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CASA Defends Enforcement Actions

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I questioned the Civil Aviation Safety Authority (CASA) CEO Ms. Spence regarding the authority’s heavy-handed treatment, regulatory delays and conflicts of interest directed at Mr Barker and his company, UAS Pacific.

When pressed about why Mr. Lewis — a former UAS Pacific employee whose credibility, motives, and personal “axe to grind” were flagged in Fair Work Commission materials —was allowed to be involved in matters concerning Mr Barker, Ms Spence insisted that Mr Lewis has had no involvement since 2019. However, she agreed to take on notice requests for conflict declarations, management plans and access records.

CASA was also questioned over its use of disputed claims to justify severe enforcement actions, licence restrictions and prolonged delays that choked UAS Pacific’s business. Although Ms. Spence claimed a third party verified an initial 2018 issue, she agreed to provide summaries of completed jobs and confirm that neither Mr Lewis nor Mr Duffy were involved in them.

Regarding Fair Work Commission proceedings and the undertakings put in place, Ms Spence maintained there were no formal FWC orders or findings of bullying against CASA officers, though she conceded the transcript reflected a preliminary view that a CASA officer indeed had a personal “axe to grind” against Mr Barker.

Despite admitting failures in implementing conflict-of-interest policies regarding Mr Lewis, Ms Spence refused to commit to an independent review and as for the false or unsupported accusations kept on file, she noted that access to specific 2019 records has been restricted and annotated and agreed to provide details of that approach on notice.

Transcript

Senator ROBERTS: Ms Spence, at the last Senate estimates I put to you that CASA relied on Mr Mark Lewis, a former UAS Pacific employee, to essentially destroy his former employer, Mr Barker, and UAS Pacific, Mr Barker’s company. The Fair Work Commission material raised serious concerns about Mr Lewis’s conflict, motive and credibility. CASA now relies on a full prohibition of access to criticisms of Mr Barker from January 2021. Isn’t the real question why Mr Lewis was allowed any involvement before or after that date?  

Ms Spence: Without going over the ground that we’ve gone over before, I don’t agree with the way you’ve described the situation. We did point out previously that there were issues with the way in which, initially, the conflict of interest was managed in relation to Mr Lewis. That was addressed some time ago—I think around 2019. So he has no involvement whatsoever with UAS Pacific now.  

Senator ROBERTS: We know that he doesn’t have any involvement now. Will you please provide all conflict declarations, conflict management plans, access records and decision records concerning Mr Lewis and UAS Pacific.  

Ms Spence: I’ll take on notice what we can provide.  

Senator ROBERTS: You told this committee that CASA was looking into whether evidence given to the Fair Work Commission was misleading. CASA’s written answer now says that a broad review began on 8 October 2025. It gives no terms of reference, reviewer identity, scope, affected officers, documents being reviewed, external referral or completion date. Isn’t it true, Ms Spence, that CASA has still not provided enough information to show whether this is a genuine integrity review or merely another internal containment process?  

Ms Spence: I think that was referring to some material that Mr Barker has provided to the board. Over the period from September through until as recently as April, we had about 790 pages of documentation provided to us. Every couple of months it’s being sent through. We are taking it seriously. We’re working through the material that Mr Barker has sent through to us, but, obviously, the time for us to be able to conclude the review is dependent on us actually getting Mr Barker to say there’s no more information for him to provide to us. So we are working towards having advice to provide to our board on the serious allegations that Mr Barker has raised about CASA’s behaviour. We have also been very clear that—should Mr Barker wish to take this up with the AFP, the NACC or anyone else—we would obviously support any investigation that anyone else wanted to raise. We are working through the information that’s been provided to us, and we’ll be reporting to the board at their next meeting later next month, subject to Mr Barker not providing any more information that we would then need to review and assess.  

Senator ROBERTS: So it’s an invitation for Mr Barker to tell you two things: provide further information and notify you when the end has come.  

Ms Spence: My strong hope is that Mr Barker has provided us with every piece of information that he thinks the board needs to have in order for us to be able to complete an assessment of whether there was inappropriate behaviour within the organisation.  

Senator ROBERTS: Could you, on notice, provide the terms of reference for your inquiry.  

Ms Spence: There are no terms of reference to the inquiry. We’re reviewing the material that Mr Barker has provided to us, which, as I’ve said, has come through over a number of emails—from September until April this year.  

Senator ROBERTS: Any external referral?  

Ms Spence: We have said that, if he wishes to make an external referral, we would be happy to support that. But we have not seen any evidence, and we are acting on information as we review to see if there is anything else we need to do rather than wait till the end point. We haven’t seen anything to suggest we should be making referrals, but, if Mr Barker wishes to make a referral, we would be very happy to support any investigation.  

Senator ROBERTS: Could you just provide me, on notice, with material that proves this is a genuine inquiry. Tell us what you’re doing.  

Ms Spence: I’ve just told you what I’m doing. I’m not sure what else—  

Senator ROBERTS: It’s pretty loose.  

Ms Spence: We’re reviewing the information. It’s based on the request that Mr Barker has sent to us saying, ‘Here is a list of my concerns about the way CASA has behaved, and here is the documentation that supports it.’ We are forensically reviewing the information that Mr Barker has provided us, to determine whether there is evidence to support the allegations and assertions that he’s made.  

Senator ROBERTS: How do you conduct a forensic review?  

Ms Spence: The Industry Complaints Commissioner is reviewing all the material that is being provided and will provide advice to the board on the matters that he’s identified as part of that review process.  

Senator ROBERTS: I’ve previously put to you that CASA relied on disputed and allegedly false claims to pursue heavy-handed enforcement, including criminal allegations and jail threats, which effectively shut down Mr Barker’s business and put staff out of work. Given CASA now admits it is reviewing potentially false and misleading evidence, has CASA reviewed every enforcement action, show cause process, licence restriction, downgrade, refusal, delay or adverse assessment involving Mr Barker or UAS Pacific? 

Ms Spence: The first point that I would make—  

Senator ROBERTS: I’m sorry, just the restrictions that may have relied on Mr Lewis, Mr Duffy or the disputed material.  

Ms Spence: To start off with, while I don’t want to go into the details of what the original issue was, we have third-party independent verification that the initial issue that occurred back in 2018 was verified. It was a serious issue that was identified, and we took appropriate action as a result of that identification. What we’re doing now— as I said, we have found no evidence to suggest that the first issue that was identified was incorrect on our part. We do have someone external to CASA who has confirmed that the issue identified was correct. So if we can just keep in mind that the regulator has to take appropriate action when a serious issue is identified, and that’s what we did. We have been reviewing all the jobs that Mr Barker has worked on with CASA, and we are working through to make sure that there’s no evidence to say that we have unduly delayed things. He sent some information as recently as yesterday, identifying two other examples where he suggested that we were being unduly slow or making life difficult for him. We’re reviewing those at the moment.  

Senator ROBERTS: Are either Mr Duffy or Mr Lewis part of the reviewing team?  

Ms Spence: No.  

Senator ROBERTS: Will CASA now table a positive involvement schedule stating for each UAS Pacific matter whether Mr Lewis or Mr Duffy had direct or indirect briefing, file access, referral, drafting, review, approval or no involvement?  

Ms Spence: I’m sorry, Senator, I don’t understand the question.  

Senator ROBERTS: Will you now table a positive involvement schedule? In other words, were Mr Duffy or Mr Lewis involved in any direct or indirect briefing, file access, referral, drafting, review, approval or no involvement at all with UAS Pacific?  

Ms Spence: I can’t remember the actual date, but I know that neither Mr Duffy nor Mr Lewis have had any involvement in relation to UAS Pacific, certainly for the last four years that I can recall. I don’t know how I can put a statement together which says, ‘Here are all the approvals and here’s confirming that Mr Lewis and Mr Duffy weren’t involved.’ I am telling you they have not been involved. That’s my positive assurance that they have—  

Senator ROBERTS: That’s in the last four years. What about prior to that?  

Ms Spence: I would have to check to see the last time that Mr Lewis was involved, but I think it would have been about 2019.  

Senator ROBERTS: Thank you. Could you take that on notice and give me the circumstances around his involvement and what the topic was.  

Ms Spence: Certainly.  

Senator ROBERTS: I also put to you that CASA removed or downgraded UAS Pacific’s privileges and delayed routine approvals for months or years, choking what was left of their business, destroying goodwill and driving away clients. The 2021 independent remotely piloted aircraft system—you guys go for acronyms, don’t you?  

Ms Spence: Yes, we do. Usually they’re three-letter acronyms, so RPAS is special.  

Senator ROBERTS: The 2021 independent remotely piloted aircraft system review records industry concerns about substantial business losses caused by CASA delays, inspector inconsistency and over-prescriptive risk management. Could you please provide a full schedule of every UAS Pacific approval, variation, downgrade, refusal, delay or regulatory service request since 2017—that’s nearly a decade—showing the decision-maker, the reason, the timeframe and whether it was reviewed in light of the RPAS review?  

Ms Spence: As I said, we are looking at the applications that UAS Pacific has made. We will provide on notice a summary of the jobs that have been completed and just who has been involved in them, confirming that neither Mr Lewis nor Mr Duffy have been involved in them, and whether they met our normal service level standards in terms of how long they took to process.  

Senator ROBERTS: I don’t want a summary. I want more than a summary. I want to see the regulatory oversight since 2017, showing the decision-maker, the reason and the timeframe.  

Ms Spence: We will provide as much information as—I’m just trying to work through how our system will actually provide the information that you’re asking for. So, if you can allow us to take that on notice—I understand what you’re asking for—I will provide you with as much information as is available to give you a level—  

Senator ROBERTS: And where you can’t provide it, provide the reason why you can’t.  

Ms Spence: Yes.  

Senator ROBERTS: You suggested the Fair Work outcome did not amount to findings against CASA. But isn’t it true that the bullying matters were not dismissed because CASA’s conduct was found acceptable, but only after substantial undertakings and restrictions were put in place to prevent future bullying conduct? Isn’t that true?  

Ms Spence: No. There was no finding that was made because of the undertakings that were provided, which was not a response by CASA to say that we were concerned about bullying or harassment; they were simply—in light of the issues that Mr Barker continued to raise, it was an undertaking to say that we would keep those relevant staff members away from UAS Pacific. It was never a reflection of our concern about the behaviour of those two officers.  

Senator ROBERTS: What about the bullying?  

Ms Spence: There was no suggestion that there was any bullying or harassment by those two officers.  

Senator ROBERTS: No, by anyone.  

Ms Spence: By anyone.  

Senator ROBERTS: There was no Fair Work Commission decision referring to bullying?  

Ms Spence: No.  

Senator ROBERTS: Will CASA now table the bullying investigations that you did, and any undertakings, restrictions, monitoring arrangements and any internal assessment of whether CASA fully complied with any or all of the Fair Work Commission orders?  

Ms Spence: There were no Fair Work Commission orders.  

Senator ROBERTS: None at all.  

Ms Spence: None. No, there were no Fair Work Commission orders.  

Senator ROBERTS: What was the Fair Work Commission’s involvement?  

Ms Spence: They reviewed the issues to determine whether they had jurisdiction, and they also tried to understand the basis on which Mr Barker and Mr Nowak were making their allegations. In both instances, there was no finding against CASA. In the first instance, there was nothing for them to look at because of the commitment to not engage with Mr Duffy and Mr Lewis and Mr Barker; and, in the second one, there was no evidence to support the assertions that had been made. It was found to be outside their jurisdiction.  

Senator ROBERTS: When I put to you that the Fair Work Commission had found a personal vendetta or axe to grind—quote—by Mr Lewis against Mr Barker, you said you’d need to check the transcript. Have you now checked it?  

Ms Spence: Yes, and I provided written advice to the committee, which was to say that the transcript did not use the word ‘vendetta’. It did indicate a preliminary view that the CASA officer had an ‘axe to grind’ with respect to Mr Baker, but that was not a finding or an order or any kind of action that the Fair Work Commission was telling CASA to take action on.  

Senator ROBERTS: Do you now accept that the Fair Work material raised serious adverse credibility and motive issues concerning Mr Lewis?  

Ms Spence: No.  

Senator ROBERTS: You told this committee that there were lessons to be learned about conflict of interest management, yet CASA’s written answer to questions on notice says, ‘CASA has not reviewed or amended its conflict of interest policies.’ How can you claim to have learned lessons while admitting you haven’t reviewed or amended the relevant policy framework?  

Ms Spence: It was around the way in which we applied the policy to Mr Lewis, and that was the lesson that we learned, and—  

Senator ROBERTS: Could you be specific.  

Ms Spence: We identified that the language in the conflict of interest could be stronger. But the policy itself was not the issue; it was more how we implemented it.  

Senator ROBERTS: Will you now commit to an independent conflict of interest review and table the outcome?  

Ms Spence: No.  

Senator ROBERTS: Why not?  

Ms Spence: We review our policies on, I think, an annual basis. I’d have to take that on notice. But I’ve got no evidence to suggest that, as a result of one incident where we did not implement the policy as effectively as we should have, there’s a fundamental issue with our conflict of interest policy.  

Senator ROBERTS: So that’s the only breach—one?  

Ms Spence: That’s the only one that I’m aware of.  

Senator ROBERTS: I asked whether CASA has left false or unsupported accusations on file about Mr Barker, UAS Pacific and their staff. You answered by referring to one person and one withdrawn allegation and by saying that records simply cannot be destroyed. But isn’t it true that Mr Barker is not asking for unlawful destruction of records but for CASA to meet its legal obligations to correct, annotate, withdraw, restrict and prevent false or unsupported allegations from being used in future CASA decisions?  

Ms Spence: We have updated the approach that we used for Mr Nowak in relation to a specific event, which occurred in 2019 at a licensed aerodrome in Queensland, where we have increased—or reduced the number of people who can access it, I think, down to myself, and I’m not sure—very limited people can access it. We’ve also put an annotation on it so that anyone, if they do get to see it, would know that this notice was overtaken by events. But that was in relation to one specific event; that was not in relation to every issue that Mr Barker has with us.  

Senator ROBERTS: Will you table a complete record correction?  

Ms Spence: I can certainly table the approach that we have taken, or I can provide on notice the approach that we have taken, in relation to that specific event about ensuring that the information is not available to anyone in the organisation who shouldn’t have access to it. Anyone, if they did find access to it, would see very clearly that it was overtaken by subsequent events.  

Senator ROBERTS: CASA confirmed that CASA did not fully accept all recommendations of the 2021 independent RPAS review and that CASA focused on the recommendations rather than the review’s analysis commentary. The review records series concerns about regulatory overreach, retribution, passive-aggressive delays, vindictive enforcement, procedural unfairness, personal animosities and conflicts not properly mitigated. Will you now table the full unredacted review, the 6 May 2024 CEO DAS approval package and the recommendation by recommendation—  

Ms Spence: Senator, that was included in the questions on notice that we tabled. The only redactions, I think, were to remove a few names, consistent with our normal practices. That’s been tabled.  

Senator ROBERTS: My apologies for that one. Thank you very much. Thanks, Chair. 

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Drill, Refine, Secure: Solving the Fuel Crisis for Good

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The Albanese Labor Government’s Fair Work Amendment (Fairer Fuel) Bill 2026 was nothing more than a drop in the tank during the fuel crisis. While its aims were to reduce lead times for renegotiating road transport contracts from over a year to a few weeks, it failed to solve the broader issues crushing our economy, agriculture, and everyday families.

Labor’s rushed these poorly drafted bills without proper consultation. This legislation hands unchecked, unscrutinised powers to the minister to interfere in the Enterprise Agreements protecting independent trucking companies indefinitely.

One Nation supported this bill because we wanted to offer immediate relief to our critical trucking industry. However, A One Nation government will amend it. We will mandate a sunset clause, require a formal declaration of emergency as a legislative instrument, and ensure measures expire as soon as the crisis ends.

The government should have invoked the Liquid Fuel Emergency Act 1984 weeks before this legislation was introduced. Doing so would have forced foreign multinational oil companies to release hoarded fuel reserves into the market, reining in regional price gouging.

While trucks keep Australia supplied, farmers face doubled fuel costs, making winter crop planting unsustainable. Labor is picking winners while ignoring regional Australia, small businesses, and manufacturing.

Australia is in this position because Net Zero ideology was prioritised over practical energy security.

Domestic oil production must be restored. We need to build new refineries, construct gas-to-petrol plants and establish a domestic gas reservation so Australia is never left vulnerable to foreign supply shocks again.

— March | Senate Speech

Transcript

Senator Roberts: The Fair Work Amendment (Fairer Fuel) Bill 2026 is a drop in the tank when it comes to managing the fuel crisis. The bill relates to road transport contract chain orders which used to be called delivery contracts. It allows those contracts between businesses and their trucking companies to be renegotiated as a result of this fuel crisis. Currently, that process takes 12 months or more. This bill may—’may’, not ‘will’—reduce the lead time on a contract renegotiation to a few weeks. 

The road freight industry is critical to the functioning of the economy. Everything in our supermarkets, hardware stores and shopping centres is trucked in. If trucks stop moving because the government failed to secure a supply of fuel, affordable diesel, then people starve; chemists, doctors, dentists and hospitals run out of supplies; casual employees and apprentices are put off work; and loans, rents and mortgages go into arrears. And it’s all downhill from there. It’s that simple. 

This bill amends legislation that Labor introduced in 2024 which created these road transport contract chain orders without any emergency provisions or the ability of the government to step in when the public interest is not being protected. This bill corrects the Albanese government’s lack of foresight and forethought. This government needs to slow down its conga line of poorly written bills—we’ve had so many—take the time to consult and stop using the committee system as a rubber stamp. Had it done that, these provisions would most likely have already been included. The problem with this bill is that it doesn’t actually relate to the current fuel crisis, yet it gives the minister powers to interfere in any RTCCO—road transport contractual chain order—it wishes for the rest of time. Powers are not subject to parliamentary scrutiny, and there’s no requirement to make an order introducing an emergency RTCCO through a legislative instrument. Power without accountability is always a very bad idea. Emergency powers exist for emergencies, not to tip the scale in favour of your union mates. 

One Nation will support this legislation. Given we have not had the time to prepare amendments to introduce checks and balances, One Nation will amend the bill when we take government. Our changes will require a declaration of emergency to be a legislative instrument setting out the reasons for the order and include a sunset clause, a trigger, so that, unlike what Labor is trying to do, measures do not extend past the end of the crisis. 

One Nation points out that, while the trucking industry deserves the help this bill may provide, so does the rest of Australia. Due to a doubling of fuel costs, farmers are struggling to fund their harvests. Farms’ fuel bills must be paid in 14 days, while farmers are not paid for their harvests for an average of two months. With fuel costs rising from, as in one case I was told about, $15,000 per week to $30,000 a week, there are massive extra amounts for family farms to bankroll themselves—and they can’t. Around Australia today, farmers are unable to plant their winter crops. The spring harvests will be down, and fuel prices will go up. The Labor government is hollowing out the bush again. It’s driving people into the cities, and it’s running the fuel crisis to push that objective. 

If the government had the best interests of Australia at heart, it would have already invoked the Liquid Fuel Emergency Act 1984. The act enables the Commonwealth government to prepare for and respond to severe shortages of crude oil and refined liquid fuels such as petrol, diesel and jet fuel. It supports Australia’s obligations under the International Energy Agency agreement and emphasises cooperative responses with industries, states and territories. It provides strong ministerial powers as a last resort if market mechanisms are insufficient. The act requires the minister to be satisfied that there is or is likely to be a serious shortage of liquid fuels with national implications that cannot be adequately addressed without using this bill’s special powers. Powers include directing industry-held stocks of crude oil and liquid fuel, such as requiring companies to maintain, purchase or release specified reserves at certain locations and, secondly, regulating fuel sales and distribution across Australia, including bulk-supply restrictions and retail rationing. This legislation is there, and it should have been invoked weeks ago. This is day 32 of the Iran conflict—32 days for the Prime Minister and his ministers to stop the selfies and cringy TikTok videos and address the real crisis; 32 days of horror for the economy, the devastation of which will ensure the ALP do not form government again. 

Let me explain what’s going on here. These powers require the minister to do certain things. One of those things would be to force foreign multinational oil companies to direct the fuel they’re currently hoarding and supply some into the spot market. This is the market which supplies smaller outlets, especially in rural and regional areas. These are the outlets that suppliers are currently charging way over the odds for their petrol, causing price spikes. Then, once they’ve driven price spikes in the regions, the city outlets that those same multinational fuel companies own themselves put up prices to match prices imposed on the bush. The outcome is price gouging. It’s calculated, and it’s deliberate. The government rammed through legislation last week to increase the fines for doing exactly that, but it will take years before the ACCC’s legal action against multinational fuel companies gets through the courts. They’ll get a rap on the knuckles and agree to a small fine, banking windfall profits and most likely doing it all again. The Albanese Labor government is once again proving it’s the best friend of foreign multinationals and no friend of everyday Australians. 

The Fair Work Amendment (Fairer Fuel) Bill 2026 will result in transport charges rising—and that’s the point of the bill. Before the crisis, getting a tonne of produce to market cost $100. With the fuel shock, it’s now $175. This legislation will drive that price even higher. This isn’t the government helping the trucking industry; it’s the government making the rest of the economy pay more to help the trucking industry. Food will be dearer. Clothing will be dearer. Consumers will pay. The answer is to reduce the price of fuel, not force up the price of freight. 

Last Friday, the National Road Transport Association, NatRoad, published comments critical of the legislation, pointing out: 

“… most small to medium operators simply could not survive until Fair Work Changes flowed through.“

Here’s another quote: 

“… recent announcements, including emergency Fair Work Commission powers and moves toward better fuel monitoring failed to address the immediate needs of industry.…

NatRoad is calling on the Federal Government to urgently implement three … measures to keep trucks on the road and prevent further economic disruption: 

  • Activate emergency financial support payments for affected transport businesses 
  • Introduce a six-month moratorium on heavy vehicle equipment loan repayments through lender hardship arrangements 
  • Immediately remove the Road User Charge for heavy vehicles”

The national road user charge is a tax of 32.5c per litre of diesel. Operators claim back the fuel levy of 52c per litre and then pay the road user charge. One Nation calls on the government to suspend the road user charge for heavy vehicles for as long as this crisis continues. Taking out the fuel duty and the GST will make a large difference to trucking industry cash flows and their ability to get through this crisis—and reduce grocery bills. Invoking the Liquid Fuel Emergency Act 1984 to stop multinational fuel companies profiteering will reduce fuel prices and reduce the need for freight charges to rise. 

The truth is that every sector in the economy is in need of assistance. The knock-on from extreme fuel prices extends right through the economy. Trucking has the potential to impact everyday Australians—and every Australian—and more quickly than other sectors, so it deserves first attention. We see no problem in that. My objection is that the Labor government is picking winners, helping some but not others based on its radical communist ideology. Labor says to small business, ‘No assistance for you’; to manufacturing, ‘No assistance for you’; to farmers, ‘Definitely no assistance for you lot’; to rail transport and ports, ‘No assistance for you’; to Defence, ‘No fuel for you.’ 

The Albanese Marles government refused the request from President Trump to participate in international efforts to make safe the Strait of Hormuz so Australian bound fuel tankers can get through to Singapore or South Korea to refine our petrol for us. This raises the question: Australia doesn’t have a defence strategic liquid fuel reserve, so just how much fuel do our armed forces actually have? And why did the Navy ponce around in Exercise Kakadu Fleet Review last week? This wasn’t a training exercise; this was to show off. From where did those boats come, to where are they returning, and how much fuel was wasted for a photo op in the middle of a fuel crisis? Fair dinkum! The Navy has now caught the selfie virus. Heaven help us. 

The Albanese government snubbed the President of the United States, our greatest ally, while grovelling on hands and knees to him for fuel. ‘Please, sir,’ the Prime Minister pleads, ‘can we please have some of your oil reserve, as we sold ours off for a quick buck?’ The Albanese Labor government is a dishonest national disgrace. How did you not see this coming? One Nation have been banging on about the need for restoring oil production and increasing our domestic reserve since 2020—and about fuel security since 2016. 

Now, I know social media is circulating a Liberal Party meme claiming that One Nation voted against giving subsidies to the Kwinana and Altona refineries in 2020 to keep them in production. Let me address that first, with a history of closures. Port Stanvac closed under the Howard Liberal government in 2003. Clyde closed under the Gillard Labor government in 2012. Kurnell closed under the Liberals and Nationals in 2014. Bulwer Island closed under the Liberals and Nationals in 2015. Kwinana closed under the Liberal and Nationals in 2021. Altona closed under the Liberals and Nationals in 2021. Now, the meme circulated says that One Nation voted against the fuel security package in 2021, which we did. What the meme does not tell you the bill we opposed was a stunt. BP and Exxon had already announced the closure before the bill was ever written. The Liberal-National government designed the bill to pretend to the public in the 2022 election that the Liberals cared about fuel refining—all to look good, not do good. Exxon and BP never received the money. They knocked it back because plans for closure were underway, and $2.3 billion wasn’t enough to change their minds. So what did we vote against? Nothing—a Liberal Party con, a fraud on the voters. I’m so pleased the Liberals dug that one up though; it shows they haven’t changed. 

By the way, I remind people that Pauline Hanson said: ‘Why are we handing over money? We need equity.’ No, the Liberals didn’t want equity. Just hand over the cash. In her speech in the Liberals’ 2021 bail-out bill, Senator Pauline Hanson called on the government to use that money to buy those refineries and put them into the hands of Australian people to maintain our domestic refining capacity. Of course, the Liberals and the Nationals ignored that request. 

Let’s be clear. Australia is in this mess because the Liberal Party, the National Party, the Greens, the Teals and the Labor Party all still believe in climate change. I tested that last week with my amendment to the appropriation bills that called for the net zero spending to be removed from the budget. Their vote on our amendment is damning. Labor opposed. Liberals opposed. Nationals opposed. Greens opposed. Teal David Pocock opposed. These parties all support giving away another $9 billion to climate prostitutes feeding off the UN net zero scam—parasites killing Australia’s energy and economy. So, of course, they’re not going to do anything to help the petrol and diesel industry. This government is making a horrible mess of the fuel crisis because it’s making decisions based on ideology not practicality—on a scam and contrary to the hard, empirical scientific data. And the globalist Liberals and Nationals are right there with them. Shame on you all! 

We need to drill for oil; restore production in the known deposits—and we’ve got plenty; get started building new refineries; and, in particular, build new gas to petrol plants to use Australia’s cheap, natural gas to make our own petrol again. One Nation introduced legislation for a domestic gas reservation to provide the gas we need for that, and of course the uniparty voted it down. When will people realise these tired old parties love their ideology and their donors and hate anyone who doesn’t agree with their ideology or with their donors? One Nation cares about everyday Australians, and that’s why we’re surging in the polls. It’s not about patriotism or nationalism. Our surge is the public realising that the old parties do not have their backs and One Nation does. 

To remind the Senate, One Nation has already called for the removal of the fuel excise and a three-month moratorium on GST on liquid fuels. Taken together, they will reduce fuel prices outside the trucking industry by 75 cents a litre—a real benefit for everyday Australians. The government has refused to take that measure, even while Treasury is making out like bandits raking in hundreds of millions of dollars each month in additional GST payments on crazy-high fuel prices. I haven’t heard a state premier complain about that either, as they benefit from the GST. The states must be held to account, as well, for their greed. 

Everyday Australians are filling up their vehicle in terror and, yes, in anger at the Albanese government’s greed and arrogance and distance. It’s $100 to fill a small car and up to $200 to fill a family car in the most energy-rich nation on Earth. The biggest exporter of hydrocarbons in the world is Australia. Groceries will go unbought; that’s if they’re available. Clothing and homeware stores are already reporting slow-downs. Your children won’t get those new clothes, new shoes or quality groceries, because their parents are having to pay for the stupidity, the arrogance, the dishonesty, the deceit and the greed of the Chalmers-Albanese Labor government. I foreshadow One Nation’s second reading amendment on sheet 3747. 

I’m pleased the government sees the fuel crisis is real. When we mentioned it first, One Nation were called far right extremists for labelling it. I’m pleased the government sees the regional crisis is now real. Again, One Nation called it first because we listen. Suspend fuel taxes now!

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Legalised Wage Theft

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Once again, I am calling out Fair Work officials.

This time it is for the blatant contradiction between their own statements and the Ombudsman’s findings.

I pushed Mr Furlong to reaffirm that enterprise agreements cannot legally undercut award entitlements — then confronted him with written evidence from the Ombudsman claiming the exact opposite, that an enterprise agreement “overrides” the Black Coal Award.

I pressed further, pointing to the Penny Vickers case to show this pattern isn’t new. Unions and big businesses have used enterprise agreements to “legalise” underpayment before, and only whistleblowers exposed it.

Despite every attempt to deflect, the failure is undeniable. The Fair Work system has allowed wage theft before, it’s allowing it again, and regulators refuse to confront it.

I won’t let them hide behind the process.

Transcript

Senator ROBERTS: Thank you, Chair. Thank you, Mr Furlong, and your colleagues for being here and minister. 

Senator Watt: It’s great to see you again, Senator Roberts. 

Senator ROBERTS: Same here, Minister Watt. 

Senator Watt: We spent a lot of time together last week. 

Senator ROBERTS: Mr Furlong, on 9 November 2022, I asked you a question in Senate estimates, specifically: 

Can an enterprise agreement remove the entitlements that the Fair Work Act and the National Employment Standards provide employees? 
 
You replied simply, ‘No.’ Clear. So you recall this? Now you are aware, I believe, that the Fair Work Ombudsman has been investigating allegations of the underpayment of coal workers where the enterprise agreements have underpaid in comparison to the black coal industry award. Are you aware of that?  

Mr Furlong: I am broadly aware that they were conducting an operation in relation to that, yes.  

Senator ROBERTS: I’m not asking to put you on the spot for the verdict.  

Mr Furlong: Very broadly, I understand it.  

Senator ROBERTS: You are aware. You answered. The ombudsman has recently completed a number of investigations. I will quote from one of those investigations where the ombudsman has stated in writing to the coal worker who lodged the complaint: ‘As the Fair Work Ombudsman has determined that’—the named person’s—’terms and conditions are governed by the’—named labour hire enterprise agreement—’we do not consider that the Black Coal Mining Industry Award 2010 applied’—to the named person’s employment. ‘Consequently’—the named person’s—’wages and entitlements during the relevant period should not be derived from the award but from’—the named labour hire enterprise agreement. Would you agree that on the surface and to an everyday person the Fair Work Ombudsman’s statement that an enterprise agreement overrides the award seems to be in contradiction to your statement that the fair work requirements—in this case, the award—override the EA?  

Mr Furlong: I think that they’re actually perfectly consistent. An award will persist unless there is an enterprise agreement that is in place for a workplace. But an enterprise agreement, in terms of the minimum hourly rate of pay, can’t be less than what is stipulated in the underpinning modern award.  

Senator ROBERTS: Thank you. That’s what I was looking for. Are you aware of the SDA case involving Penny Vickers?  

Mr Furlong: It’s been such a long time since I’ve looked at that case.  

Senator ROBERTS: Let me refresh your memory. In 2016, Penny Vickers, a shelf-filler at the giant supermarket chain Coles, exposed huge underpayments of Coles workers. The underpayments occurred because the union, the Shop, Distributive and Allied Employees’ Association, had signed an enterprise bargaining agreement with Coles that ‘legalised’ the underpayment. The independent umpire, the Fair Work Commission, had authorised the agreement which gave it legal cover. Are you aware of that?  

Mr Furlong: Yes, I’m aware of the circumstances broadly.  

Senator ROBERTS: The union and big business did a deal. The deal enabled Coles to pay workers less than they should have been paid when they worked on weekends. Penny Vickers took on the union and big business giants and successfully had the underpayment deal overturned in the Fair Work Commission. Are you aware of that?  

Mr Furlong: Yes, I am.  

Senator ROBERTS: And it was not just Coles. I initially thought it had been just Coles. It was not just Coles that had been in on the union deal. Other huge retailers were also in on the deal, including Woolworths, Bunnings, Target, Kmart, Big W and others. Are you aware of that?  

Mr Furlong: No. I’m interested to know—and Mr Corcoran might be able to assist you with this—if the application that was brought to the commission was post the nominal expiry date. Mr Corcoran, can you remember the circumstances of the case?  

Mr Corcoran: Not completely, but I think it might have been within the nominal expiry date of the agreement.  

Senator ROBERTS: Media reports suggest that, by themselves, just three of these big businesses were underpaying workers by around $150 million a year back in 2016. Are you aware this is extreme wage theft well beyond payroll errors?  

Mr Furlong: It’s been such a long time since I’ve looked at that or reviewed that decision. I don’t feel like I can reasonably respond to these questions without going back and reading the decision closely.  

Senator ROBERTS: This was, of course, a huge scandal that sent shock waves through the retail sector in particular—I can remember it was in the papers once it got exposed—and forced the rewriting of retail enterprise agreements almost across the board. Yet, if it hadn’t been for the tenacity and persistence of one person, Penny Vickers, and of the media, including, I believe, Judith Sloan and Rob Gottliebsen, the underpayments would never have been exposed. Mr Furlong, I put it to you that the Fair Work Act has failed. Doesn’t it need to be replaced with a system that protects workers, protects small businesses and protects the primacy of the employer- 

employee relationship instead of protecting the IR club at the cost and harm of workers and the cost and harm of small businesses?  

Mr Furlong: As you’re aware, Senator, my role doesn’t extend to matters of policy. Those questions should be addressed to the department in the normal course of things.  

Senator Watt: Senator Roberts, I caught the tail end of your question. I’m happy to have a go at answering it if you’d like to put it to me again.  

Senator ROBERTS: The Fair Work Act has failed. It’s been needlessly complex over many, many years. It’s not understood by workers. It’s not understood by small business. It’s not understood by many employers without a lawyer. Doesn’t it need to be replaced with a system that protects workers, protects small businesses and protects the primacy of the employer-employee relationship instead of protecting the IR club at the cost and harm of workers and of small businesses?  

Senator Watt: I, of course, have a different view about the Fair Work Act, especially after the reforms that our government has undertaken. It’s very clear that, due to the reforms our government has put in place to the Fair Work Act, wages are rising, more agreements are being reached between workers and their employers and industrial action is lower than it was under the coalition. So, in a range of ways, I think that the Fair Work Act has been very successful for Australian workplaces. I know you and your colleagues from One Nation voted against those reforms. I did note, Senator Roberts, on the weekend, the interview with Senator Hanson, where she didn’t support an increase to the minimum wage. Is that a general One Nation position?  

Senator ROBERTS: Workers are going backwards. The cost of living is rising faster than wages. Workers are going backwards under your government.  

Senator Watt: Actually, I don’t know if you saw this, Senator Roberts, but just today the Fair Work Commission handed down its decision in the annual wage case, which granted a pay rise for the lowest paid workers in the community of 4.75 per cent, which is ahead of inflation. Senator Hanson on the weekend said that she didn’t support an increase to the minimum wage, so I presume that means One Nation doesn’t support that pay rise.  

Senator ROBERTS: The Fair Work Commission has made its decision.  

Senator Watt: But it sounds like your party didn’t support that.  

Senator ROBERTS: Let’s move back to Mr Furlong. I’ve asked this question once. Having listened to me talk about Penny Vickers and the illegal enterprise agreement that was reversed, would you agree that, on the surface and to an everyday person, the Fair Work Ombudsman statement that I talked about, with the black coal mining industry award, that an enterprise agreement overrides the award seems to be in contradiction to your statement that the Fair Work requires, in this case, that the award override the enterprise agreement?  

Mr Furlong: I haven’t seen the Fair Work Ombudsman correspondence that you’re referring to.  

Senator ROBERTS: I read you quotes.  

Mr Furlong: But I haven’t seen it. I haven’t had the chance to review it.  

Senator ROBERTS: Would you undertake then, Mr Furlong, to make inquiries of the Fair Work Ombudsman as to why they have taken that view and whether the view is right or wrong and report back to me on this question on notice?  

Mr Furlong: I’ll certainly take up the opportunity to read the correspondence, but, in terms of my role at the commission, I’m required to support the president in the efficient operation of the tribunal. I have two statutory roles. I can certainly look at it and read it, but I’m not too sure what statutory power I could rely on to actually make any sort of commentary around whether or not the provisions of the act have been complied with in these circumstances.  

Senator ROBERTS: Thank you, Mr Furlong.  

CHAIR: Are you ready for me to rotate?  

Senator ROBERTS: Yes. 

———————————————————————————————————————————— 
 
CHAIR: I’m going to go to Senator Roberts—to give you a moment to see if that’s possible. I’ll come back to you after that. Senator Roberts.  

Senator ROBERTS: Mr Furlong, I’ve got a constituent who wants to ask you a question, so I’m going to ask it for them. You’ll probably have to take it on notice, because I don’t think you’ll know the answer off the top of your head, based on what you said earlier. Section 134(1) of the Fair Work Act provides:  

FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions …  

The use of the term ‘must’ imposes a mandatory legal obligation on the commission. My question is: does the commission have the liberty to bypass, dilute or ignore this statutory duty?  

Mr Furlong: I’m happy to provide a detailed response on notice. We—  

Senator ROBERTS: Thank you. 

/2 Comments/by

Thousands of Miners Underpaid for Years

,

During the June Estimates sessions, I exposed a regulator unwilling to confront the obvious – thousands of coal miners have been underpaid for years while the Fair Work Ombudsman hides behind outdated enterprise agreements and technical excuses.

Miners provided evidence and the regulator ignored it. Awards required permanency and enterprise agreements undermined it. Australia’s largest wage-theft scandal, affecting an estimated 5,000 workers, continues because no one in authority will confront it.

This session laid bare a system that has failed miners, failed the award, and failed it’s statutory duty to uphold a fair minimum safety net.

If the system won’t protect workers, someone has to call it out.

One Nation will always call it out.

Transcript

Senator ROBERTS: Thank you for appearing again, Ms Booth.  

Ms Booth: Thank you, Senator Roberts.  

Senator ROBERTS: Would you agree, as a matter of principle and community expectation, that no worker in Australia should be paid less than that required under a relevant award that applies to the worker?  

Ms Booth: What I would say is that all workers in Australia should be paid their legal entitlements.  

Senator ROBERTS: Mr Furlong had no trouble in confirming what I just said—twice. Are you familiar, Ms Booth, with the 2016 case where the Fair Work Commission found that an enterprise agreement between the Shop, Distributive and Allied Employees’ Association and Coles was invalid because the enterprise agreement paid below the award?  

Ms Booth: I’m not personally familiar with that case, but we can take questions on notice about it and its relevance to the FWO activities, if you wish.  

Senator ROBERTS: Thank you. Would you agree that this ruling of the SDA sets a clear legal precedent that any enterprise agreement that pays below the award, even when the Fair Work Commission endorses such an enterprise agreement, is invalid?  

Ms Booth: Since I’m not familiar with the case, I wouldn’t comment on it. Ms Volzke might be familiar with it and might be able to give you further insight.  

Ms Volzke: I think we’ve discussed at previous Senate estimates hearings that the Fair Work Commission applies the better off overall all test, or BOOT, in determining whether or not an agreement can be approved, and, so long as it passes that test, that agreement will be approved.  

Senator ROBERTS: I will ask it again, Ms Volzke. Would you agree that this ruling sets a clear precedent that any enterprise agreement that pays below the award, doesn’t meet the BOOT, even when the Fair Work Commission endorses it, is invalid?  

Ms Volzke: At previous estimates, we’ve also spoken about the mechanisms that might be available to an aggrieved party if they wish to seek to set aside an enterprise agreement, and that would usually be one of the parties that is a party to that agreement.  

Senator ROBERTS: I noticed that you didn’t agree or disagree. I’ve repeatedly raised with the Fair Work Ombudsman the situation of casually engaged coal workers subject to the black coal mining industry award being paid less than the casualised award rate when employed by labour hire companies utilising enterprise agreements. We’ve previously discussed that a quantity of cases with specific details have been referred to the Fair Work Ombudsman and the Fair Work Ombudsman has investigated. Can you tell me how many individual investigations have been completed?  

Ms Booth: As you know, Senator Roberts, a number of investigations are underway. Mr Ronson is in charge of that, and we’ll ask Mr Ronson to come up and give you a report on our progress.  

Senator Watt: While Mr Ronson is coming up, Senator Roberts, you are absolutely right that you have raised these issues a number of times at estimates, and every time I have reminded you that the One Nation party voted against our same job, same pay laws, which were designed to fix this problem.  

Senator ROBERTS: Because those laws were designed to cover up the problem.  

Senator Watt: No, they weren’t.  

Senator ROBERTS: They were designed to cover up. We mentioned it at the time, in the Senate.  

Senator Watt: Can you point out to me the section of the act that covers up this?  

CHAIR: This is a debate at another time. Mr Ronson.  

Mr Ronson: What I can confirm is that, in our black coal mining investigation, we’re about two-thirds of the way through, so we’re in the home stretch. The figures I can give you are these. Since we commenced this activity, we’ve investigated 56 cases and we’ve finalised 35, and, since I last provided evidence to this committee, we have received six new cases. We finalised 18 cases since our last update. Importantly—and I think this is relevant to the particular cohort of workers you’ve been interested in—we’ve now issued preliminary finding letters to all the workers represented by the Independent Workers Union of Australia. They have all our preliminary findings, whereby they’ve been given an opportunity to review those letters and findings, and, if they have any additional or new evidence or they disagree or confirm the findings, they have an opportunity to make submissions to us, as do the other parties.  

Senator ROBERTS: Is that a secure mechanism?  

Mr Ronson: They’ve got an opportunity to say ‘you’ve got this right,’ or ‘you’ve got this wrong,’ or ‘we agree with you’ or ‘you’ve missed that.’ But these are at quite an advanced stage, and so we’re confident that, within the next month or two, we should have finalised nearly all investigations.  

Senator ROBERTS: What’s the total number of complaints you’ve received? The total number is still outstanding.  

Mr Ronson: There are 21 cases outstanding, but, since we began this discrete activity, it’s 56 investigations, and 35 finalised.  

Senator ROBERTS: Plus six new.  

Mr Ronson: Since I last gave evidence, there have been six new ones. But we haven’t had a new case since February.  

Senator ROBERTS: I’ve received feedback on a number of completed Fair Work Ombudsman investigations from coalminers that have been affected. The Fair Work Ombudsman seems to be consistent in saying, ‘As the Fair Work Ombudsman has determined that’—the named person—’terms and conditions are governed by’ the named labour higher enterprise agreement, ‘we do not consider that the black coal mining industry award 2010 applied to the person named.’  

Mr Ronson: Yes.  

Senator ROBERTS: And, ‘Consequently,’ the Fair Work Ombudsman says, the named persons’ ‘wages and entitlements during the relevant period should not be derived from the award,’ but rather the named labour hire enterprise agreement. In light of the rulings in relation to the SDA case of 2016 and the Fair Work Commission general manager, why does the Fair Work Ombudsman now take the view that paying a worker less than the award is justifiable if the worker is being paid under a certified EA? On what legal basis does the Fair Work Ombudsman justify this?  

Ms Booth: I think we’re going to hear from Ms Volzke again, and it will traverse the same topic, and that is the legal framework within which we operate, and our job is to assess whether or not that framework has been breached. Perhaps Ms Volzke will elaborate again for you.  

Ms Volzke: I can’t talk to all of those outcomes of those investigations, but, thematically, and with a lot of those historical complaints also, we took the approach of assessing the situation where the agreement might apply, which was our view, but also, in the event that the agreement didn’t apply, we also looked at the situation of whether the underlying award might be relevant. In that case, as we’ve spoken about in previous estimates hearings, the legal consequences can be unclear as to whether or not that particular employee might have received an underpayment under the award anyway. That’s because, as you know, the black coal mining award doesn’t provide for casual employees in operational roles.  

Senator ROBERTS: There are a number of things there that I’m going to come back to. In relation to the actual comparing of paid rates, one assessment by the Fair Work Ombudsman that I’ve seen compares full-time rates under the award with casual rates under the enterprise agreement. The data provided by the Fair Work Ombudsman quotes the following rates and labels: contract rate per hour, $46.50. What’s the contract rate per hour?  

Mr Ronson: In those findings, what that would mean is the payment that employee would have received, so this would be a contract rate under a common law contract of employment. In that situation, you’ve got your common law contract of employment, but then there are also minimum entitlements in this country, informed by either an award or an enterprise agreement. But that contract rate would have been the rate that employee received.  

Senator ROBERTS: Sure. Then there is the award minimum rate, $21.97—these are your classifications.  

Mr Ronson: Yes, that would have been either a relevant agreement rate—  

Senator ROBERTS: This is award minimum rate.  

Mr Ronson: Or an award rate, at the time. This could be back in 2017 or 2018. Some of these cases have gone back years.  

Senator ROBERTS: The enterprise bargaining agreement 2012 minimum rate is $23.10.  

Mr Ronson: Again, that would have been the lawful minimum entitlement at that time in that particular situation for that worker.  

Senator ROBERTS: These are your figures again: named enterprise bargaining agreement 2012, casual rate, $28.88.  

Mr Ronson: That’s right. What Ms Volzke has been explaining is that the peculiarity of this whole sector is that enterprise agreements provide for casual rates because it’s been approved by the Fair Work Commission, but the black coal award doesn’t provide for casual production employees. This is the whole peculiarity of this sector.  

Senator ROBERTS: So these quoted rates omit important information and should in fact read as follows, in our opinion, based on the rates easily accessible under the award. Your award minimum rate should be the award minimum rate without entitlements. It’s the same figure, $21.97.  

Mr Ronson: I’m just presuming that, in that particular case, because there’s no casual provision in the award, we’re at a loss. We can’t confect one. There is no such thing. This is the very odd nature. So we’re reliant upon that contractual rate that they received.  

Senator ROBERTS: So the award has a rate plus entitlements, and what you’re doing is forgetting the entitlements and just taking the rate, even though the casuals should be paid a loading for all of those entitlements.  

Mr Ronson: No, I would imagine that, in those cases, there would be an enterprise agreement that would be at play.  

Ms Volzke: Because the award provides for the full-time rate, but the casual rate isn’t derived from the award. It can be the from the agreement, but also, potentially, if there is no agreement, it may well be that those particular employees are actually award and agreement-free, which would mean they would be covered by the national minimum wage.  

Senator ROBERTS: That’s the first time I’ve heard that one.  

Mr Ronson: It’s case by case. There are 56 cases. There will be nuances and changes on each one, but typically, for the cohort that has the historical complaints, it’s pretty much the same. It’s the same issue that you’ve been advocating for, agitating for, for some time.  

Senator ROBERTS: So let me add another one: award, notional, casualised rate. That comes to $50.01. Remember that figure. Then, where you’ve got named EBA 2012, minimum rate, we’ve added ‘without entitlements.’ What you’re doing is taking a minimum rate, stripping away the entitlements, not even counting them, and you’re saying that’s the case because—what was it, Ms Volzke?  

Ms Volzke: If there is an enterprise agreement that has been approved by the Fair Work Commission, then that displaces anything that might have otherwise applied in the underlying award, and then the employment conditions are what’s in the agreement. If there is no underlying agreement, you cannot extrapolate the full-time provisions in the award to casuals because, as Mr Ronson has already said, in those production roles, there is no classification for casual employees.  

Senator ROBERTS: Are you telling me, Ms Volzke, that, if the minimum rate is the same in the award and the enterprise agreement, because there’s no casual, the casual worker misses out entirely on all the other entitlements? Isn’t that paying less than the enterprise agreement, by a long, long way?  

Ms Volzke: No. For an agreement to be approved by the Fair Work Commission, the Fair Work Commission must be satisfied that the agreement passes the BOOT, the better off overall test. That will obviously depend on the particular matter and agreement that’s before it. I am only talking at a high level. I won’t make any particular conclusions about specific case examples, but that is the general principle—and, where the agreement has been validly approved, the conditions of employment are derived therein.  

Mr Ronson: What Ms Volzke is saying is that, where the agreement is in play—and that’s mostly the cases that you’re aware of—the agreement knocks out the award; the agreement trumps, in terms of the industrial instrument that informs the rates. But what I can tell you is that—  

Senator ROBERTS: The enterprise agreement, even if it’s inferior to the award, trumps the award.  

Mr Ronson: If it’s a lawful agreement, it trumps, yes; it displaces the award.  

Senator ROBERTS: It can’t be lawful, but we’ll come back to that.  

Mr Ronson: Okay. What I can say is that this is one of the reasons we were very careful to set out our findings very carefully and provide the parties with opportunities to see whether we’ve got anything wrong—and I can confirm that we’ve received no significant evidence that will alter the findings that we’ve made. It might not be the outcome that the employee wants, but it is the application of the law.  

Senator ROBERTS: That is, the named casual worker should have been paid a minimum of $50.01 per hour for the period. On evidence in pay slips supplied to the Fair Work Ombudsman, the named worker was paid $39.55 per hour. That’s less than your contract rate.  

Mr Ronson: Correct, but—  

Senator ROBERTS: All entitlements wiped.  

Mr Ronson: I don’t have that case in front of me, but that case would have been based upon what is the minimum entitlement that applies to this worker in this period, at this time and at this site, and that’s how we would have done the calculations and worked out whether there was a financial injury.  

Senator ROBERTS: The named labour hire EBA rates that the Fair Work Ombudsman quotes omit requirements for entitlements and in this respect are arguably misleading as to the truth. The rate actually paid is less than the award, less than your contract rate and less than the award notional casualised rate. How could the Fair Work Ombudsman get such basic information so wrong?  

Mr Ronson: What I’m trying to say is: out of all the preliminary findings we’ve issued, we’ve had no evidence received in response from parties that would impact or alter our findings. It may not be the outcome that people want, but it is the correct application of the law, in our view.  

CHAIR: Senator Roberts, at the start of your questions, I asked each senator to keep their questions to 15 minutes. We’ve now gone over that time.  

Senator ROBERTS: Can I have one question, and then I’ll hand over the call.  

CHAIR: Yes, thank you.  

Senator ROBERTS: And then I’d like another block. The miner supplied the Fair Work Ombudsman with all his pay slips. What period did the Fair Work Ombudsman consider in assessing the worker’s complaint—one year or the whole period of underpayment?  

Mr Ronson: The whole period.  

Senator ROBERTS: Thank you. I’ll come back.

Trancript

Senator ROBERTS: I will return to my questioning. Ms Booth, I refer to the Fair Work Ombudsman’s decision in relation to the miner, appendix C in this case, clause 9, which says, ‘No time or wage records were available during the relevant period.’ From whom?  

Ms Booth: That would be a detail in relation to a particular investigation that I wouldn’t have visibility of. Mr Ronson, do you?  

Mr Ronson: I’m going to presume, but correct me if I’m wrong, that the case that you’ve got in front of you probably relates to the 14 cases represented by the Independent Workers’ Union of Australia. 10 of those cases remain ongoing, so preliminary findings have been issued. From what you have just put, it looks like that’s an attachment to the preliminary findings, which gives an opportunity for the worker and the employer to respond if there’s any contradiction. Your question was about time and wage records not being available. That would be from either party. I’m not sure what particular period or history this is, but it may be that there were no timely wage records available.  

Senator ROBERTS: I’m advised that the miner supplied his pay-slips and the Fair Work Ombudsman had the miner’s total hours and pay and could calculate the overall hourly rate. So it’s not from the miner. 

Mr Ronson: Okay. If there’s a concern, this is the opportunity to put this evidence to us if there’s something that we’ve missed. This is why we put the preliminary findings out, just in case there’s a question mark over what our findings are. We try to do our investigations to the best of our ability, to be as thorough as we can using the powers we have, but, if we’ve missed something and the parties have evidence, please provide it to us. This is exactly why this process has been undertaken.  

Senator ROBERTS: Thank you. Ms Booth, were you previously a Fair Work Commission member?  

Ms Booth: Yes, I was, from 2012 to 2020.  

Senator ROBERTS: Did any of the enterprise agreement applications you approved as a member include an enterprise agreement covering casual coal miners?  

Ms Booth: Of course, I would be relying on memory. I don’t recall any. Indeed, throughout my time at the Fair Work Commission I spent a lot of time being the national practice leader of what’s called the Collaborative Approaches Program now, which took me out into the field, and I was relieved of the obligation to approve enterprise agreements quite early on in my time in the commission. I couldn’t tell you which year that was but, for a large part of my time in the commission, I was relieved, very kindly by the President, of that obligation. I don’t recall any black coal cases, but the Fair Work Commission website still has every single decision that I have ever made under my name, and it can be examined to see whether or not any of those enterprise agreements fell within my purview.  

Senator ROBERTS: Did you ever check the BOOT?  

Ms Booth: When I did approve enterprise agreements, yes. Indeed, in the early part of my time in the Fair Work Commission, a member was required to do that personally. Then, as I went on towards 2020, the administrative support was provided and a BOOT report was provided to each member from the administrative staff to aid our examination of an enterprise agreement.  

Senator ROBERTS: Thank you. I want to go to section 134(1) of the Fair Work Act, which provides, The Fair Work Commission must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions.’ The use of the term ‘must’ imposes, does it not, a mandatory legal obligation on the commission?  

Ms Booth: I’ll say two things about that. One might be asking Ms Volzke to comment on the provisions of the act. I’ve not got it in front of me. I will be careful not to provide evidence to the committee other than from my current role as the Fair Work Ombudsman. I was happy to answer your questions about the Fair Work Commission, but of course I no longer speak for the Fair Work Commission. What I would say about the modern award objective is that every member, myself included, would have given consideration to all the factors listed in section 134.  

Senator ROBERTS: Before you hand over to Ms Volzke, does the commission—because you’re investigating a commission decision, ultimately—have the liberty to bypass, dilute or ignore this statutory duty—’must … provide a fair and relevant minimum safety net of terms and conditions’.  

Ms Booth: The modern awards objective applies in certain circumstances, not every dispute and not every case, but, where it applies, it is my understanding that at the time I was a Fair Work Commission member I was obliged to weigh all the factors that were in the modern awards objective in any decision that I was making. I would refrain from saying anything more about what I did in those times, because my memory will be faulty and the Fair Work Commission is no longer my area of work.  

Senator ROBERTS: I wasn’t clear. I wasn’t referring to your time in the Fair Work Commission. I’m referring to the Fair Work Commission decisions in this case.  

Ms Booth: I think I’ve given you my answer.  

Senator ROBERTS: As I understand it, the Black Coal Mining Industry Award says that production workers must be permanent workers, permanent employees. How do you get over that condition in an enterprise agreement?  

Ms Volzke: I haven’t got the terms of the award in front of me, but it doesn’t provide for casual employment in those production roles. You will remember as well that, in Closing Loopholes, the same job, same pay audit provisions came in that ensured that labour hire workers—  

Senator ROBERTS: This happened well before that.  

Ms Volzke: Absolutely, but what I’m saying is that anomaly, in the way that you’ve described it, going forward has been closed. We’re talking about, in some circumstances, agreements that were approved many years ago. As the regulator, we must apply the law as it stands at the particular point in time, and that’s exactly what we’re doing. As we’ve spoken about previously as well, a number of these historical matters are outside our statutory time frame for being able to prosecute them, but we are doing our very best to investigate them irrespective of that. That’s what we’re undertaking to do. Mr Ronson has provided some details on that already, and we hope to have that wrapped up soon. I’m very satisfied that we’re doing the best that we can in the circumstances to apply the law to these particular cohorts of employees.  

Senator ROBERTS: I’m not. Whether it’s been legal, or negligence or deliberate, this is Australia’s largest wage theft scam, and it’s continuing—Australia’s largest wage theft. It’s widespread. We estimate that around 5,000 miners are still being screwed by this. Does that bother you?  

Ms Volzke: As I said, the closing loopholes legislation in 2023 closed that loophole. Going forward, that is what the law is now, but our statutory mandate is to apply the law as it applies at a particular point in time, and these are historical matters.  

Senator ROBERTS: Doesn’t the Fair Work Ombudsman’s decision endorse the breach of the Fair Work Act and what amounts to the Fair Work Commission’s endorsement of Australia’s largest wage theft due to collusions between union bosses and large global multinational employers, including an offshoot in Australia of the world’s largest labour hire firm, Recruit Holdings?  

Ms Volzke: As we’ve spoken about previously, if an agreement has been approved by the Fair Work Commission, then it is part of the legal framework that we must apply, and that is what we’ve done.  

CHAIR: Senator Roberts, as I indicated at the start of your block of questioning, as we have two senators seeking the call, we’re seeking to split the time, so that’s the conclusion of your block of questions.  

Senator ROBERTS: Thanks, Chair. 

/by

Protecting our Coal Miners

,

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. 

/1 Comment/by

EA Deal Cheats Workers

,

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.  

Senator ROBERTS: Thank you very much. 

/by

Rubber-Stamped Injustice

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The Fair Work Ombudsman, when considering 33 cases involving claims of underpayment among coal miners, stated that it was using an Enterprise Agreement (EA) as the base document. This EA is being challenged as invalid and void due to alleged fundamental deficiencies and fraud. The EA pays less than what comparable workers receive under the Award.

I challenged the Ombudsman’s office for betraying workers who were clearly being exploited by their employers, in collusion with the CFMEU. This exploitation was enabled by a highly questionable decision made by a Commissioner, who appeared not to have fully considered the Better Off Overall Test (BOOT) before approving the proposed, inadequate EA.

It appears the Commission can approve an EA “on the papers” when the union and employer are aligned, without a thorough examination of the agreement’s impact on workers.

— Senate Estimates | October 2025

Transcript

CHAIR: Great. Thank you very much. We’ll open with questions, then, and I’ll start the call with Senator ROBERTS.  

Senator ROBERTS: Thank you for appearing again tonight. We’re getting pretty familiar, Ms Booth.  

Ms Booth: Yes, Senator.  

Senator ROBERTS: My questions are pretty simple tonight. What is the total number of matters being investigated in the coal sector? I’m particularly interested in those matters that came out of the One Nation analysis, in which labour hire payments to coal workers were and are below what would be an award casualised rate, if such a thing existed—it doesn’t, but if it did. Can you confirm for me again how many matters are in that category? My recollection is that there were around 14 individuals.  

Ms Booth: As of 26 September this year, we had 33 cases under investigation and had finalised an additional 13 cases in the black coalmining industry. That is in Mr Campbell’s jurisdiction, so I will pass to him.  

Mr Campbell: I’ll obviously assist you with questioning on this subject. We have Steven Ronson here to assist with details as well, given the nature of your questions. We are happy to go into any detail you like.  

Senator ROBERTS: I’ll let you get on with resolving the cases and the complaints.  

Mr Campbell: That works for me.  

Senator ROBERTS: Good. Can you give me a rundown on the number and types of entities that have been consulted in relation to those matters—specifically the labour hire companies and the mine owners, perhaps—and what sort of feedback and cooperation you have received?  

Mr Ronson: Of those 33 cases that Ms Booth referred to, there are 25 employing entities. There are 25 different companies, if you like, that are being investigated.  

Senator ROBERTS: Ms Booth, can I come back to you: what was the total number you said?  

Ms Booth: There are 33 currently under investigation.  

Senator ROBERTS: Thirty-three? I thought you said three! Thank you. I know that the analysis we published states that there are large underpayments, based on a comparison to what would or should be a casualised award rate. But there’s a trick, because the coal award does not have casualised rates, as we’ve discussed at length. That being the case, are you investigating the matters and assessing whether underpayments have occurred compared to what would be a casual award rate if such a rate existed?  

Ms Volzke: As I think we’ve discussed on a number of occasions, these issues and some of the complexities arise in relation to the absence of casual operation rules under the award. What we’ve done is proceed on the basis of the information before us in determining what, if any, underpayments might be payable in relation to each of those matters that we’re investigating.  

Senator ROBERTS: What would be the base rates, so to speak, because you’re talking about casual?  

Ms Volzke: If there’s an enterprise agreement in operation in relation to a particular employee, then it would be the enterprise agreement that, notionally, we would be looking at. Obviously, if there weren’t one, there might be contracts of employment et cetera as well. It’s obviously going to depend on the particular circumstances. 

Senator ROBERTS: What I’m getting to is this: would you compare it with the base rate of permanent employees doing the same job and add 25 per cent to take into account a lack of other conditions of employment?  

Ms Volzke: As we’ve spoken about before, because the award doesn’t provide for that for those employees— who, I think, in that cohort, mostly had enterprise agreements relevant to their employment. That would be the document that we would look to test against any potential underpayments.  

Senator ROBERTS: So the enterprise agreement, which we think was not fair, would still be the base rate that you would compare it to?  

Ms Volzke: As we’ve spoken about previously, as the independent regulator, we apply the law as it stands. Where agreements have been made and approved by the Fair Work Commission as valid enterprise agreements, then those are the industrial instruments that we will use to determine any underpayments.  

Senator ROBERTS: If the Fair Work Commission has approved an enterprise agreement that is grossly underpaid compared to the award, you would go with the enterprise agreement.  

Ms Volzke: I can’t comment on the fairness or otherwise, but what I would say is that, where it has been lawfully made and is in operation for the particular period of time that might be in question for a particular employee. That’s the instrument that we test those underpayments against.  

Senator ROBERTS: Have you identified instances where labour hire casual employees have been paid below the full-time award rate? If so, that would clearly constitute underpayment.  

Mr Ronson: I’m not aware that that’s the case so far, but I’m happy to take that on notice just to double-check.  

Senator ROBERTS: Thank you. Ongoing underpayments is the next topic. Minister, we have been following the same job, same pay applications in the coal sector, which, on our observation is a very slow process. By the way, I led the development of same job, same pay in the Senate. Given that there are a significant number of coal operations not yet subject to the same job, same pay regime, One Nation would assess that there are still large numbers of casual labour hire coalminers that continue to be underpaid when compared with the casualised award rate. Would you concur with that assessment? I guess you would not.  

Mr Ronson: I think the best way of answering that question would be that what we’ve tried to do in the course of this investigation is heighten awareness of our investigation. We have a dedicated email address specifically for these cases alone, so that anyone who’s working in the sector, or has worked in the sector, can request our assistance. Yet, as we’ve explained, I suppose each case will fall on its own merits. We investigate each case as to what we find. We follow the evidence in that particular case.  

Senator ROBERTS: At the nub of this issue, from the very start, has been the claim by many casual coalminers—and I agree with them entirely; so do some experts in industrial relations—that the enterprise agreements under which they’re working are dodgy. They’re grossly under the award rates. But what you’re saying is that’s become the new benchmark. That’s what I got out of Ms Volzke and you.  

Mr Ronson: What we’re saying, as Ms Volzke put, is that we’ll apply the law as it is. If the enterprise agreement is in place for that particular worker, that’s what we apply.  

Senator ROBERTS: So you don’t look at the roots of the enterprise agreement—that it’s below the award rate with a lack of the casual premium.  

Mr Ronson: We will look to see whether the enterprise agreement has been approved by the Fair Work Commission. If it has, and if it’s a valid industrial instrument and it’s operative, we will apply it.  

Senator ROBERTS: So you won’t look into whether or not it passes the BOOT test? 

Mr Ronson: No.  

Senator ROBERTS: Given that the 33 matters we’re focused on, and that you’re investigating, are of coalminers who have worked across a range of labour hire companies in a range of mines, would it be fair to say that the numbers of labour hire coalminers who have potentially been underpaid is probably very significant—that is, that large numbers of coalminers worked, and are continuing to work, under exactly the industrial instruments of the individuals you are investigating? Our estimate is that the number would easily exceed 5,000, possibly 10,000. Would that be a reasonable guess?  

Ms Volzke: The premise of that question is something that we wouldn’t agree with, for the reasons that we’ve spoken about. Where there are enterprise agreements that applied and were validly approved by the commission, that is the document or instrument that we use to determine whether or not there have been underpayments. The other thing, and I know we’ve spoken about this previously, is that it’s not necessarily the case that, because the award doesn’t provide for operational casual roles, it means that a particular employee would therefore be full time. It might, for example, be that they are award free, in which case their entitlements are by reference to the national minimum wage, for example. Another outcome might be a technical breach of the award that doesn’t necessarily carry consequences. As we spoke about previously as well, the original 15A definition of casual employment that was inserted back in 2021, I think, applied with retrospective application, which was close to a designation approach to casual. It would capture many of the historical complainants in this particular cohort that we’re talking about.  

Senator ROBERTS: It seems to me that miners are not getting justice for a trick that was pulled on them by the mine owner, by the labour hire firm, which includes in one case an Australian offshoot of the world’s largest labour hire firm, Recruit Holdings from Japan, and by the mining division of the CFMEU, which is now back to being the Mining and Energy Union. You’re going to endorse it because they came up with a Fair Work Commission approved document.  

Ms Volzke: We’ve also spoken previously about who has standing to determine or challenge whether or not an agreement has been validly approved. It’s somebody who’s aggrieved by that, and that doesn’t extend to the Fair Work Ombudsman. Certainly it would be open to another party if they so wish to challenge that. 

Senator ROBERTS: Good luck getting a law case cheaply in this country. We’re aware that, in your investigations, the Fair Work Ombudsman has a six-year time restriction on being able to litigate to require compensation for underpayment. You’ve indicated, Ms Booth, in prior Senate estimates hearings that you have not restricted your investigations to the six-year limit but have gone back much further. Is that correct?  

Ms Booth: That is my recollection of the evidence we gave.  

Mr Campbell: That is correct.  

Senator ROBERTS: I think we’ve discussed in these hearings in the past that the underpayments that we have assessed occurred because of the absence of a casualised rate in the coal award. We’ve discussed that to some extent. I’d like to look at it from another angle. If your investigation finds the practical evidence that supports our analysis in the 33 matters that you are investigating, I assume that there may be legal difficulties in successfully prosecuting for compensation because of this legal trick, which is what I’m hearing now. It may be legally complex to have the courts agree that underpayments were illegal. Is it that underpaid casual labour hire coalminers are victims of a legal trick? Could that be a reasonable point of view?  

Mr Campbell: I don’t think that we’d come to that view. We wouldn’t make a decision around the enforcement outcome we’d seek to impose in a certain circumstance until the conclusion of the investigation. The statute of limitations we’ve talked about previously goes to enforcement by way of litigation, for example, but there are other ways that we can seek to resolve a historical matter, which is also something we’ve discussed before, where we’ve found evidence of that contravention or an enforceable entitlement. We haven’t got to that point in these matters, so it remains open to us to consider how we will resolve them.  

Senator ROBERTS: Would the Fair Work Ombudsman’s task of seeking compensation be more straightforward if legislation existed that resolved the legal trick? We refer to clarifying that casualised labour hire coalminers should be and should have been paid 25 per cent more than the full-time rate under the coal award. Yes or no—would legislation make it easier?  

Mr Campbell: I don’t think we’ve got an opinion on that.  

Ms Booth: I think you’re asking us, if the law were different, would we apply the different law?  

Senator ROBERTS: I’ll ask the minister. Minister, we congratulate the government on eventually requesting the Fair Work Ombudsman to investigate gross underpayments of casual labour hire coalminers. It’s taken about 6½ years. The investigations from the Fair Work Ombudsman to date appear to be heading in the direction where the underpayments that we assessed were occurring may be confirmed on the evidence of the cases being investigated by the Fair Work Ombudsman. Further it is likely, we believe, that any potential compensation may be legally difficult to enforce, which is what I’m hearing, because of a trick using enterprise agreements to get around the fact that the black coal mining industry award does not allow for a casual rate for comparative purposes. It’s our view that the most likely way to obtain justice for casualised labour hire coalminers would be to have legislation that resolves the legal trick we referred to, clarifying that casualised labour hire coalminers should be and should have been paid at least 25 per cent more than the full-time rate under the award. Assuming that the evidence from the Fair Work Ombudsman that supports the underpayment analysis is forthcoming, would the government be interested in considering such legislation for wage justice for these coalminers? If so, One Nation would be very keen to work with the government on such legislation and to lend our full support. Would the government consider that?  

Senator Walsh: The government has passed a suite of reforms to our workplace laws to get wages moving in this country, including the closing the loopholes legislation that established the same job, same pay principles and the secure jobs, better pay legislation. We’ve improved rights for casuals, we’ve reinvigorated bargaining, we’ve done a lot of work to close the gender pay gap and we’re really focused on improving the rights of Australians to be paid fairly for the work that they do. You’re referring to matters that I think are best addressed by the team that’s at the bench in terms of matters that the Fair Work Ombudsman has apparently been investigating.  

Senator ROBERTS: They’re not allowed to talk about policy and legislation. That’s what I’m asking.  

Senator Walsh: You referred, I think, in your question to a report that may be coming. Is that correct?  

Ms Booth: We haven’t concluded the investigation at this time.  

Senator ROBERTS: You talk about rights, Minister. When you look at the people on a dodgy enterprise agreement compared with those on the black coal mining industry award base rate plus 25 per cent casual loading, you see that this is clearly Australia’s largest wage theft case, and that means that workers have been betrayed. This has been signed off on by the Mining and Energy Union, or the CFMEU mining division, by the labour hire companies, including the largest in the world, by mine owners and by the Fair Work Commission. Workers have got no protection whatsoever. If this goes through, workers have got no protection. There are thousands of them in Central Queensland and the Hunter Valley. It’s blatant exploitation. Will the government step in, subject to the report?  

Senator Walsh: From a government perspective, it seems appropriate to wait for the report of the Fair Work Ombudsman and give it due consideration when the report’s concluded.  

Senator ROBERTS: Thank you 

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Australia’s Largest Wage Theft – Finally Acknowledged

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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. 

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Investigation into Wage Theft for Coal Miners in the Hunter

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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: Who are the others who can do that? 

Mr Ronson: Parties to an agreement. 

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. 

CHAIR: Thank you, Senator Roberts.

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Labor is Hiding Australia’s Largest Wage Theft

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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. 

Senator ROBERTS: Thank you. 

/by