During this session with the Fair Work Commission, I asked Mr Furlong if he agreed that you cannot use an enterprise agreement to strip away rights provided by the Fair Work Act and the National Employment Standards. He agreed.
During our exchange, I highlighted several concerns:
I reminded Mr. Furlong that the High Court in Rossato was clear — contract terms must be given effect unless they are contrary to statute. You can’t take away annual leave or award entitlements if the law says otherwise.
When I asked how losing annual leave and getting lower pay could possibly make a worker “better off,” the Commission hid behind “abstract” assessments. There is nothing abstract about a coal miner losing their leave and being underpaid compared to the Black Coal Award.
The Commission tried to tell me we’ve “traversed” this ground before. My response was simple: I will keep traversing it until these workers get what’s owed to them in full compliance with the law.
— Senate Estimates | February 2026
Transcript
Senator ROBERTS: Mr Furlong, you have previously agreed that an enterprise agreement cannot remove all applicable award entitlements. You have agreed that an enterprise agreement cannot remove entitlements provided under the Fair Work Act and the National Employment Standards. Both of them were in November 2022. Do you still hold the same views today?
Mr Furlong: I do.
Senator ROBERTS: Isn’t it true that these propositions were confirmed by the majority of the High Court in the Rossato decision?
Mr Furlong: I can’t talk to the High Court decision, Senator.
Senator ROBERTS: The court went on to say: …where there are express terms of the contract between the parties, they must be given effect unless they are contrary to statute. Are you aware of that?
Mr Furlong: It has been a long time since I’ve looked at that decision. I can’t comment on it.
Senator ROBERTS: I know what you mean. If an agreement includes terms that would remove statutory rights such as annual leave and other award entitlements, wouldn’t those terms be considered contrary to statute?
Mr Furlong: It’s difficult to talk in the abstract about such matters. The terms and conditions in an enterprise agreement are that they need to be better off overall. It’s a global assessment in determining whether or not an enterprise agreement will satisfy a member of the commission and subsequently be approved by that member.
Senator ROBERTS: Thank you. This issue was further considered in One Key Workforce v CFMEU. The full bench of the Federal Court held that: It is an error of law to fail to have regard to relevant material in a way that affects the exercise of power. An administrative decision-maker— the Fair Work Commissioner— who makes such an error exceeds his or her authority and acts without jurisdiction. Isn’t this exactly what the commissioner did when approving an enterprise agreement that ignored the Black Coal Award, which was relevant material?
Mr Furlong: I think that the circumstance of One Key relate to the One Key enterprise agreement. Are we are talking about Chandler Macleod and other agreements about casual coalminers? Senator ROBERTS: If an enterprise agreement takes away annual leave by calling someone a casual, is that going against statute? Mr Furlong: It depends on whether the employee is a casual or a permanent employee. If they are a permanent employee, they would be entitled to annual leave and sick leave and all the other conditions that would be applicable to a permanent employee. There are casual conversion entitlements now for employees that they can exercise if they want to transition from casual employment to an ongoing role. Senator ROBERTS: How does it comply with the National Employment Standards and the Fair Work Act if someone loses annual leave, ends up on lower pay and doesn’t meet award provisions? It goes against statute.
Mr Furlong: The Fair Work Act provides the framework that members of the commission have to observe before they can approve an enterprise agreement. If there is an aggrieved party to a decision made by a member of the commission, those decisions can be the subject of an appeal. If the agreement has reached its nominal expiry date, then a party to that agreement can make an application to have that agreement terminated.
Senator ROBERTS: So the express terms of the contract or EA must be given effect unless they are contrary to this statute?
Mr Furlong: No. What I’m saying is that for a member, in assessing whether or not to approve an enterprise agreement which has been lodged with the commission for approval, a number of statutory tests need to be satisfied. One of them is the better off overall test. Once a member of the commission who has been allocated that file is satisfied that each of those conditions has been met, they are required to approve the agreement.
Senator ROBERTS: Can you tell me how the loss of annual leave, a pay rate that is less and the loss of other award provisions complies with better off overall, because the award prevails? That’s the High Court.
Mr Coyle: It’s very difficult to talk in the abstract here. It’s a case-by-case basis.
Senator ROBERTS: The loss of annual leave, a lower pay rate and the loss of other award provisions—that’s not abstract.
Mr Furlong: We’ve traversed this several times.
Senator ROBERTS: I will keep traversing it until we get these people their fair due in compliance with statute.
During 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.
Six years ago, I exposed a $1.3 billion wage theft scandal involving BHP, multinational labour hire firms, union bosses, and the Fair Work Commission. Casual coalminers were underpaid, stripped of entitlements, and betrayed by those meant to protect them.
Despite ridicule, I persisted. Now, the truth is accepted—but the workers still haven’t been fully compensated. Labor ignored One Nation’s equal pay bill, that would enable the back payment of stolen wages, then copied some of it under pressure. Labor’s Bill did not seek the reimbursement of the stolen wages which had been enabled by the unions in cahoots with dishonest employers.
Labor continue to protect union donors and multinational corporations to the detriment of honest workers.
One Nation stands alone in fighting for justice, recovery of the stolen wages, and accountability. We won’t stop until every coalminer is paid what they’re owed.
Transcript
It’s ironic that six years after me first raising in the Senate the issue that BHP and other multinational mining companies, together with labour hire companies, colluding with the coalmining union bosses and the Fair Work Commission, perpetrated Australia’s largest case of wage theft. An estimated $1.3 billion was ripped off workers.
I first raised this in July 2019, together with clear breaches in statutory provisions for workers compensation, leave, long service leave and other provisions. I was met with ridicule. Slowly, with my persistence and solid data as evidence, my claims were increasingly accepted and now are accepted. Yet here we have before us yet another Fair Work Act bill, yet another change to the Fair Work Act. While we support this bill, I raise concerns with the Fair Work Act itself yet again.
Getting back to BHP and the CFMEU colluding with the labour hire companies, stealing wages and conditions from workers that the government is finally recognising is wrong, I am wearing down my opponents in parliament and the bureaucracy, in one of Australia’s largest and most powerful unions, in one of Australia’s most powerful industries, in some of the world’s largest mining companies and in the world’s largest labour hire firm, Japan’s Recruit Holdings. Who would have thought that the Labor Party, formerly touting itself as the party of the worker, could actively cover up theft from workers? Who could have thought it? What about Labor colluding with major multinational mining corporations, major multinational and Australian labour hire firms and major union bosses to hammer, abuse and steal from Australian workers? These are workers who keep the lights on and who earn export income for what oscillates between Australia’s largest and second-largest export income earner, the coal industry. Labour hire companies, particularly in coal mining, have been consistently underpaying miners to rip off and abuse casual workers who are really working regular full-time hours with the full knowledge and agreement of the CFMEU and MEU bosses and employers. They are stripped of award protections, conditions and entitlements.
I introduced the first equal work, equal pay bill. Labor did not vote for it. They did not support it, saying they would introduce their own. Eventually—a long wait—we shamed Labor into doing their equal work, equal pay bill. They followed One Nation. Equal work for equal pay should be a norm, yet what about the millions—an estimated $1.3 billion—owed in back pay to those who are ripped off? What about them? Some workers were shortchanged more than $40,000 each per year. One complaint lodged with the Fair Work Ombudsman recently as a result of my work revealed a worker is owed $211,000 for years of back pay. It’s wage theft. These workers deserve to be compensated for their years of being underpaid. It’s a rort that goes back to 2014 and has its roots in the Rudd-Gillard Labor fiasco, with former minister Shorten in 2010 overseeing changes in coal-mining long-service leave provisions, making it possible to hide the other breaches of industrial law in the coal sector. They were hidden until I applied the spotlight relentlessly for 6½ years. When will this Labor government go all the way to compensate those workers, whose losses the union bosses should have stopped, not enabled? When will this Labor government go all the way to compensate those whose losses the Fair Work Commission should have stopped, not approved?
Two entities, the CFMEU/MEU bosses and the Fair Work Commission, who should have protected Australian workers, in fact enabled Australia’s largest wage theft from honest workers and then vigorously denied it, thereby helping to cover it up. They were hiding the rip-off of workers to make large multinational labour hire firms in the world’s largest mining company unlawful profits that are exported overseas. The profits are exported. How? Those coalminers had worked under an award that did not allow casuals to work in the black-coal industry. The CFMEU then negotiated an enterprise agreement that included casuals who were grossly underpaid. Their employers and the Fair Work Commission went along with this, even though the better off overall test was not satisfied. This legal requirement was boldly sidelined and breached. The union entered into a secret agreement with the employer to not represent the workers seeking a remedy with the employer. The union signed away its rights to protect workers. It was part of the shabby agreement.
As a former underground-coalface miner and union member and as a former coalmine manager and coal-mining executive, I was absolutely stunned and disgusted at the bold exploitation of Australian workers. I was determined. I remain determined, and now I’m encouraged. Yet, after six years, those coalminers still have not received their fair compensation. One Nation will continue to be the only party that pushes for repayment to those coalminers of their stolen wages.
When I first met with workers in the Hunter, way back in 2019, I drafted three aims for guiding our work that I anticipated would push us against roadblocks from the perpetrators of Australia’s largest wage theft. I will state these aims again: to recover the lawful and moral entitlements of casual coalminers; to stop these abuses across the coal industry; and to expose and punish the guilty. These three aims continue to guide us. Why does this Labor government continue on a path that ignores those ripped-off coalminers? Who are they protecting? Labor is protecting union bosses and what is one of the largest donors to Labor election campaign funds—the CFMEU, now the MEU. Labor is protecting the world’s largest foreign multinational labour hire corporations supplying casual workers to government contracts, costing Australian taxpayers billions of dollars. This is big money. Labor is protecting the world’s largest multinational mining corporations, lacking the integrity and nous to negotiate legal agreements with workers. Labor is protecting its Fair Work Commission.
Despite these huge and powerful forces, One Nation is making progress in giving casual miners tangible hope and the real possibility of compensation. The Fair Work Act is not fit for purpose. Industrial relations needs to return to protecting workers and employers, particularly small business. But it must protect workers. Workers are no longer protected in this country under Labor. One Nation is the only party now protecting workers.
The Fair Work Ombudsman (FWO) has received a Ministerial directive to investigate wage theft allegations affecting coal miners in the Hunter region. Upon inquiring about the investigation’s status, Mr Steve Ronson, the Executive Director of the FWO shared that there are currently 18 cases under investigation, involving 25 workers and 17 employers, with 2 self-reports also being considered. All complaints are being thoroughly investigated, and the process includes holding meetings with various stakeholders.
A dedicated email address has been established for individuals to contact the FWO regarding these issues. So far, meetings have been held with Coal LSL, the Mining Energy Union, and the Independent Workers Union of Australia. Mr Ronson mentioned that the amounts to be calculated have not yet been assessed, with some claims dating back around 10 years. It’s been estimated that the total claim could potentially reach up to $1.3 billion. He also expressed his willingness to accept a submission from One Nation, which has been advocating for this investigation since 2019, marking it as the largest wage theft claim in Australia.
Interestingly, there has been no liaison with the Fair Work Commission, although other entities are welcome to submit material. Early findings from the investigation may emerge by mid this year, but the final report is expected by mid-2026. Status reports might be discussed through the estimates process. Mr Ronson clarified that while underpayments can be investigated beyond the 6-year period under the Statute of Limitations, enforcement is limited to this timeframe. He committed to securing any identified underpayments through the investigation.
Stay tuned for more updates as this significant investigation progresses.
Transcript
Senator ROBERTS:Thank you for attending, everyone. First of all, I understand the Fair Work Ombudsman has received a ministerial directive to investigate underpayments of casual black coal miners working under enterprise agreements; is that correct?
Ms Booth: We have been asked to conduct that investigation. On the last occasion, you’ll recall, Mr Ronson gave you a thorough rundown. Since that time our enforcement board has approved an investigation plan. I will turn to Mr Campbell to give you any further updates.
Senator ROBERTS:Before he does so, would it be possible to get a copy of the ministerial directive, please?
Ms Booth: I’m not sure I would describe it as a ministerial directive, although others might be more aware of the protocol in these matters. I believe it was a letter.
Senator ROBERTS: Can I have a copy?
Ms Booth: I see no reason why you shouldn’t. I’ll hand over to Mr Campbell and Mr Ronson to give you more details.
Mr Campbell: Is there a particular aspect of our inquiries that you’re interested in, or are you looking for a general update?
Senator ROBERTS: I’d specifically like, please, an overview of the status of the Fair Work Ombudsman’s activities, and could you in particular describe the process the Fair Work Ombudsman is using to conduct its investigations.
Mr Campbell: I’ll ask Mr Ronson to assist.
Mr Ronson: I can give you an update on the status of the investigation. The Fair Work Ombudsman is currently investigating 18 black coal mining industry matters that involve 25 workers and 17 different employing entities. We’ve also received two self-reports from the sector. All the requests for assistance that we’ve received are being investigated, and as part of our project plan we’re meeting with a whole range of stakeholders. We’ve begun meeting with them to talk about the investigation, to enhance and increase awareness and to encourage those in the sector to come forward. We have a dedicated email address to receive any allegations or information from any member of the sector or the community. So far, we’ve had some very constructive and positive meetings. We’ve had two meetings with the Coal Mining Industry (Long Service Leave Funding) Corporation, we’ve met with the Mining and Energy Union, we’ve met with the Independent Workers Union of Australia, and we’ve got a whole range of other stakeholder meetings lined up in the next couple of weeks.
Senator ROBERTS: Thank you. I assume that there’s a dedicated process that casual coalminers can now use to lodge complaints about underpayment with the Fair Work Ombudsman?
Mr Ronson: That’s correct. There’s a dedicated email address we’ve set up for the whole project so that anyone in the sector or anyone with information relating to the sector can feel confident that they can go straight through to contacting us through that email, or they can give us a call—whichever way they want to make contact with us. Of course, there’s still the anonymous report function as well, which is available to all members of the community.
Senator ROBERTS: You mentioned the Independent Workers Union of Australia. I take it that some of the submissions, or complaints, have been lodged through that and some of the others have been individually lodged, for individual work.
Mr Ronson: That’s right. Probably two-thirds have come through the agency of the Independent Workers Union of Australia and the other third are just individual workers in the sector who have requests for assistance that we’re looking at.
Senator ROBERTS: Thank you. I must say that I appreciate your succinct and direct answers. Can the Fair Work Ombudsman provide the range of possible underpayment amounts currently being looked at by the Fair Work Ombudsman?
Mr Ronson: It’s hard to assess at the moment what potential underpayments, if any, exist. Some of the allegations date back at least 10 or 11 years. There are some individuals who’ve worked in the sector for many years. If the allegations are upheld and if the evidence is obtained, there could be significant underpayments owing to certain workers. But at this stage it’s too early. We’ve requested a series of documents, a lot of information from various companies, that will assist us to begin, if you like, the assessment of these particular claims.
Senator ROBERTS: How many employers—not only mine owners but the labour hire firms—are subject to investigation so far? How many?
Mr Ronson: All up, it’s 17.
Senator ROBERTS: You mentioned that—okay. Will the Fair Work Ombudsman advertise to coalminers in the black coal mining sector, encouraging them to lodge and apply to the Fair Work Ombudsman in relation to underpayments they believe they may have been subject to?
Mr Ronson: By ‘advertise’, do you mean increasing awareness, as in media statements?
Senator ROBERTS: Yes: letting them know you’re open for business and you’re aware that this is an issue.
Mr Ronson: Yes, that’s definitely an option available and one we’re considering. There are some other ideas that we have as well about enhancing awareness. For example, there’s nothing to prevent us writing to all labour hire providers and employing entities in the sector. This is one of the suggestions that has been put to us and one we’re currently considering.
Senator ROBERTS: Would that be a wise move in terms of trying to get to the miners? Some of these labour hire firms—some—have been deliberately suppressing this?
Mr Ronson: That’s right—good point. In terms of former workers, that’s a different sort of ‘audience’, if you like. That’s one we’re turning our minds to in thinking about how we ensure people who either are in the industry now or were formerly in the industry are aware of this investigation. The second point I was making, yes, was in relation to employers. That’s something we’ve done in the past. We’ve written, for example, to the ASX Top 100 companies and encouraged them to review their status, and if they self-identify they can self-report any potential noncompliance.
Senator ROBERTS: My understanding is that some of the miners are not aware of it, but it’s a major issue, because we estimate that about 5,000 miners at least have been the subject of Australia’s largest wage theft case, and it’ll cost, ultimately, around $1.3 billion—they’re rough estimates. So I think these people need to be told that there’s an option for them to seek justice and repayment.
Mr Ronson: Yes. As I say, it’s something we’re definitely turning our minds to, and we’re considering what’s the best way to get the word out, if you like.
Senator ROBERTS: Okay. Let’s hope you can get that out fairly soon. The Fair Work Ombudsman would be aware that One Nation has pushed for investigation into this issue and that One Nation released a detailed report in February 2024. Is the Fair Work Ombudsman taking submissions on how the alleged underpayments have occurred, and would the Fair Work Ombudsman accept One Nation’s report as a submission? We can provide data, companies involved, amounts, enterprise agreements and underpayment.
Mr Ronson: Yes, sure. We welcome all and any information and any submissions.
Senator ROBERTS: So we would make submissions in the same way anyone else would?
Mr Ronson: Yes.
Senator ROBERTS: Thank you. Would One Nation be involved in any follow-up discussions on the nature of the issue and its resolution?
Mr Ronson: Yes, if there is information that’s material and actionable, by all means, we’ll be in contact.
Senator ROBERTS: As I understand it, the Mining and Energy Union, which is what’s left in the coalmining sector after the CFMEU and the Mining and Energy Union split, are not seeking back pay. They seem to be hiding it because they were involved in agreeing to the enterprise agreements and signing off on enterprise agreements that were paying much less than the award. Is the Fair Work Ombudsman inviting submissions from other organisations and individuals? If so, who specifically has been approached?
Mr Ronson: To date, as I said before, we’ve met with the Coal Mining Industry (Long Service Leave Funding) Corporation, and we’re asking that agency to provide us with any relevant information. We’ve met with the Mining and Energy Union; we’ve extended the same invitation. We’ve met with the Independent Workers Union of Australia. As you know, they’re actively involved, and they’re assisting our investigation. We also intend to meet with the Queensland Labour Hire Licensing Compliance Unit; RCSA, the Recruitment, Consulting and Staffing Association, which is responsible for labour hire; the Minerals Council of Australia, with which we have meetings lined up; and safe work bodies in New South Wales and Queensland.
Senator ROBERTS: Will you be covering more than the wage theft case and the specific amounts of the wage theft? In other words, will you be covering loss of other entitlements, protections and safeguards?
Mr Ronson: Our jurisdiction only extends to entitlements or conditions that are actionable or have been created under the Fair Work Act and the regulations, so it’s only what is within our remit.
Senator ROBERTS: Thank you. Is the Fair Work Ombudsman consulting with the Fair Work Commission on the issue?
Mr Ronson: Not to date. There’s been no need at this stage. I’m confident that we said at our last hearing that we don’t have the power or the capability to question any approvals of any agreements that have been made in the past. Others can take that issue up.
Senator ROBERTS: Okay. So only the Mining and Energy Union; its predecessor, the CFMEU; and employers, such as mining companies?
Mr Ronson: I’ll defer to the chief counsel as to who in particular can question agreements.
Ms Volzke: I think Mr Ronson has given a reasonable list. I would just say more broadly that one of the issues that I raised at the last estimates is just to remember that we still have that statutory timeframe of six years that applies under the Fair Work Act as well. Obviously, that won’t preclude us from investigating, but it’s important that the miners that we’re looking at also bear that in mind.
Senator ROBERTS: Yes, I’m pleased to say that it wouldn’t preclude you investigating. It may, at the moment, preclude addressing the issues that are raised in the investigation, but it would not preclude the investigation. The premise for my next question is as follows: the black coal award does not allow for casuals. Enterprise agreements were made, and some are still current, but the agreement’s pay rates are demonstrably less than what should be paid under the award if the award allowed for casuals. To an ordinary person, paying casuals less than the award casualised rate—that’s a full-time rate plus 25 per cent—is plainly wrong. That’s the pub test, as people say. And yet the Fair Work Commission endorsed the enterprise agreements. I assume the Fair Work Ombudsman must somehow determine which instrument prevails, being either enterprise agreements that pay less than the casualised award rate or an award rate that incorporates a casualised 25 per cent add-on to a full-time rate. Does the Fair Work Ombudsman have an idea as to how this may be resolved?
Mr Ronson: That’s the $64 question, if I can confirm it. I think, as with previous evidence we’ve provided, there remains uncertainty regarding the legal consequences of the Black Coal Mining Award’s lack of provision for employees in these roles as it hasn’t been authoritatively determined by a court. So it remains an open question.
Senator ROBERTS: Will the Fair Work Ombudsman be issuing a report or reports on its findings of the investigation? If so, what would be the anticipated timeline for such reports? I think the minister made some comment as to [inaudible].
Mr Ronson: At this stage we’re more than happy to provide status updates in this forum as we go along, but we’re hoping that we’d have early preliminary findings towards the middle of this year or just after the middle of this year. I think I said last time, and I think it’s still the case, it could be at least until mid-2026 before we’re in a position to provide a final report. But we will keep this committee posted.
Senator ROBERTS: Would you be in a position to provide interim reports as the investigation progresses?
Mr Ronson: It’s probably easier if we provide status reports, like I have today. The thing about how long an investigation takes is it all depends—
Senator ROBERTS: It depends on the [inaudible] and what you find. I get it. Would any reports you provide be public and unredacted, except of course for retaining confidentiality of workers allegedly underpaid?
Mr Ronson: I see no reason why it wouldn’t be. A report that we provide would be as fulsome and comprehensive as we could publish.
Senator ROBERTS: We’re not expecting names of individuals to be disclosed.
Mr Ronson: No.
Senator ROBERTS: We would expect them to be redacted. Would the reports indicate the employers involved, the organisations involved, the employers and organisations under investigation and any findings that the Fair Work Ombudsman has in relation to the specific employers?
CHAIR: Just before you answer that question, Senator Roberts we’re running an hour and a bit late. I don’t want to cut off your questions, but if there are some that can be on notice that would be helpful. Otherwise, I will come back to you.
Senator ROBERTS: Thank you, Chair. The way Mr Ronson is answering the questions directly, it won’t be long at all. I’ve only got a few more to go. And I have to move on too.
CHAIR: No worries.
Senator ROBERTS: Mr Ronson?
Mr Ronson: The best way of answering your question is: it’s the long held practice of the Fair Work Ombudsman to provide reports of all its major investigations. We’ve published all of them and they’re available on our website. It is our practice and it would be our expectation to do so again.
Senator ROBERTS: Thank you. If the Fair Work Ombudsman were to conclude that underpayments had occurred, and based on the Fair Work Ombudsman’s past experiences, does the Fair Work Ombudsman have ideas of scenarios for compensation for any worker underpayments?
Mr Ronson: Well, we have ideas. As to whether they’re actionable or realisable, that will be determined in due course.
Senator ROBERTS: Yes. This is something Ms Volzke raised. What is the effect of the statute of limitations and how would that apply to someone lodging a complaint today? Can they still lodge it?
Mr Ronson: Yes. As the chief counsel answered, it doesn’t preclude our investigations. The provision in the act only relates to enforceability in the event of proceedings, but there’s no reason why we can’t go back historically and look at historic underpayments and, if the allegations are upheld and there is an entitlement owing, to seek to secure that underpayment.
Senator ROBERTS: Is the Fair Work Ombudsman investigating beyond the statute of limitations to ascertain full amounts possibly underpaid?
Mr Ronson: Yes.
Senator ROBERTS: Thank you very much. Chair, I want to express my appreciation for Mr Ronson being direct. It enabled me to get through my questions. I also want to communicate to the secretariat that I’ll be on the road, so I won’t be able to ask the Fair Work Commission questions in the hearings, but I will put them on notice. And it’s the same with the coal long service leave.
https://img.youtube.com/vi/A5_eE4rV_cU/maxresdefault.jpg7201280Senator Malcolm Robertshttps://www.malcolmrobertsqld.com.au/wp-content/uploads/2020/04/One-Nation-Logo1-300x150.pngSenator Malcolm Roberts2025-03-06 09:58:012025-03-06 10:53:49Investigation into Wage Theft for Coal Miners in the Hunter
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.
Anthony Albanese and his Labor government have lost the people’s trust and support. Labor is tied to the CFMEU because of the union’s massive donations. They are also hiding the largest wage theft in Australia’s history, especially among miners in Central Queensland and the Hunter Valley, who are owed significant back pay.
Recent actions by Labor, such as the late submission of bills, suggest a cover-up to avoid scrutiny. Unions like the CFMEU have lost their way, evident during the COVID-19 lockdowns when members rebelled against their union’s lack of care. Labor abolished the ABCC despite criminal issues within the unions. Labor’s relationship with the CFMEU is a problem and is driven by donations.
As a former union member, I value true unions like the Miners Federation. Today, many union bosses prioritise personal gain, neglecting their members, as seen with the CFMEU and Mining and Energy Union. Workers are forced into monopolistic unions without choice, but alternatives like Queensland’s Red Union exist. Protecting union monopolies will further their demise and lower wages. Choice is crucial.
Look at this: Chandler Macleod Group, part of Recruit Holdings, the world’s largest labour hire company, works with the CFMEU and Mining and Energy Union in Hunter and Central Queensland. The federal government spends billions on labour hire – and the Fair Work Commission has approved these questionable arrangements. BHP, with union help, forced workers from permanent jobs to lower-paying Tesla labour hire, then to Chandler Macleod with another big pay cut.
We need open scrutiny and an inquiry, not just window dressing. The Bill should go to committee, or at least be heard on Friday. We want to amend the Bill to enable challenges to the Minister’s regulations. We are committed to seeing criminal charges laid against union crooks, reinstating the watchdog and pushing for comprehensive industrial relations reform.
Transcript
Trust has been lost. Anthony Albanese and his Labor government have lost the people’s trust, lost the people’s confidence, lost the people’s support. Labor supports the CFMEU because the CFMEU gives it massive donations—millions and millions of cash for election campaigns. Labor is wedded to the CFMEU. Labor is dependent on the CFMEU.
Labor is hiding the biggest wage theft in Australia’s history. Five years I’ve spent exposing the scam. We have an excellent independent report, Coal miners wage theft, done in February this year. It vindicates what I’ve been pushing for five years. Some miners in Central Queensland and the Hunter Valley are owed $41,000 per annum in wage theft. The Independent Workers Union, a new, fair-dinkum union operating in Central Queensland and the Hunter Valley, has lodged complaints for many miners because the CFMEU and the Mining and Energy Union have not bothered to do so. They won’t go after the back pay of the wage theft.
I’m aware of a complaint lodged just recently, in the last couple of days, to the Fair Work Ombudsman by the Independent Workers Union, seeking, for one person alone, $211,000 in back pay—$211,000 in wage theft that this Labor government condones and hides. The CFMEU drove the theft of wages from Central Queensland and Hunter miners. The workers’ former protectors in the CFMEU are now their exploiters. They’re hurting workers. I wonder: will Labor’s administrator allocate the CFMEU funds to make good the miners’ wages? For one person it’s $211,000; there are over 5,000 miners losing up to or around $41,000 per year of service.
Labor MPs are complicit because there has been a protection racket for their mates in the CFMEU. Labor MPs in the Hunter denied and then ignored my claims—my claims put to them in writing. I hand-delivered, to Dan Repacholi’s office here in parliament, my letter to him explaining this. Not a peep! Instead, we got lies from Mr Repacholi in the Hunter, and similar from Joel Fitzgibbon. Minister Watt in the Senate has denigrated, ridiculed and dismissed more than 5,000 miners’ legal improvement entitlements. And I have been proven correct.
Let’s return to Monday and Minister Gallagher’s word, ‘urgent’. ‘This is urgent,’ she said, as to the administrator for the CFMEU. I add two words: ‘cover up’. It’s a cover-up. Minister Gallagher says Labor’s administrator is ‘urgent’, yet Minister Watt dropped this bill on us late on Monday night. What gives? Do you expect us to believe that it was drafted on Sunday—that they did an all-nighter in the department on Sunday with lots of coffee? Why did Labor drop it on us without giving it to us earlier? Is it to avoid scrutiny? Yes—I can see some senators agreeing. When did the Greens and the teal Senator Pocock get copies? We’ve had instances in the past where they have got copies of new bills two weeks before we have and they’ve been dropped on us at the last minute.
Then Senator Gallagher sought exemption from the normal bills process. Speaking of exemption, Senator Gallagher said, ‘The Albanese government says it’s a clear path.’ Yet the bill is littered with the word ‘may’. It’s a very unclear bill. It needs the word ‘will’. Secondly, she said, ‘The people of Australia are expecting a clear response.’ With an unclear bill? I echo Senator O’Sullivan’s call for a hearing. Then Senator Gallagher said, ‘We will give you a firm view at the end of the week.’ You will only get a firm view with a hearing. We need a firm view and scrutiny of this legislation. We need ‘may’ to be replaced by ‘will’ quite often. We need an opportunity for bipartisan input.
I’m a former member of three unions. I know genuine unions are necessary. The genuine union movement has a long and proud history, going back to Wales and the lodge system in the Miners Federation, which I was a proud member and participant of. Yet today so many union bosses have forgot their workers and members. Why? Today workers’ protections are enshrined in law—as they should be—including safety, wages, conditions, security, retirement, health and many other provisions. Now the union bosses erode and steal these for personal gain, as the CFMEU and the Mining and Energy Union have done in Central Queensland and the Hunter. Personal gain and power, that’s what it’s about now, not looking after members. Why? Because they’re an untouchable monopoly. Workers need choice. Workers don’t have choice. They must join the union in their industry. That’s it. There’s no choice. The Red Union in Queensland and around Australia and in New Zealand is giving workers choice.
Thirdly, the Fair Work Commission and the Fair Work Ombudsman have failed to protect miners and workers. The Fair Work Commission has overseen and approved the theft of wages from casual coalminers in the Hunter Valley. As a boy, I lived in Central Queensland and the Hunter coalfields. My dad was in coalmining. I graduated with a mining engineers degree, an honours degree, and then decided I’d better go and learn something, so I worked at the coalface.
I came across Bill Chapman, the legendary president of the Northern District Miners Federation. He was a wonderful man. I sided with him in an open-air meeting when I worked at Westfalen’s No. 2 mine when I worked on the night shift there. My dad was complimented, highly, by Bill Chapman at my father’s retirement. My dad and Bill used to argue a lot, but they respected each other, because Bill was genuinely concerned about workers. I knew Mattie Best before he died. I worked with him. I played football with him. He was my football coach in Central Queensland when I played rugby league. He was a genuine union delegate who had respect from workers and management and fellow union bosses. He called out safety issues when they were abused.
I am proud to support real unions that work in workers’ interests. I worked as a mine manager with the CFMEU union bosses. We developed a landmark award that I instigated, and I instigated many previously undreamt-of provisions because they were to the benefit of the workers and productivity. I worked with the union.
The rank and file in the CFMEU in Victoria during the COVID mismanagement erupted in a mutiny against vaccine mandates and lockdowns. The members realised their union bosses did not care, and they revolted. Labor then abolished the Australian Building and Construction Commission. Senator Watt said, ‘Australians expected parliament to deal with criminal allegations inside the recalcitrant union promptly.’ How, looking at this vague bill? Where is the trust? It’s been smashed. Labor supports the CFMEU because of donations; Labor is wedded to the CFMEU because it’s dependent on donations.
Yesterday we heard Senator Pocock, a teal senator, say: ‘We need to be cleaning up the union.’ Has he forgotten that he supported the abolition of the ABCC? The CFMEU has assisted in theft from miners, as I’ve explained. They’re now exploiting miners. The Labor Party has been complicit. Both Joel Fitzgibbon and Dan Repacholi reportedly get campaign donations from the CFMEU. Then we get Labor’s fabrication.
The ACTING DEPUTY PRESIDENT (Senator Allman-Payne): Minister McAllister?
Senator McAllister: I wonder if Senator Roberts could be asked to refer to people by their proper titles.
The ACTING DEPUTY PRESIDENT: Thank you, Senator.
Senator ROBERTS: Labor fabricated an imaginary loophole, which the miners in Central Queensland and the Hunter Valley told me was a fabrication, and I worked out it is. Then they pretended to close the loophole with their closing loopholes bill. All it needed was enforcement of the Fair Work Act and the Black Coal Mining Industry Award. Minister Watt and Minister Burke, his predecessor, and Mr Fitzgibbon and Mr Repacholi are complicit in this way theft, the largest in Australia. Labor enabled casuals—
The ACTING DEPUTY PRESIDENT: Senator, please resume your seat. Minister?
Senator McAllister: Senator Roberts is reflecting very directly on a range of people, including ministers who represent the government in this chamber, and he should withdraw.
The ACTING DEPUTY PRESIDENT: It would assist the chamber. You were certainly straying into impugning members of the parliament.
Senator ROBERTS: To assist the chamber, and for that reason, I will withdraw. But Labor enabled casuals in coalmining. The Black Coal Mining Industry Award prohibited casuals on production; it still does. Labor, under Prime Minister Gillard, changed the coal long service leave provisions legislation to include casuals. I’m told that Anthony Albanese read the bill into parliament early in 2011. That’s what enabled this wage theft.
The ACTING DEPUTY PRESIDENT: Senator—
Senator ROBERTS: Sorry—Mr Albanese, the Prime Minister.
The ACTING DEPUTY PRESIDENT: This is happening reasonably regularly throughout your contribution. Could you please make sure that you refer to everyone to whom you are referring using their correct titles.
Senator ROBERTS: Certainly. Labor has forgotten workers. It’s actually helping union bosses—union bosses from the CFMEU—to exploit workers. Minister Watt knows of the wage theft, because he advised us of the Mining and Energy Union’s application for a new enterprise agreement. We advised him the application confirms our work. And yet there has been no Mining and Energy Union application for back pay. Why? Because when they were part of the CFMEU they deliberately conjured up illegal enterprise agreements. We’ve had no word from Minister Watt regarding the investigation into wage theft that the Senate required thanks to my amendment to a bill earlier this year. We do not believe that Minister Watt is fit to oversee the CFMEU administrator. It’s a furphy.
Look at the other unions, the health and safety unions, stealing from the lowest-paid workers in Australia, and SDA union bosses corrupt. The Fair Work Act covers union bosses’ greed, theft and abuse. Look at Craig Thomson. We’re tired of the cover-ups.
Let’s get on to the root cause. It was publicly revealed in the Australian Financial Review on 12 April this year. Their journalist David Marin-Guzman wrote an article headlined ‘CFMEU push to take control of the Labor Party’. I quote:
John Setka is planning to use the militant construction union’s hundreds of delegates and members to boost the CFMEU’s influence on internal Labor politics in the Victorian and federal parliaments.
Another quote:
Such a large membership drive could give the CFMEU significant control over Labor preselections and party conferences, which elect the party executive and vote on policy—
even the Premier in Victoria. That’s what’s going on here; it’s a power play.
Then we see Labor Premier Steven Miles in Queensland accused of silencing the Crime and Corruption Commission. Mark Le Grand, who spent 10 years as chief investigator at the then Criminal Justice Commission in the wake of the 1989 Fitzgerald inquiry, told the Australian there would have been no point in having the royal commission if Fitzgerald could not report on its investigation. Labor want to shut down the reporting. I could go on with more quotes.
We then have Robert Gottliebsen telling us of the dire predicament of Australia’s productivity decline. Falling productivity—yeah, that’s the key to wage rises! The CFMEU is guilty of destroying productivity. When productivity falls it kills industry, kills the future and kills jobs. Add that to the energy prices, the industrial relations policies, the inflation, the productivity decline. It’s killing the economy, killing national security and killing the standard of living.
This is about more than just the CFMEU administrator; this is about trust. We see in Queensland that the Labor Party and the union movement are not two separate entities; they are one entity. Minister Grace Grace, when she lost her seat and Campbell Newman took over a decade ago, went straight into a job at $180,000 a year at the Queensland Teachers Union. Then, when Labor got back into power, she slid straight back into working directly with the Labor Party. The whole time she worked with the Labor Party. We’ve seen the Labor government in Queensland outlaw the Red Union because it’s competition for the Queensland Teachers Union and the Queensland nurses union. There’s a monopoly in industrial relations and no accountability. Then we have provisions. I draw people’s attention to provisions such as to 323B in the new act, clause 1, clause 2, which I do not have time to go into at the moment. These are things we are focusing on. Section 323C clause 2, section 323D clause 1—so loose, so vague, so open. We need accountability. We need competition amongst unions with better service to members. We need higher sustained wages now and into the future, because an industry that is healthy will pay higher wages. That is a proven fact.
Protecting union monopolies will continue union demise and lead to lower wages. Choice is essential. Look at the players in this: Chandler McLeod Group, part of Recruit Holdings, the world’s largest labour hire company working with the CFMEU and the Mining and Energy Union in the Hunter and Central Queensland. Federal government itself uses billions of dollars of labour hire. The Fair Work Commission has approved these awards. BHP forced people to change from being BHP people with permanent employment to Tesla labour hire with a big pay cut, thanks to the union, and then forced to go to Chandler Macleod with another big pay cut.
We need open scrutiny, we need a hearing, not window-dressing. It needs to be sent to committee, or at least get a hearing on Friday. We are thinking of an amendment requesting the administrator investigate coalmining wage theft as per one union report and organise for the CFMEU finances to cover that—but it is not part of the bill, so we won’t be doing that. We want to amend the bill to allow disallowance of the minister’s regulations. We want to see criminal charges. We want to see the watchdog brought back and comprehensive reform to industrial relations.
https://img.youtube.com/vi/W5nkdBi2kaw/maxresdefault.jpg7201280Senator Malcolm Robertshttps://www.malcolmrobertsqld.com.au/wp-content/uploads/2020/04/One-Nation-Logo1-300x150.pngSenator Malcolm Roberts2024-08-29 16:10:032024-08-29 16:10:09Labor’s Union Ties and Cover-ups
The CFMEU has stolen over a billion dollars in Australia’s largest wage theft case, exploiting the very workers it was meant to protect. CFMEU union bosses colluded in this theft, as confirmed by an independent report I commissioned called Coalminers’ Wage Theft. An analysis of five enterprise agreements in Central Queensland and the Hunter Valley shows wage theft ranging from $21,000 to $41,000 per person, per year.
The Independent Workers Union of Australia has lodged multiple complaints with the Fair Work Ombudsman, including one for $211,000 owed to a single worker. Despite the Mining and Energy Union splitting from the CFMEU, it has recently applied to negotiate a new enterprise agreement, but won’t seek back pay for miners, as they know this would expose them. The Independent Workers Union now represents miners in Central Queensland and the Hunter Valley, charging union dues less than half of the Mining and Energy Union because they don’t donate millions to the Labor Party. The same is true for other sectors, like teaching and nursing, where new unions have much lower dues. We must end monopoly unions and introduce competition, which will allow members to hold unions accountable.
Labor Ministers, departments and agencies are colluding to enable wage theft, especially in the Hunter Valley electorate, where Labor MPs are complicit. Despite a Senate investigation being ordered months ago, nothing has happened — Labor is turning a blind eye, likely because they rely on millions in donations from the CFMEU. Minister Watt’s push for “no disallowance” is about maintaining control, with the party entangled in a power struggle with the CFMEU.
The CFMEU, tied to criminal bikie gangs, shows no concern for its members’ health, wages, or retirement. Union bosses, sitting on agency boards meant to protect workers, are either stealing from members or allowing it to happen. The conflicts of interest, particularly with CFMEU members holding positions on superannuation boards, are enormous. Labor won’t fix this, and their collusion with the CFMEU puts them above the law.
Transcript
The CFMEU stole more than a billion dollars from members it was supposedly protecting in Australia’s largest ever case of wage theft. The key to this theft was CFMEU union bosses appointed as directors to oversight agencies supposedly protecting workers. They colluded and enabled that theft from their own members. This is verified. The figures are verified in an independent report that I commissioned called Coalminers’ Wage Theft, printed earlier in the year.
We have seen an analysis of five enterprise agreements in Central Queensland and the Hunter Valley with the wage theft varying from $41,000 per person, per year to $21,000 per person, per year. The Independent Workers Union of Australia, now getting members in the mining sector in the Hunter Valley and Central Queensland, has just lodged a number of complaints with the Fair Work Ombudsman. One of the complaints is for $211,000 in money owed due to wage theft for one person.
The CFMEU drove that theft of wages, so what we can see is the former protector of miners has been their exploiter, with collusion of the regulator, the Fair Work Commission. It’s been verified independently because the Mining and Energy Union, which split off from the CFMEU—it couldn’t handle the CFMEU—and which looks after miners recently applied to the Fair Work Commission to negotiate a new enterprise agreement. The uptick in wages has been around $50,000. It’s been verified they’ve been underpaid. What has not happened is that same union, the Mining and Energy Union, which used to be part of the CFMEU, will not go back and seek back pay, because they know that will expose them. There is no back pay. They will let these miners lose $211,000. They will let these miners lose $41,000 per person, per year.
So now we have the Independent Workers’ Union of Australia making inroads in the mining industry in the coalmines of Central Queensland and the Hunter Valley. Their union dues are less than half of the Mining and Energy Union. Why? That’s because they don’t pay millions of dollars in donations to the Labor Party. It is the same with the Queensland Teachers’ Union. The new Red Union’s dues are less than half of the Queensland Teachers Union. It is the same with the nursing union, where the dues of the new Red Union and the Nurses’ Professional Association of Queensland are less than half of the Queensland Nursing Union. What we need to do in the union side of things is end monopoly unions and make sure unions have competition. That will fix it. Members can scrutinise when there is competition.
Let’s move to what I said earlier in my opening statement. The directors in the coalmining agencies that oversaw this theft from coalminers, the directors of Coal Mines Insurance, ignored the plight of miners. We even know of miners who failed to get their Coal Mines Insurance that they were entitled to, scrimping and saving and sleeping on their parents’ garage floor in the Hunter Valley. That’s what the CFMEU directors have done. They turned a blind eye to their duty to look after miners.
Coal Mines Insurance is a statutory agency with the CFMEU providing half the directors. AUSCOAL Superannuation, another one supposed to look after super, has provided admin services to coal long service leave, another government entity. So AUSCOAL Superannuation, which has directors from the CFMEU, provided the administrative services for coal long service leave and that enabled the hiding of the wage theft, because the CFMEU directors were 50 per cent of Coal Mines Insurance, AUSCOAL Superannuation and Coal Services, which looks after basic things like health checks, medical checks. AUSCOAL, by the way, has been renamed Mine Wealth + Wellbeing—that’s a cute little phrase!—and now Mine Super. These directors have prevented many of the benefits that they should have been overseeing going to miners. They stole the rights and entitlements of their own members.
By the way, the Labor Party under Julia Gillard changed the coal long service leave legislation in 2011 to enable the use of casuals, because casuals are not allowed in the black coalmining industry award. They wouldn’t have been able to get their super. So the Labor Party, to enable this scam, changed the coal long service leave legislation in 2011. The next thing: we can’t rely upon the normal back stop, which is the Labor ministers, departments and agencies. I’ve just explained how the agencies are colluding, the departments are colluding and the Labor ministers are colluding. This wage theft would not have occurred without the deliberate collusion of Labor Party MPs in the Hunter electorate, who just hid this atrocious theft. The Senate ordered an investigation a couple of months ago into this. Two ministers since then, Minister Burke and Minister Watt—they’ve done nothing. They had not even reported back to the Senate—they’ve done nothing. That’s the Labor Party. So much for looking after the workers!
I wonder if it’s because the Labor Party relies on millions of dollars of donations from the CFMEU? Would that be the answer? Would it?
Senator Hanson:Yes.
The Labor Party is wedded to donations from the CFMEU, the crooked CFMEU. Minister Watt, in section 323B(2) of his legislation, to which we have an amendment, wants an absence of a disallowable regulation. He wants no disallowance, so that he can control the whole show. Then we see the Labor Party also being tainted by John Setka. In a report in the Australian Financial Review, on 12 April this year, David Marin-Guzman, a journalist with the Australian Financial Review, said that ‘the core issue here is that John Setka stood up and said he will take over the Labor Party and move members of the CFMEU into branches and then preselect various candidates, and also the Premier’. That’s what we see going on here—the Labor Party in a massive cover-up and massive wrestle with the CFMEU. By the way—I think Senator Hanson mentioned it—the size of the funds in question is just short, $1 billion short, of $100 billion in funds. That is twice the Australian defence budget. That’s more money than Belgium makes in a year. And we want to take it away from parliamentary scrutiny? Like hell. That’s why we need this reference to the committee.
Then we see more tainting, with the CFMEU being connected with bikie gangs, criminal bikie gangs. Then we see Senator Hanson’s terms of reference. I must commend Senator Hanson for introducing this motion. The first term of reference that I want to highlight—I’ll read it for the reference committee:
… the broader impact of public allegations of misconduct within the CFMEU on the governance and trust management practices of industry superannuation funds …
That’s basic. These people have shown that they don’t care about their members—their members’ lives, their members’ health, their members’ workers compensation, their workers’ livelihoods, their workers’ wages or their workers’ retirement. They don’t care. They bypassed the retirement provisions. The next one I want to read out is term of reference (a):
… the implications of CFMEU members holding board positions on these superannuation funds, and the potential conflicts of interest that may arise …
The potential conflicts of interest are enormous. We can’t rely on the Labor Party to clean it up, nor on departments and agencies from the Labor government. We see them tightly knit together. The second of Senator Hanson’s six terms of reference is:
the adequacy of the independent expert review mandated by the Australian Prudential Regulation Authority (APRA) in relation to trustees’ compliance with their duty to act in the best financial interests of beneficiaries of the funds;
This is absolutely essential. The CFMEU union bosses who are directors of agencies—statutory bodies charged with the responsibility to protect members—are stealing from the members or enabling their agencies to steal from members. This lot are above the law. Senator Hanson read out the note from the person from Cross River Rail who is not a member of the CFMEU. They are ‘intimidated’, ‘frightened’ and ‘scared to work’—in our country, they are scared to work. We have now a proven record of the CFMEU stealing from members and workers. Wouldn’t it be going on in the $100 billion of super funds they manage? I support the referral of this matter to committee, to protect members so that they can retire with security and dignity.
I enquired about the number of requests for assistance that had been sent to the Fair Work Ombudsman (FWO) and was informed that none had been received during that week, attributing this to potential delays in processing. They mentioned that their preferred method for addressing issues is via phone calls and stated they wouldn’t be establishing any new methods for submitting materials that exceed the current 1000 character limit.
Furthermore, the FWO made it clear that they wouldn’t be accepting responsibility for the validity of any enterprise agreement approved by the Fair Work Commission.
Transcript
Senator ROBERTS: Thank you for appearing again.
Ms Booth: Senator.
Senator ROBERTS: How many complaints has your office received about stolen wages from coalminers working for labour hire companies?
Ms Booth: We may or may not be able to give you that information right now, but I cannot. My staff may be able to assist. Ms Volzke, do you have those numbers?
Ms Volzke: I don’t have the exact number. The requests for assistance are low, but you know that we have had a number of formal investigations in relation to black coal mining employees.
Senator ROBERTS: Ms Volzke, three requests for the Fair Work Ombudsman to investigate worker underpayment under the Black Coal Mining Industry Award were sent to your office recently.
Ms Booth: We could ask Mr Scully if he has that information, as he’s the responsible person.
Mr Scully: As for your first question, the information I have before me is that, with respect to disputes received from employees or participants in the coalmining industry, in the 2022-23 financial year there were nine; in this current financial year to the end of March there were six.
Senator ROBERTS: Does that include the recent ones I have learned about?
Mr Scully: Of the recent ones you are referring to, one was in October 2021, another was in April 2022 and another in June 2023. I understand that they would be included in those numbers.
Senator ROBERTS: I have learned of three others that were submitted. The Independent Workers’ Union of Australia submitted, I am told, via email address, three requests for the Fair Work Ombudsman to investigate worker underpayment under the Black Coal Mining Industry Award, each of the three on behalf of an underpaid coalminer. That was in the last week.
Ms Booth: We wouldn’t that have data available yet because it wouldn’t have reached the status of an investigation; they would have to be triaged first. So that will be for another Senate estimates.
Ms Volzke: Senator, in relation to those most recent complaints, would I be able to ask about the date and time of the underpayments? Are we talking about historical, older underpayments?
Senator ROBERTS: It varies. Some are over extended years. I can give you some information. The miners whose assessments have been completed have given approval for their data to be shared, with individual names withheld. I can give you their Fair Work Ombudsman reference numbers. One is coalminer Fair Work Ombudsman reference No. 3389142, years assessed 2013-18, and amount underpaid $121,000. That is for one man or maybe a woman; I know that there are women involved. Another is coalminer Fair Work Ombudsman reference No. 3380088, years assessed 2013-21, and underpayment assessed at $104,000. A further one is coalminer Fair Work Ombudsman reference No. 3380122; five years are listed, but he or she is still doing assessments for another three years, and the total there, so far, is $54,000, but it’s expected to top out at $85,000. These are not small amounts of money. My understanding is that many more miners are now applying for the Independent Workers Union of Australia to lodge complaints or, I think you call them, requests for investigation.
Ms Booth: Requests for assistance.
Ms Volzke: Senator, in relation to those matters, again, they traverse a period of time when we had the SAJER legislation passed, which was under the previous coalition government, and the Rossato decision; they sit over the top. Now we have the most recent legislation, and I think Minister Watt referred to one of those ‘same job same pay’ orders already having been made. All those matters that you raise still raise those core issues that we spoke about previously, when you and I met, I think, towards the beginning of last year, about the consequences of the black coal mining award not providing for casual employment. The statutory definition changes to casual employment that had retrospective effect—
Senator ROBERTS: Have you seen their request for investigation?
Ms Volzke: No. That’s just by the dates that you’ve given me; that’s all. Absolutely, we’ll look at those, but I’m saying that they traverse that same time period.
Mr Scully: Senator, we call it a request for assistance and, as you’ve indicated, if they’ve come in recently, they will not have got to me or Mr Ronson, who is also with us today. We will find where they are in our system and the circumstances regarding the requests for assistance.
Senator ROBERTS: Why are complainants limited to only 1,000 characters in their request for assistance or request for investigation—that’s about 130 words—in making a complaint about unfair work practices, including wage theft in the coalmining industry; why are they limited?
Ms Booth: I would imagine that is in order to have both a website that’s capable of being properly hosted and information capable of being absorbed. The full extent of information that’s provided to the Fair Work Ombudsman is not contained in those characters. That’s a commencement process and, thereafter, individuals who have made those communications with us would be spoken to.
Senator ROBERTS: Why does the Fair Work Ombudsman refuse to accept complaints that are more detailed than those that can fit within a 1,000-character limit?
Ms Booth: The area of technology is in Mr Campbell‘s purview. This will be entirely a technological matter, I’m thinking. Mr Campbell, are you able to say anything about the number of characters in our communications form?
Mr Campbell: I’m going to have to guess a little bit in my answer and I don’t like to do that in this forum. It depends on the channel through which the people you speak of have sought to engage with us. In certain channels we do have limited fields for the collection of information from customers. Normally, that goes to complaints through our anonymous inquiry facility. But through ‘my account’, where we would normally access most of our requests for assistance, there would be the ability to capture more information, and that’s normally because the person has given us all their information that we’ve sought and they’re seeking to provide us with further information to assist us in making an assessment of their RFA, or request for assistance. I’m not quite sure that they’re limited from writing more than the characters that you’ve said.
Senator ROBERTS: My understanding is that they tried to make an application but couldn’t get beyond the bureaucratic brick wall of that 1,000-character limit, which is roughly 130 words. Why was there no email address on your website, other than one that the submitters are told relates to freedom of information requests? When they couldn’t get their material under the 130-word limit, they then looked for an email, and the only one they could find they used, and were told that it relates to freedom of information requests.
Ms Booth: Most of our requests for assistance come through a telephone contact. Of course, our 13-13-94 number gives no limit to the amount of information that can be conveyed, so that option perhaps in this case was not one that was undertaken by those people.
Senator ROBERTS: These are pretty intelligent people. I’m surprised that they did not see it.
Mr Campbell: I don’t know. I don’t want to speak to that, because I’d be making a judgement about their intelligence, and I can’t do that from here. But our request for assistance online lodgement capability seeks to authenticate the person who’s contacting us, so we know who they are and who we’re dealing with, and information about their circumstances, and that would include seeking them to detail their concerns to us. It’s not my recollection that’s limited. I’m happy to go and have a look because it would seem at odds with how we’re trying to collect information in the authenticated space. As I offered at the start, there is a facility for people to provide us with anonymous information about a workplace or circumstance, and that might have a limited character overlay on top of it, which might be where they’ve started, as compared to seeking to raise with us a request for assistance using online lodgement.
Senator ROBERTS: With, say, a document with 20, 30 or 40 pages of evidence—these people have a lot of evidence—even just taking a small slice of it, they were wondering initially how they would get that past that bureaucratic brick wall.
Mr Campbell: I don’t think there is a bureaucratic brick wall.
Senator ROBERTS: That’s what they tell me.
Mr Campbell: Perhaps I could take it on notice and confirm it for you.
Senator ROBERTS: Okay.
Ms Booth: As Fair Work Ombudsman, could I reassure the committee that there is no bureaucratic brick wall. If anything, the channels of communication into the Fair Work Ombudsman that I’ve observed, since I have been Fair Work Ombudsman, are many and varied, and there is no constraint on the amount of information that can be provided.
Senator ROBERTS: So you would refute any suggestion that the Fair Work Ombudsman is trying to make it impossible for workers to provide evidence?
Ms Booth: Absolutely, I would refute that.
Senator ROBERTS: Could we have a list, on notice, from Mr Campbell?
Mr Campbell: I’ll take that on notice and come back—
Senator ROBERTS: Yes, a list of all the optional ways of getting through and maybe some assessment of whether it’s easy to identify those options; that is, whether it would be easy to find, for someone who lands on your website?
Mr Campbell: Absolutely.
Senator ROBERTS: How should workers submit a complaint? How do workers communicate with you, and how do workers get through that 1,000-character limit? What are the options?
Ms Booth: Make a phone call. Ring 131394 and speak for as long as you like to a Fair Work adviser.
Senator ROBERTS: From there, you would say, ‘Send us the evidence’?
Mr Campbell: It would be allocated to an officer for assessment and determination about what further assistance we might be able to add or offer. If the circumstance, as depicted to us, warrants an intervention by an inspector, for example, it might be allocated to an inspector, who would then consider it, and they might seek further particulars from the customer or the complainant, depending on the circumstances.
Senator ROBERTS: Would the Fair Work Ombudsman consider creating an email account where complainants, regarding wage theft, can lodge their complaints in full, with all documentation required to prove their complaint?
Mr Campbell: No.
Senator ROBERTS: Why not?
Mr Campbell: Because it’s an inefficient way to deal with disputes from customers.
Senator ROBERTS: Why is it inefficient?
Mr Campbell: Because they are unauthenticated contacts from a customer. Anyone can create an email address. We seek to create a picture of the customer so that we can determine how we can best assess them: understand award coverage, understand which sections of the Fair Work Act might be triggered by their circumstances, make a determination on their level or ability to self-resolve their workplace dispute and find out whether they’re still employed, the business that they work for and the customer details. We have a portal which is used daily and regularly, and very successfully, by thousands of individuals every year. It is consistent with every other regulator in the Commonwealth and probably at the state level, in terms of how they deal with volume complaints from their ‘regulator’ community.
Senator ROBERTS: Is the Fair Work Ombudsman aware that the Senate has directed Minister Burke to investigate the multimillion-dollar wage theft—we estimate it to be over $1 billion in total—conducted against labour hire coalminers, where their 25 per cent casual loading was not paid and an average of more than $30,000 person per year was not paid?
Ms Booth: I am aware that a resolution of that nature was passed in the Senate, yes.
Senator ROBERTS: Are you aware that some miners have been underpaid $40,000 a year, person, for up to a decade?
Ms Booth: I have no comment on that.
Senator ROBERTS: The number of miners, we believe, is around 5,000 or more?
Ms Booth: No comment on that.
Senator ROBERTS: More than $1 billion in wages stolen, it’s estimated?
Ms Booth: Again, no comment.
Senator ROBERTS: Including an Australian subsidiary of the world’s largest labour hire company, Japan’s Recruit Holdings?
Ms Booth: These are matters that you’re asserting; I have no ability to verify them here, so I will not comment on them.
Senator ROBERTS: On behalf of some of the world’s largest multinational global mining companies?
Ms Booth: As indicated.
Senator ROBERTS: In collusion with the CFMEU, which enabled theft by illegal enterprise agreements, which the Fair Work Commission approved?
Ms Booth: Again, no comment.
Senator ROBERTS: Is the Fair Work Ombudsman aware that the CFMEU Mining and Energy Union has recently admitted publicly, in circulars, that wage theft has occurred?
Ms Booth: I’m not aware of those alleged admissions in circulars, no.
Senator ROBERTS: They denied it for many years, when I was raising these issues. Now they’re admitting it publicly, in email newsletter form. They’re basically admitting it, and vindicating me in what I’ve been saying for five years, including the amounts owed. Why has the CFMEU Mining and Energy Union not applied for backpay?
Ms Booth: I can’t read the mind of the CFMEU.
Senator ROBERTS: Has it applied to the Fair Work Ombudsman for a ruling?
Ms Booth: A ruling?
Senator ROBERTS: An investigation. Has it made a complaint to the Fair Work Ombudsman about underpayment?
Ms Booth: Not that I’m aware of. Mr Scully, as you previously heard, is responsible for that area.
Senator ROBERTS: It seems not; I would conclude not. That means they certainly haven’t applied for backpay. Perhaps mine workers are now joining the Independent Workers Union of Australia in Central Queensland and the Hunter Valley because they’re finding that they can make applications for backpay.
Ms Booth: Again, I have no knowledge of that.
Senator ROBERTS: Will the Fair Work Ombudsman, along with the Fair Work Commission, accept some responsibility for the massive stolen wage bill, an issue that I’ve been raising for almost five years?
Ms Volzke: We’re aware that the motion has been made and we understand that, in the evidence that was given yesterday, the department is considering their advice to the minister on that, and we will await that as well.
Senator ROBERTS: I’ve been dismayed—I won’t raise the names—that, on a number of occasions, the Fair Work Ombudsman has relied in Senate estimates hearings on documents that I have argued and documented as being fraudulent, as has Simon Turner, and I showed those documents to be fraudulent. Are you aware of that, Ms Booth?
Ms Booth: I’m aware of your assertions,
Senator ROBERTS. My observation is that the Fair Work Ombudsman assesses a request for assistance comparing workers’ actual payments received with their lawful entitlements under their work instruments. That is our obligation and that is what we do.
Ms Volzke: We provided a formal letter in relation to one of those complainants, under a letterhead dated 23 July 2023, about those allegations of fraudulent evidence.
Senator ROBERTS: My understanding of that letter is that it ignores documented evidence and decisions from other federal government agencies saying that the document that the Fair Work Ombudsman officers relied upon was not correct and was fraudulent; is that the same letter?
Ms Volzke: It is. It is, I think, about a six-page response, so I would consider it to be very thorough. The outcome of our investigation into that is included in that letter.
Senator ROBERTS: I don’t agree that something is thorough or accurate just because it’s lengthy.
Ms Volzke: I would say that, in relation to the investigations that we have undertaken into a couple of individuals, which I’m sure you’re well aware of, I feel very confident that the Fair Work Ombudsman has undertaken an extremely comprehensive investigation in relation to all of those matters. I feel very confident in the outcomes. In terms of what the law is and what the legal outcome is, I feel very confident in those outcomes.
Senator ROBERTS: Could we have a copy of that letter dated 23 July 2023, please? That doesn’t have to be right here and now, but could we have that on notice.
Ms Volzke: Yes, of course.
Senator ROBERTS: Will the Fair Work Ombudsman continue to deny that the miners have been the victims of a massive fraud that labour hire companies have perpetrated?
Ms Volzke: Again, as the regulator, it’s our role to apply the law as it currently stands, including when an agreement has been approved as passing the BOOT by the Fair Work Commission. We apply that agreement. That’s exactly what we’ve done in relation to those investigations where there has been an agreement that has applied.
Senator ROBERTS: What about if the enterprise agreement is illegal?
Ms Volzke: I don’t think we should speculate around hypotheticals. We know of various cases, and I think in previous estimates we’ve spoken about them: the Warren case, One Key and another more recent one. The reality is that the legal effect of the Black Coal Mining Industry Award not providing for casual employment in operational roles has not been comprehensively argued or subject to submissions by any party, so there has not been an authoritative determination on that issue.
Ms Booth: I think it really is very important to understand the distinction between the role of the Fair Work Ombudsman and the role of the Fair Work Commission. Whatever we would like it to be is not in our purview; we look at what is, in terms of the law. We look at the law as it stands and not at how the law came into being or what it ought to be in the future.
Senator ROBERTS: That’s fine. We’re seeing what seems to me to be—and I’ve been advised that this is correct—criminal involvement of some CFMEU or Mining and Energy Union bosses who facilitate, enable and approve the wage theft through illegal enterprise agreements. I’ve asked Mr Campbell for the process that people can follow for various ways of applying. Could you also advise me of any ways that the Fair Work Ombudsman could consider to make the process easier. Maybe think about the perspective of someone making a complaint or a request, including what they would confront when they log on to your website and how that process could be made easier.
Mr Campbell: I’ve taken the questions on notice and I’ve undertaken to get you the information. I don’t want to open up the dialogue again; I’ve said yes, so I will do it.
