt: I don’t think you can generalise, but I think there have been many examples where labour hire firms have exploited their workforce and have been assisted in that by host employers. That’s why we changed the laws to overcome the loophole that labour hire firms and host employers were using to cut people’s pay. Again, Senator ROBERTS, you voted against us.
Senator ROBERTS: And we’ve discussed why. Can they rely upon Chandler Macleod, which is a subsidiary of Recruit Holdings and has contracts for supplying casual workers to your government?
Senator Watt: I’m not going to comment on individual companies, Senator ROBERTS. I don’t know enough about the individual company’s record to comment on them.
Senator ROBERTS: Can workers rely upon the Fair Work Commission that approved the illegal enterprise agreements?
Senator Watt: I think workers can rely on the Fair Work Commission to be an independent organisation, now that we are restoring some balance to it, and that it will operate within the law.
Senator ROBERTS: Thank you.
Transcript | Session 2
Senator ROBERTS: Minister, I’ve been going through the list of entities or groups of entities that workers can possibly turn to. So far we haven’t found one that they can turn to. What about government? Can workers rely on government?
Senator Watt: Is that a general proposition?
Senator ROBERTS: I’m looking for people who can support workers.
Senator Watt: Senator ROBERTS, you’d have a lot more credibility on this if you had ever voted with the government for any of the changes we’ve made to protect workers. We passed some legislation recently. It was in the name of the bill: it was called the secure jobs, better pay bill. Have a guess what it was about: secure jobs and better pay. Have a guess how you voted: you voted no. We give you opportunities to vote for workers. We are protecting workers and you keep voting against it. You keep voting with the coalition.
Senator ROBERTS: Did you know, Minister, that miners tell me that, in their research on the Hunter Valley and central Queensland wage theft, that, when Mr Bill Shorten was workplace relations minister in Julia Gillard’s government, he made the key step that unlocked and enabled the abuse of casual workers? Did you know that?
Senator Watt: I did not know that some mining workers somewhere said that about Bill Shorten when he was a minister more than 10 years ago. No, I did not know that.
Senator ROBERTS: Despite the Black Coal Mining Industry Award not allowing casual coal mine workers on production, Mr Shorten apparently changed the coal long service leave regulations to allow casual coal miners to receive long service leave accruals. Were you aware of that?
Senator Watt: No, I wasn’t in the parliament.
Senator ROBERTS: That opened the door for the CFMEU and labour hire companies to fabricate the permanent casual rort. That’s why, five years ago, I started holding Coal LSL, the Fair Work Commission and Fair Work Ombudsman accountable. Do you understand now why I started with the Coal LSL agency?
Senator Watt: I’m sure there would be different views on that. That’s obviously your view. It’s a view you’ve pursued relentlessly in estimates committees over many years.
Senator ROBERTS: Thank you for the compliment.
Senator Watt: The government has done a lot of work in the meantime to assist coal mining workers, all of which you voted against, unfortunately.
Senator ROBERTS: Minister, as a result of my work, mine workers watched as the LNP, in my opinion, avoided the core of the issue, but it did do a review of the coal long service leave provisions that may one day lead to improved governance within the Coal LSL. Are you aware of what the LNP did there?
Senator Watt: No.
Senator ROBERTS: Mine workers continued watching in recent years as your government—in the last two years—under Minister Burke, did its best to cover up the permanent casual rort with amendments to the Fair Work Act. Some workers think that was done to protect the CFMEU and its role in the permanent casual rort. Your government has done its best to hide this issue despite support I’ve received from senators, such as Senator Sheldon and Senator Sterle. Why should workers rely on governments—on Labor governments in particular?
Senator Watt: Because we pass legislation called things like secure jobs and better pay that result in—
Senator ROBERTS: Called things like?
Senator Watt: Secure jobs and better pay.
Senator ROBERTS: What about state governments?
Senator Watt: We’re not going to get into state governments in a federal estimates hearing, are we— seriously.
Senator ROBERTS: The Palaszczuk Miles state government—this is very important for accountability of unions, Minister, because I’m a very strong supporter of accountable unions. Indeed, the Palaszczuk Miles government is banning competitors to the Queensland Nurses and Midwives’ Union, such as the Nurses Professional Association of Queensland. It’s banning competitors such as the Teachers’ Professional Association of Queensland which competes with the Queensland Teachers’ Union. They’re banning or trying to ban the Red Union, apparently, in attempts to protect the Queensland nurses union and Queensland Teachers’ Union donations to the Labor Party. Are you aware that’s what’s going on in Queensland? We have legitimate unions being banned by a state Labor government.
Senator Watt: I’m aware of the issue in broad terms, but you’ve got a—the last I heard was that you had a One Nation member of the state parliament. It sounds like a very good issue for him to raise in State estimates, and we can deal with federal estimates and federal issues here.
Senator ROBERTS: We are dealing with this issue. The Red Unions and the new Independent Workers Union of Australia charge around half. In fact, for the Independent Workers’ Union of Australia that’s vying for members with the Mining and Energy Union in the Hunter and central Queensland, 43 per cent of the Labor affiliated union fees—because these unions—the Red Union and the Independent Workers’ Union of Australia— refuse to hand members’ money to political parties. Are you aware of that, Minister? Their fees are less than half.
Senator Watt: I’m certainly aware that there are a number of LNP-backed groups that masquerade as unions and that have been created with a view to undermining the legitimate unions that have been fighting for workers in Queensland for a long time. I know there’s a very strong link between—
Senator ROBERTS: Where were they when the mandates came in and teachers and nurses lost their jobs?
Senator Watt: If we’re going to get into COVID mandates, there’s a whole other committee that you’ve been dealing with that issue in for years.
Senator ROBERTS: And we’ll continue to. Despite the Queensland legislation, are you aware that the Red Unions continue to grow rapidly among nursing and teaching professionals, with a membership now of over 20,000 strong, expanding into New Zealand and into small business, and now it’s expanding into coal mining? Are you aware of that?
Senator Watt: No.
Senator ROBERTS: Let’s turn to another group that’s supposed to—the Enlighten group—and some of its members may be enlightened—that’s supposed to protect workers. That’s the business owner. Mr Simon Turner, who’s a mine worker, has informed me of the following. The company that owned and operated the mine he was employed at directed him to not report a serious safety incident in which he was critically injured. That’s a statutory breach. They failed to report the accident. That’s a statutory breach. They made him come to work while injured. They sacked him while injured. They falsely changed his onsite digital record. They failed to provide correct workers compensation—a statutory breach of state law. They failed to take the correct coal miners insurance policy—a statutory breach. They failed to provide accident pay—a statutory breach. And so on it goes. They failed to comply with the New South Wales mines health and safety act and New South Wales health and safety act. That company is BHP—the world’s largest mining company. Workers cannot rely on globalist corporations, Minister, especially corporations from globalist labour hire companies that do deals with the CFMEU and the Mining and Energy Union. Where can workers turn?
Senator Watt: I think we’ve all known for a number of years now, Senator ROBERTS, that you’ve got a close relationship with Mr Turner. He’s obviously taken his complaint to you. He’s obviously very unhappy with the union that he is or was a member of. I don’t know the circumstances of that. It’s pretty pointless for me to speculate.
Senator ROBERTS: That leaves one avenue left to protect workers: comprehensive industrial relations reform to simplify industrial relations law so that workers and small businesses can see their entitlements, protections, rights and responsibilities—not buried in 1,800 pages of complex law. Why won’t Labor give workers choice?
Senator Watt: About what?
Senator ROBERTS: You’re protecting entrenched unions that are abusing the industrial relations system because they’re members of the IR club. You’re protecting corporate employers. You’re protecting labour hire companies. Why won’t you give workers the choice to become members of the union that they choose?
Senator Watt: I don’t agree with any of the propositions you just put.
https://img.youtube.com/vi/-oX9ppgSKOM/0.jpg360480Senator Malcolm Robertshttps://www.malcolmrobertsqld.com.au/wp-content/uploads/2020/04/One-Nation-Logo1-300x150.pngSenator Malcolm Roberts2024-06-05 19:22:022024-06-24 16:35:37Labour Hire Scams and Union Corruption
Thousands of casual miners working in Central Queensland and the Hunter Valley are each owed, on average, around $33,000 per year in back pay, making them victims of Australia’s largest wage theft.
During my discussion with Ms. Booth and Mr. Scully, I inquired about the calculator that people can use to determine if they are being paid correctly under an Agreement or Award. It is crucial for workers to be paid at least the award rate of pay.
Ms. Booth described the calculator as an interactive template designed to cover all the awards.
An analysis of five significant labour hire coal mining enterprise agreements operating in Queensland and the Hunter Valley, all involving the CFMEU, revealed that all five agreements underpaid the award – see below. I also asked Ms. Booth to provide information on how many requests for assistance had been made relating to underpayments by the Chandler Macleod Group regarding the black coal industry.
It’s worth noting that in the Black Coal Mining Industry Award, there are no rates of pay specified for casuals, raising questions about how so-called “casuals” can use the FWO pay calculator.
The Five Agreements that Underpaid the Award
Per Person – Per Year – On Average
The Core Staff Enterprise Agreement 2018
$22,600
The FES Enterprise Agreement 2018
$27,000
The Workpac Enterprise Agreement 2019
$33,500
The Chandler Macleod Agreement 2020
$39,340
The TESA Group agreement 2022
$40,000
Transcript
Senator ROBERTS: Thank you for being here again, Ms Booth and Mr Scully.
Ms Booth: A great pleasure, Senator Roberts.
Senator ROBERTS: I refer to the Fair Work Ombudsman website and the black coal mining industry award that asks ‘Pay and entitlements less than the award?’ The Fair Work Ombudsman’s answer is, and I quote,
Employees must be paid at least award pay rates and entitlements.
There’s another instruction or invitation:
If your pay rates are less than the award, go to Help resolving workplace issues to follow our step by step guide on how you can fix it.
Does the Fair Work Ombudsman have a standard process or template it uses to assess whether an employee is being paid less than the award?
Ms Booth: The Fair Work Ombudsman has a pay calculator that allows anyone—an employee or an employer—to provide information as requested. It calculates the correct award rate. That is the case for all sectors.
Senator ROBERTS: So it doesn’t have a template, but an individual can step his or her way through it?
Ms Booth: I think the pay calculator could be described as a template. But it’s interactive. It’s a series of smart forms that you complete and then you get a response at the end which tells you what the award rate is. For further information on the pay calculator, I could turn to my supporters here. Mr Scully, would you like to talk more about the pay calculator for Senator Roberts?
Mr Scully: We call it PACT, which is pay and conditions tool. It is an online calculator that has hundreds and thousands of pay combinations and calculations that can be provided and is tailored to the particular award and classification and the like that the user keys in. It is a very popular tool. I think last financial year, something like 6.4 million people used it. There were something like 7.1 million pay calculations provided, I think, for the year, so it’s widely used by the community.
Senator ROBERTS: So there’s a template that an individual can attempt to check?
Mr Scully: Correct.
Senator ROBERTS: Is that tailored to cover pay rates subject to the coverage of the black coal mining industry award and the rosters that are used in Central Queensland and Hunter Valley?
Mr Scully: It covers all awards, Senator.
Senator ROBERTS: I know it is a very complex situation involving the 12-hour rosters in the Hunter Valley and Central Queensland.
Mr Scully: I would need to check that. I don’t know that it would go to the rosters. It is more awards and classifications. It goes to weekday rates and weekends and shift penalties and the like.
Senator ROBERTS: It’s a very complex roster. People have difficulty. Would the Fair Work Ombudsman agree to undertake an assessment with regard to the application of coal enterprise agreements and provide the outcomes to me?
Ms Booth: The Fair Work Ombudsman certainly will respond to any employee who has a question. We will provide information.
Senator ROBERTS: Is that current employees or can they be past employees?
Ms Booth: I will ask Mr Scully to answer that question on the basis that the info line is available to anyone. We don’t ask people to verify their employment status. I’m going to say that anyone can ring the info line and ask a question. Would that be right, Mr Scully? You would not have to be an employee to ring the info line and ask a question? We don’t seek to verify people’s employment status?
Mr Scully: That is correct.
Senator ROBERTS: I wasn’t thinking about calling up myself. I was thinking about past people who have left the industry but have been underpaid dramatically.
Ms Booth: So when a call comes, information is given. If that information doesn’t satisfy the caller and the caller still has a dispute that they regard as unresolved, we call it a request for assistance. We identify that and we move it through to an assessment team. That assessment team will speak directly with the employer and the employee and attempt to resolve the matter. I think you also know that it will go forward beyond that through inspector support to our investigator and inspectors to conduct investigations should it not be resolved by the assessment team. That is the pathway.
Senator ROBERTS: Thank you. By the way, a team of workplace lawyers, consultants and coalminers reviewed and analysed five significant labour hire coal mining enterprise agreements and the work roster that are operating in Queensland and the Hunter Valley. The CFMEU and the Mining and Energy Union were involved in, or were a party to or signed off on, all five agreements. The Fair Work Commission approved all five agreements. The enterprise agreements all underpay the award. The core staff agreement, for example, 2018 enterprise agreement yearly underpayment is estimated at $22,600. The FES agreement 2018 yearly underpayment is estimated at $27,500. The WorkPac agreement 2019 yearly underpayment is estimated at $33,500. The Chandler Macleod agreement 2020 yearly underpayment of casuals is estimated at $39,341. The TESA Group agreement 2022 yearly underpayment was estimated at over $40,000. But let’s come back. Between 2012 and the present day, could you please provide the number of requests for assistance made regarding underpayments by the Chandler Macleod group relating specifically to the black coal mining industry award and associated enterprise agreements?
Ms Booth: I think we’d have to take a question like that on notice. We collect information at the info line on a range of demographics. I wouldn’t be sure whether we could go to that degree of disaggregation. I think it is important to reinforce that the Fair Work Ombudsman enforces the law as it exists. As you know, a fair work instrument includes an enterprise agreement that has been approved by the Fair Work Commission. We don’t play a role in interrogating the approvability or otherwise of such an instrument. Once it is in existence, we must take it on its face value.
Senator ROBERTS: Thank you. You can take it on notice. Again, in relation to Chandler Macleod and the black coal mining industry award, how many requests for assistance were closed with the following general determinations—under the award, you can be casual; the 2007 workplace agreement covered your employment; or the insertion of section 15A into the Fair Work Act determines you are a casual? You can take that on notice, too, please.
Ms Booth: It would certainly be a degree of detail that I do not have at my fingertips. Is there anything, Mr Scully, you can say about that?
Mr Scully: I can only advise that from July 2019 to 31 December 2023, we resolved 30 disputes that relate to the coal mining industry. I haven’t got any further details about that. There are 30 over the last 4½ years.
Senator ROBERTS: Thank you, Mr Scully, that’s in coal. This is specifically Chandler Macleod and the black coal mining industry award. You will have to take this on notice too. How many proceeded to the investigation stage? Have any of them not been formally closed? If so, which ones? Thank you, Mr Scully. Thank you, Ms Booth. Thank you, Chair.
https://img.youtube.com/vi/3-XqCQp-264/maxresdefault.jpg7201280Senator Malcolm Robertshttps://www.malcolmrobertsqld.com.au/wp-content/uploads/2020/04/One-Nation-Logo1-300x150.pngSenator Malcolm Roberts2024-03-06 16:22:452024-03-14 17:14:59Casual Wage Theft and the Fair Work Ombudsman
The union bosses claim that Labor’s latest Industrial Relations legislation will “close the loophole” of casual workers being paid less than permanents, especially in the mining sector.
You can’t step on site without a union enterprise bargaining agreement, so how are casual workers getting ripped off when they’re working under union negotiated agreements?
The answer is that some union bosses are getting kickbacks from labour hire companies in exchange for passing through dodgy agreements that allow casuals to be exploited.
The Fair Work Commission is meant to stop this, but they’re either asleep at the wheel or deliberately not doing their job.
Transcript
1 November 2023
Presenter
The Fair Work Legislation Amendment, known as the, “Closing Loopholes Bill,” held its hearings in Rockhampton this week. Announced by the federal government in September, the Closing Loopholes Bill aims to criminalise wage theft, introduce minimum standards for workers in the gig economy, close the forced permanent casual worker loophole, and close the labour hire loophole.
It’s all about that thing that we’ve been talking about for yonks, and that is, if you’re doing the same job as someone else, you should get the same pay. One Nation Senator Malcolm Roberts is in Rockhampton for the hearings, and he’s been raising the issue of the exploitation of the permanent casual workers in CQ miners for years. Frazer Pearce asked him if the proposed legislation would provide a better outcome for miners.
Malcolm Roberts
Look, my position on this Fair Work Act for a start, the current act as it stands, without Labor’s latest draft amendments, is 1,200 pages long, and they’re wanting to add another 800 pages. It already makes the workers vulnerable because there’s no way any single worker or small business can understand it; and it helps the IR club. All regulations in that help the major groups like the major banks, the big pharma, and the Industrial Relations Club.
That’s the lawyers, the Union bosses, the Industry Associations for multinational companies. It hurts the workers. I’ve seen that firsthand in Hunter, the Hunter Valley, and in Central Queensland. The second point I’d make is that we wouldn’t be having this inquiry if it wasn’t for the fact that the cross bench has moved it to extend the opportunity, to extend the reporting date from October through to next February. We would not be here listening to the views of industry unions and individual workers, if it wasn’t for the fact that we got an extension till next February.
The Labor Party voted against that extension. They don’t want to listen to people. We voted in favour of it. It’s a very important bill. It’s a huge bill. Big ramifications for workers as well as all players in the industry. The third point I’d make is that current employment in the coal industry at least, is that illegal employment of casual, supposedly casual, in coal is only possible, only possible, with a mining and energy union endorsed enterprise agreement.
We’ve seen that. I can go into detail if you need, but this is probably not the time. But the Mining Union in the Hunter Valley in particular, and to some extent in Central Queensland, has been passing enterprise agreements that do not protect the basic rights of workers. They don’t meet the award criteria as a basic minimum. They don’t meet the National Employment standards as a basic minimum.
They have been selling out workers in the coal industry and what we need for a solution is just a simple enforcement of the Fair Work Act. Now, early on in the proceedings and dealing with these issues, I proposed the, “Same work, same pay” bill. It’s very simple bill. But what I’ve since realised in doing more work, listening to miners, is that all that’s needed is to enforce the current Fair Work Act.
Frazer Pearce
What’s the level of, do you think of exploitation against these workers? Are you saying it’s widespread or it’s just isolated?
Malcolm Roberts
Yes, it’s widespread and it varies in severity. They’re paying well below the award and as I said, the award is the basic minimum. They have not done , they’ve not done the boot test, which is the, “better off overall test”. And that’s how these dodgy agreements have got through that are shafting coal miners in Central Queensland and the Hunter Valley. They have left out basic leave entitlements.
They don’t pay casual loading. Casuals are not legally allowed to be employed in the coal industry other than in a dodgy agreement, which is unlawful in itself; because they bypass the normal processes. People are missing out on leave entitlement. People are, as a result of being hired casual, short term, are threatened with dismissal at any time, people are afraid to raise safety incidents.
There’s a culture of fear there. There’s a culture of fear at many mines from people standing up and and afraid of standing up. There’s also been a lack of reporting of injuries. New South Wales in particular, we suspect also Queensland. There’s a, basically there’s a loss in some cases of workers insurance, workers’ compensation, accident pay. These are fundamental rights.
Frazer Pearce
Is this going to be a strong platform for you in the next election? Was it a vote winner for you in the last one?
Malcolm Roberts
We don’t do things to get votes. We do things because they’re right.
Presenter
That’s One Nation Senator, Malcolm Roberts having a chat with ABC Capricornia Frazer Pearce, talking about the closing loopholes bill. The hearing’s being held in Rockhampton at the moment. It’s a couple of minutes to eight.
The one thing we here again and again from small businesses is that Industrial Relations in this country is simply too confusing. You just about have to be a specialised lawyer to simply employ someone and be across all of the applicable legislation. The awards and language need to be made much simpler if small business has a hope of surviving. A fair day’s wage for a fair day’s work, and a way to punish dodgy employers who dishonestly try to break the rules: that should be the simple basics of industrial relations but we’ve complicated it far too much
Transcript
Senator Roberts.
[Roberts] Thank you Chair.
Thank you again for being here today. My questions cover a broad range. In the Fair Work Commission statement, dated 9th of April, 2021, regarding the Casual Terms Award reviewed 2021. This review must be completed by 27th of September, 2021. Are you on target for this date? And what has been identified as going over that date so far?
[Luby] Uh…
[Furlong] Ms. Luby
Thanks Mr. Furlong, I’ll take this one as well. Thanks Senator. Yes, the Fair Work Commission is definitely on target for that. That’s a date that was set in the statute and where we’re working towards that. So the Commission has issued a number of information papers outlining the range of casual terms that are found in Modern Awards. A full bench has been listed for hearing to consider a small group of Awards that cover either a large range of employees or have sort of quirky casual terms. And so that’ll be some, I guess some principles or precedent will be set by that full bench and then that will be applied to the remaining Modern Awards. So we’re working through that.
[Roberts] Okay.
With respect.
[Roberts] Thank you. Now from the Casual Terms Award Review 2021, at 12 and 13 of the Fair Work Commission Statement, I note that the Black Coal Mining Industry Award, MA000001, has not been included in the initial review. Yet, the background of that is that there’s a lot of confusion and uncertainty, in the black coal mining industry, because there was no provision in the award for casuals on production. But nonetheless, the Hunter Valley CFMEU did a deal to get that into the Enterprise Agreements. So that meant because there was no award provision, there was no, basically anybody under that EA was locked into permanent casual rort and they couldn’t get out. Now with the legislation that the government introduced in March, there is a pathway to permanent work for all casuals, but I think it needs to be clarified as quickly as possible. Many everyday Australians think it should have priority, the Black Coal Mining Award should have priority for definition of a casual mine production worker, given the harm it’s done to so many casual black coal miners, the lack of that definition. Can you ensure that this Award is reviewed promptly, please?
Senator, well, obviously it’s not for me to determine what order that the Awards are looked at. That’s a matter for the President and full bench presiding over that. I’d just like to clarify that the purpose of these proceedings are to determine whether the casual terms in the Awards are compliant or not contradictory with the terms that were introduced in the Supporting Employment Bill. It doesn’t go to whether there are entitlements to casual work in a particular Award. The issue of whether there should be the possibility of casual engagement under the Black Coal Award, was considered as part of the Four Yearly Review. And I think Mr. Furlong spoke into that previous estimates and it’s been covered in some of our Questions on Notice. That’s perhaps a different issue that could be raised at, and it could be raised at any time, if the parties were to seek to include a casual term for those production employees under the Black Coal Award.
[Roberts] Okay, so there’s nothing to stop a casual worker, who’s on permanent casual rort at the moment, thanks to Enterprise Agreements, from actually casual conversion, if they’re offered that conversion now?
No, I’m sorry Senator. There is no provision for casual employment for a production employee under the Black Coal Award.
So if I might. My understanding of the legislation it covers, because it’s been placed into National Employment Standards, it applies broader than all the Awards. So if someone is a casual, whether there’s an Award term for casuals or not, then the provisions within the Act will apply. So yes, there is a pathway to conversion because it’s been put into the National Employment Standards.
[Roberts] Okay, so thank you. So it overall
[Luby] Thank you, Mr. Hehir. Sorry.
[Roberts] It overrides the Award. So, people
[Luby] I apologise I apologise Senator for not getting that.
[Roberts] Yeah. So just to be clear Mr. Hehir, the people who are working as casuals, when the changes were made in March, will now have access to conversion once they’re offered?
So that’s my understanding because it’s been placed into the National Employment Standards. It expands beyond the award system and does apply more broadly.
[Roberts] Thank you. Because there are a lot of people cursing Enterprise Agreements that basically locked them into permanent casuals. How long after this review
[O’Neill] If I could get your attention Mr. Roberts. We asked a couple questions yesterday about these matters with the conversion. Under 15 employees, there will be a different
[Hehir] Thank you Senator
[O’Neill] situation.
[Hehir] O’Neill.
[O’Neill] But I guess one of the things that we got yesterday that’s important was it’s a test of reasonableness about whether those coal miners will actually be able to
[Roberts] Oh that test is
[O’Neill] Get
[Roberts] Yeah.
[O’Neill] the reasonableness
[Hehir] I think
[O’Neill] Test. Yep, yep.
[Hehir] reasonableness is the goal Senator O’Neill.
Yep.
[Hehir] Well I’m sure…
[O’Neill] Well it’s it’s gonna matter
[Hehir] Council, Senator Roberts.
[Roberts] In the Fair Work Commission Statement, dated 9th of April, 2021 regarding the Casual Terms Award Review 2021 at 12, I note the hesitancy regarding the definition of simple terms. Can you advise if your concerns over language will hold up the review process or have they been resolved?
No Senator. I think that we’re still on track to meet that deadline of the 27th of September.
[Roberts] Thank you. So we’ve been advocating for a fair go for Australian workers for a while now. Since the last Senate estimates round, can you tell me what due diligence has been put in place for Fair Work Commissioners to use to ensure that the boot analysis improves and that we do not see any more failures like the Chandler MacLeod Northern District of New South Wales Black Coal Mining Agreement of 2015? My understanding is that there was no Enterprise Agreement. The Chandler MacLeod initially employed miners under the Award, where there was no provision for casuals. Then they came up with the Enterprise Agreement and that breached the boot test from what we can work out. So we need to make sure that miners are protected in future with Enterprise Agreements that comply with the boot test. Can you tell me what’s being done like that to make sure there’s no more failures?
Just a couple of things on this, Senator. It’s actually been on notice and to a reasonable sort of extent, in relation to the decision about the Chandler MacLeod Agreement, it was approved by Senior Deputy President Harrison. And while the decision was short, she did go to the boot, the analysis of the boot. Ms. Luby can provide further and better detail on it. But every agreement application that is made to the Commission undergoes a very comprehensive, administrative checklist and was performed by specially skilled staff to ensure that the statutory requirements and pre-lodgement provisions are satisfied. And in terms of Ms. Luby saying that 95% of those applications are made and provided to members within five days, that is the process that is undertaking that first step.
[Roberts]Okay, I’m having a lot of trouble hearing you or understanding. Could you just explain, perhaps you could explain. I understand that you’ve given us a reassurance that the process is going to be followed. Could you please explain the boot analysis process? What are the main steps that the commission now undertakes and is it applied appropriately to each case?
The answer to that question is easy, yes. There’s a legislative checklist that is completed by as I said specially trained staff at the Commission. The template of that checklist is available on our website as well. If you’d like to have a look at it, we can certainly table it for you to have a look at. Bit it is a consistent checklist that is performed for every Enterprise Agreement application that is made.
[Roberts] Okay, thank you. I heard it clearly that time, so we’ll check that checklist ourself. We’ve heard that some union bosses are saying that it is the worker’s responsibility not the unions for what is put to the Commission in relation to Enterprise Agreements. Can you tell me then how you ensure that the workers themselves are happy with the Agreement? And what checks do you have to make sure that you’re satisfied that it’s the workers that are happy with the Enterprise Agreement?
Ms. Luby might want to add to this. Effectively there’s an access period, a statutory access period, Senator. That all, every employee who’s to be covered by that Enterprise Agreement has got access to that Agreement and that the employer has gone to reasonable lengths to explain the terms of the impact of that Enterprise Agreement. Ms. Luby would you like to add anything to that?
Sure, Mr. Furlong. So I guess there’s a few strands to it that the member who assesses the application will look at whether the terms and the effect of the terms of the Agreement were effectively explained to the employees. That’s an important test that’s been the subject of a number of federal court decisions and quite clearly laid out, in terms of the level of detail that must be explained to the employees to give them an opportunity to vote in an informed way. And then clearly there is the vote itself, so that there must be a majority of employees who vote for the agreement, who vote in favour of it. So they’re the primary tests.
[Roberts] Thank you.
We’re also quite transparent about the fact that an application has been made. So an employee will have an opportunity to make a submission to the Commission if they choose to do so.
[Roberts] So what recourse do workers have through the Commission or anywhere else, where a union boss fails to do what they promise to bargain for or where they might ignore workers’ needs in favour of their own interests? How do we make sure union bosses’ held accountable in this process for approving an EA, Enterprise Agreement?
I think Senator, the Commission, as I said, we are quite transparent in terms of when an application is lodged. It’s always published on our website immediately. So it’s available for the employees to see before the application is approved. And during that time it’s not uncommon for an employee to contact the Commission and their email or letter that they put in will be sent directly to the member who’s dealing with the application. So if they’ve raised any concerns that will be brought to the member’s attention.
[Roberts] So what you’re saying is, it seems reasonable to me. What you’re saying is that if an employee has concerns about the employer, or the union bosses, that they need to go and check themselves and take responsibility for the Enterprise Agreement themselves before they vote.
Um..
[Roberts] Vote, inform themselves
[Luby] I guess
[Roberts] So they vote in an informed way.
Yes, definitely and it’s the employer’s responsibility to inform them of the effect of the Agreement.
[Roberts] Thank you.
[Luby] So that’s an quite a proactive step that the employer needs to take.
[Roberts] Okay. Have they been
[Furlong] Senator may I also, sorry. I may also be of assistance. If an Agreement is reached, or past its normal expiry date, a party of the employees covered by that Enterprise Agreement, that is past its normal expiry date, can make an application for that Agreement to be terminated.
[Roberts] Okay, so it gets fairly complicated, doesn’t it, quickly? Have there been any cases regarding casual conversion put to the Commission for determination since the changes to the Fair Work Act earlier this year? And if so, how many And what have been the issues and the results?
Senator, I can take that one. There’s been one application so far, under the new section 66M, that application was an employee in the social and community services sector. It was only recently received and it’s been allocated to a member for hearing.
[Roberts] Okay, so one application for an appeal to conversion. Correct?
Yes.
[Roberts] Thank you.
That’s correct.
[Roberts] Now moving onto another topic. Have wage theft cases increased or decreased in the last 12 months?
That’s a matter for the Fair Work Ombudsman. I understand that they’re giving evidence later this evening.
[Roberts] Yes, we’ve got some questions for them. Thank you. Small business owners frequently find that the cost of being away from work to defend a sometimes spurious, unfair dismissal case or other complaint is too much and they end up paying “go away” money, which everyone knows about, to the employee. What is the Fair Work Commission doing, or what could you do, to help small businesses and small business employees, especially given that they’ve done the heavy lifting during the COVID restrictions and downturn? And many are finding it hard now, both employees and small businesses.
I’m not too sure. I understand that the notes of the term “go away” money, Senator. I can’t say that I necessarily agree with it. There are, we receive approximately 15,000 unfair dismissal applications every year. About 80% of those applications are resolved through agreement, through reconciliation process.
[Roberts] What percentage, sir? I’m sorry.
About 80%.
[Roberts] Thank you.
For those that and the vast majority of them are conducted online, so on the telephone, at a time that hopefully suits both of the parties through that process. And there is no obligation, for the parties, the small business that you’re talking about employers to the employees, and to the applicants to settle but if they arrive at a settlement through that process, then the matter is finalised. They can obviously decide not to settle at that point and have the matter dealt with by a member through arbitration.
[Roberts] Okay.
Ms. Carruthers, anything else you’d like to add to that?
Thank you, Mr. Furlong. Senator I might just add as a useful bit of context, that in about 2/3 of cases where money is paid, it’s for less than $6,000. So they are modest amounts of money that are paid when payments are made. And payments are made in around 80% of matters that are settled.
[Roberts] Yeah, my point is that the Fair Work Act, when it’s printed out is about that thick, laid on its side, it’s that thick. It is so damn complex that employees and employers, don’t know what, small business employers and employees, don’t know where they stand. Many employees right across industry, all sizes of companies, don’t know where they stand and that’s not good enough. So with that, there comes, it’s much easier for one to rort the other, employer to rort the employee, and also for people to avoid accountability. So the complexity of the Fair Work Act is really hindering employment and hindering the employer-employee relationship, which is the fundamental relationship on a workplace. So that’s why I’m asking that question because we know talking to small businesses, listening to them, that they are not hiring people at times because of the complexity and their fear of what will happen. And we’ve got to remove that.
Senator there is a part of your question that we didn’t get to is about what we can do or what we are doing. There are a couple of very large projects that are underway at the moment to improve the services of the Commission. One of them, and it’s a very large project, is the redevelopment of our website. And at the moment, the language used on our website is, it’s technical. One of the major change, one of the major improvements, is there’s going to be, the new website is going to be written in very accessible, plain language. We’re aiming for someone with a year level literacy of eight to 10. We’ve also just kicked off a forms redevelopment project that applies or that will be applying data and behavioural insights, so behavioural economic insights. To ensure that the regulatory burden associated with making these applications and that people are informed, as best as they possibly can be, are a part of the process. So we are looking at ways that we can improve our service delivery and we’re acting on them at the moment.
[Roberts] Well, thank you. That’s encouraging. Fundamentally though, the Fair Work Act is highly complex and it doesn’t matter how we dress it up in practical language, it’s still going to be complex. That makes it difficult for both employees and employers to know what they’re accountable for and what their entitlements are. I appreciate you raising that. Thank you. Last questions on just another topic here. Can you please undertake to inform on the status of the Award Modernisation process that you’re undertaking?
You’re referring to the Four Yearly Review of Modern Award are you Senator?
[Roberts] Yes.
Okay. Do you have any questions in particular about the review? It’s a very, very large piece of work.
[Roberts] Is it progressing on schedule?
It is. It’s very close to being finalised. There are a number of common issues and Ms. Luby can talk to that for today’s, but one of the major initiatives that’s still being progressed is the plain language writing or rewriting of a number of Awards that’ve got high, high world reliance. So those Awards that have got a lot of employees covered by them or relying on them to set out their terms and conditions.
[Roberts] So…
Ms. Luby, do you have anything else to add to that?
Certainly. Thanks, Mr. Furlong. Thanks Senator. So the Four Yearly Review has, as you know been going on for a number of years. In terms of the Award specific reviews, there’s only seven Awards that are outstanding of the 122 that we started with. There are five of those Awards that are undergoing what we’re referring to as a plain language review, which goes to the point you were just making, and Mr. Furlong was making, about trying to make the terminology less complex. The others are the Nurse’s Award which is probably, it’s very close to completion. We’re hoping it will be completed by the end of July. A final draught has been published of that Award. And it’s just out for comment to ensure that there are no technical or drafting issues that have been incorporated in it. And the final other Award is the Black Coal Mining Award, where there’s one issue in relation to the interaction between shift work and weekend work penalties and the casual loading for staff employees. There was a conference about that yesterday but I understand the parties couldn’t come to an agreed position, so there’s a further conference scheduled in a couple of weeks.
[Roberts] Okay
So they’re the Award specific issues and then there are a number of common issues across the Awards that have progressed. But again, there’s only a small number of those that are left of the vast number of reviews that were undertaken over the last six years.
[Roberts] So while I see it as tinkering, it is a good step for having modernisation and simplification of the language in particular. So everyone knows where they stand.
https://img.youtube.com/vi/3XfTHqGBUEY/0.jpg360480Senator Malcolm Robertshttps://www.malcolmrobertsqld.com.au/wp-content/uploads/2020/04/One-Nation-Logo1-300x150.pngSenator Malcolm Roberts2021-06-03 09:31:192021-06-03 09:31:29Fair Work Commission – Award Modernisation & Small Business
