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Fair Work Ombudsman Denies Responsibility for Enterprise Agreement Validity

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I enquired about the number of requests for assistance that had been sent to the Fair Work Ombudsman (FWO) and was informed that none had been received during that week, attributing this to potential delays in processing. They mentioned that their preferred method for addressing issues is via phone calls and stated they wouldn’t be establishing any new methods for submitting materials that exceed the current 1000 character limit.

Furthermore, the FWO made it clear that they wouldn’t be accepting responsibility for the validity of any enterprise agreement approved by the Fair Work Commission.

Transcript

Senator ROBERTS: Thank you for appearing again.  

Ms Booth: Senator.  

Senator ROBERTS: How many complaints has your office received about stolen wages from coalminers working for labour hire companies?  

Ms Booth: We may or may not be able to give you that information right now, but I cannot. My staff may be able to assist. Ms Volzke, do you have those numbers?  

Ms Volzke: I don’t have the exact number. The requests for assistance are low, but you know that we have had a number of formal investigations in relation to black coal mining employees.  

Senator ROBERTS: Ms Volzke, three requests for the Fair Work Ombudsman to investigate worker underpayment under the Black Coal Mining Industry Award were sent to your office recently.  

Ms Booth: We could ask Mr Scully if he has that information, as he’s the responsible person.  

Mr Scully: As for your first question, the information I have before me is that, with respect to disputes received from employees or participants in the coalmining industry, in the 2022-23 financial year there were nine; in this current financial year to the end of March there were six.  

Senator ROBERTS: Does that include the recent ones I have learned about?  

Mr Scully: Of the recent ones you are referring to, one was in October 2021, another was in April 2022 and another in June 2023. I understand that they would be included in those numbers.  

Senator ROBERTS: I have learned of three others that were submitted. The Independent Workers’ Union of Australia submitted, I am told, via email address, three requests for the Fair Work Ombudsman to investigate worker underpayment under the Black Coal Mining Industry Award, each of the three on behalf of an underpaid coalminer. That was in the last week.  

Ms Booth: We wouldn’t that have data available yet because it wouldn’t have reached the status of an investigation; they would have to be triaged first. So that will be for another Senate estimates.  

Ms Volzke: Senator, in relation to those most recent complaints, would I be able to ask about the date and time of the underpayments? Are we talking about historical, older underpayments?  

Senator ROBERTS: It varies. Some are over extended years. I can give you some information. The miners whose assessments have been completed have given approval for their data to be shared, with individual names withheld. I can give you their Fair Work Ombudsman reference numbers. One is coalminer Fair Work Ombudsman reference No. 3389142, years assessed 2013-18, and amount underpaid $121,000. That is for one man or maybe a woman; I know that there are women involved. Another is coalminer Fair Work Ombudsman reference No. 3380088, years assessed 2013-21, and underpayment assessed at $104,000. A further one is coalminer Fair Work Ombudsman reference No. 3380122; five years are listed, but he or she is still doing assessments for another three years, and the total there, so far, is $54,000, but it’s expected to top out at $85,000. These are not small amounts of money. My understanding is that many more miners are now applying for the Independent Workers Union of Australia to lodge complaints or, I think you call them, requests for investigation.  

Ms Booth: Requests for assistance.  

Ms Volzke: Senator, in relation to those matters, again, they traverse a period of time when we had the SAJER legislation passed, which was under the previous coalition government, and the Rossato decision; they sit over the top. Now we have the most recent legislation, and I think Minister Watt referred to one of those ‘same job same pay’ orders already having been made. All those matters that you raise still raise those core issues that we spoke about previously, when you and I met, I think, towards the beginning of last year, about the consequences of the black coal mining award not providing for casual employment. The statutory definition changes to casual employment that had retrospective effect—  

Senator ROBERTS: Have you seen their request for investigation?  

Ms Volzke: No. That’s just by the dates that you’ve given me; that’s all. Absolutely, we’ll look at those, but I’m saying that they traverse that same time period.  

Mr Scully: Senator, we call it a request for assistance and, as you’ve indicated, if they’ve come in recently, they will not have got to me or Mr Ronson, who is also with us today. We will find where they are in our system and the circumstances regarding the requests for assistance.  

Senator ROBERTS: Why are complainants limited to only 1,000 characters in their request for assistance or request for investigation—that’s about 130 words—in making a complaint about unfair work practices, including wage theft in the coalmining industry; why are they limited?  

Ms Booth: I would imagine that is in order to have both a website that’s capable of being properly hosted and information capable of being absorbed. The full extent of information that’s provided to the Fair Work Ombudsman is not contained in those characters. That’s a commencement process and, thereafter, individuals who have made those communications with us would be spoken to.  

Senator ROBERTS: Why does the Fair Work Ombudsman refuse to accept complaints that are more detailed than those that can fit within a 1,000-character limit? 

Ms Booth: The area of technology is in Mr Campbell‘s purview. This will be entirely a technological matter, I’m thinking. Mr Campbell, are you able to say anything about the number of characters in our communications form?  

Mr Campbell: I’m going to have to guess a little bit in my answer and I don’t like to do that in this forum. It depends on the channel through which the people you speak of have sought to engage with us. In certain channels we do have limited fields for the collection of information from customers. Normally, that goes to complaints through our anonymous inquiry facility. But through ‘my account’, where we would normally access most of our requests for assistance, there would be the ability to capture more information, and that’s normally because the person has given us all their information that we’ve sought and they’re seeking to provide us with further information to assist us in making an assessment of their RFA, or request for assistance. I’m not quite sure that they’re limited from writing more than the characters that you’ve said.  

Senator ROBERTS: My understanding is that they tried to make an application but couldn’t get beyond the bureaucratic brick wall of that 1,000-character limit, which is roughly 130 words. Why was there no email address on your website, other than one that the submitters are told relates to freedom of information requests? When they couldn’t get their material under the 130-word limit, they then looked for an email, and the only one they could find they used, and were told that it relates to freedom of information requests.  

Ms Booth: Most of our requests for assistance come through a telephone contact. Of course, our 13-13-94 number gives no limit to the amount of information that can be conveyed, so that option perhaps in this case was not one that was undertaken by those people.  

Senator ROBERTS: These are pretty intelligent people. I’m surprised that they did not see it.  

Mr Campbell: I don’t know. I don’t want to speak to that, because I’d be making a judgement about their intelligence, and I can’t do that from here. But our request for assistance online lodgement capability seeks to authenticate the person who’s contacting us, so we know who they are and who we’re dealing with, and information about their circumstances, and that would include seeking them to detail their concerns to us. It’s not my recollection that’s limited. I’m happy to go and have a look because it would seem at odds with how we’re trying to collect information in the authenticated space. As I offered at the start, there is a facility for people to provide us with anonymous information about a workplace or circumstance, and that might have a limited character overlay on top of it, which might be where they’ve started, as compared to seeking to raise with us a request for assistance using online lodgement.  

Senator ROBERTS: With, say, a document with 20, 30 or 40 pages of evidence—these people have a lot of evidence—even just taking a small slice of it, they were wondering initially how they would get that past that bureaucratic brick wall.  

Mr Campbell: I don’t think there is a bureaucratic brick wall.  

Senator ROBERTS: That’s what they tell me.  

Mr Campbell: Perhaps I could take it on notice and confirm it for you.  

Senator ROBERTS: Okay.  

Ms Booth: As Fair Work Ombudsman, could I reassure the committee that there is no bureaucratic brick wall. If anything, the channels of communication into the Fair Work Ombudsman that I’ve observed, since I have been Fair Work Ombudsman, are many and varied, and there is no constraint on the amount of information that can be provided.  

Senator ROBERTS: So you would refute any suggestion that the Fair Work Ombudsman is trying to make it impossible for workers to provide evidence?  

Ms Booth: Absolutely, I would refute that.  

Senator ROBERTS: Could we have a list, on notice, from Mr Campbell?  

Mr Campbell: I’ll take that on notice and come back—  

Senator ROBERTS: Yes, a list of all the optional ways of getting through and maybe some assessment of whether it’s easy to identify those options; that is, whether it would be easy to find, for someone who lands on your website?  

Mr Campbell: Absolutely.  

Senator ROBERTS: How should workers submit a complaint? How do workers communicate with you, and how do workers get through that 1,000-character limit? What are the options?  

Ms Booth: Make a phone call. Ring 131394 and speak for as long as you like to a Fair Work adviser. 

Senator ROBERTS: From there, you would say, ‘Send us the evidence’?  

Mr Campbell: It would be allocated to an officer for assessment and determination about what further assistance we might be able to add or offer. If the circumstance, as depicted to us, warrants an intervention by an inspector, for example, it might be allocated to an inspector, who would then consider it, and they might seek further particulars from the customer or the complainant, depending on the circumstances.  

Senator ROBERTS: Would the Fair Work Ombudsman consider creating an email account where complainants, regarding wage theft, can lodge their complaints in full, with all documentation required to prove their complaint?  

Mr Campbell: No.  

Senator ROBERTS: Why not?  

Mr Campbell: Because it’s an inefficient way to deal with disputes from customers.  

Senator ROBERTS: Why is it inefficient?  

Mr Campbell: Because they are unauthenticated contacts from a customer. Anyone can create an email address. We seek to create a picture of the customer so that we can determine how we can best assess them: understand award coverage, understand which sections of the Fair Work Act might be triggered by their circumstances, make a determination on their level or ability to self-resolve their workplace dispute and find out whether they’re still employed, the business that they work for and the customer details. We have a portal which is used daily and regularly, and very successfully, by thousands of individuals every year. It is consistent with every other regulator in the Commonwealth and probably at the state level, in terms of how they deal with volume complaints from their ‘regulator’ community.  

Senator ROBERTS: Is the Fair Work Ombudsman aware that the Senate has directed Minister Burke to investigate the multimillion-dollar wage theft—we estimate it to be over $1 billion in total—conducted against labour hire coalminers, where their 25 per cent casual loading was not paid and an average of more than $30,000 person per year was not paid?  

Ms Booth: I am aware that a resolution of that nature was passed in the Senate, yes.  

Senator ROBERTS: Are you aware that some miners have been underpaid $40,000 a year, person, for up to a decade?  

Ms Booth: I have no comment on that.  

Senator ROBERTS: The number of miners, we believe, is around 5,000 or more?  

Ms Booth: No comment on that.  

Senator ROBERTS: More than $1 billion in wages stolen, it’s estimated?  

Ms Booth: Again, no comment.  

Senator ROBERTS: Including an Australian subsidiary of the world’s largest labour hire company, Japan’s Recruit Holdings?  

Ms Booth: These are matters that you’re asserting; I have no ability to verify them here, so I will not comment on them.  

Senator ROBERTS: On behalf of some of the world’s largest multinational global mining companies?  

Ms Booth: As indicated.  

Senator ROBERTS: In collusion with the CFMEU, which enabled theft by illegal enterprise agreements, which the Fair Work Commission approved?  

Ms Booth: Again, no comment.  

Senator ROBERTS: Is the Fair Work Ombudsman aware that the CFMEU Mining and Energy Union has recently admitted publicly, in circulars, that wage theft has occurred?  

Ms Booth: I’m not aware of those alleged admissions in circulars, no.  

Senator ROBERTS: They denied it for many years, when I was raising these issues. Now they’re admitting it publicly, in email newsletter form. They’re basically admitting it, and vindicating me in what I’ve been saying for five years, including the amounts owed. Why has the CFMEU Mining and Energy Union not applied for backpay?  

Ms Booth: I can’t read the mind of the CFMEU.  

Senator ROBERTS: Has it applied to the Fair Work Ombudsman for a ruling? 

Ms Booth: A ruling?  

Senator ROBERTS: An investigation. Has it made a complaint to the Fair Work Ombudsman about underpayment?  

Ms Booth: Not that I’m aware of. Mr Scully, as you previously heard, is responsible for that area.  

Senator ROBERTS: It seems not; I would conclude not. That means they certainly haven’t applied for backpay. Perhaps mine workers are now joining the Independent Workers Union of Australia in Central Queensland and the Hunter Valley because they’re finding that they can make applications for backpay.  

Ms Booth: Again, I have no knowledge of that.  

Senator ROBERTS: Will the Fair Work Ombudsman, along with the Fair Work Commission, accept some responsibility for the massive stolen wage bill, an issue that I’ve been raising for almost five years?  

Ms Volzke: We’re aware that the motion has been made and we understand that, in the evidence that was given yesterday, the department is considering their advice to the minister on that, and we will await that as well.  

Senator ROBERTS: I’ve been dismayed—I won’t raise the names—that, on a number of occasions, the Fair Work Ombudsman has relied in Senate estimates hearings on documents that I have argued and documented as being fraudulent, as has Simon Turner, and I showed those documents to be fraudulent. Are you aware of that, Ms Booth?  

Ms Booth: I’m aware of your assertions,  

Senator ROBERTS. My observation is that the Fair Work Ombudsman assesses a request for assistance comparing workers’ actual payments received with their lawful entitlements under their work instruments. That is our obligation and that is what we do.  

Ms Volzke: We provided a formal letter in relation to one of those complainants, under a letterhead dated 23 July 2023, about those allegations of fraudulent evidence.  

Senator ROBERTS: My understanding of that letter is that it ignores documented evidence and decisions from other federal government agencies saying that the document that the Fair Work Ombudsman officers relied upon was not correct and was fraudulent; is that the same letter?  

Ms Volzke: It is. It is, I think, about a six-page response, so I would consider it to be very thorough. The outcome of our investigation into that is included in that letter.  

Senator ROBERTS: I don’t agree that something is thorough or accurate just because it’s lengthy.  

Ms Volzke: I would say that, in relation to the investigations that we have undertaken into a couple of individuals, which I’m sure you’re well aware of, I feel very confident that the Fair Work Ombudsman has undertaken an extremely comprehensive investigation in relation to all of those matters. I feel very confident in the outcomes. In terms of what the law is and what the legal outcome is, I feel very confident in those outcomes.  

Senator ROBERTS: Could we have a copy of that letter dated 23 July 2023, please? That doesn’t have to be right here and now, but could we have that on notice.  

Ms Volzke: Yes, of course.  

Senator ROBERTS: Will the Fair Work Ombudsman continue to deny that the miners have been the victims of a massive fraud that labour hire companies have perpetrated?  

Ms Volzke: Again, as the regulator, it’s our role to apply the law as it currently stands, including when an agreement has been approved as passing the BOOT by the Fair Work Commission. We apply that agreement. That’s exactly what we’ve done in relation to those investigations where there has been an agreement that has applied.  

Senator ROBERTS: What about if the enterprise agreement is illegal?  

Ms Volzke: I don’t think we should speculate around hypotheticals. We know of various cases, and I think in previous estimates we’ve spoken about them: the Warren case, One Key and another more recent one. The reality is that the legal effect of the Black Coal Mining Industry Award not providing for casual employment in operational roles has not been comprehensively argued or subject to submissions by any party, so there has not been an authoritative determination on that issue.  

Ms Booth: I think it really is very important to understand the distinction between the role of the Fair Work Ombudsman and the role of the Fair Work Commission. Whatever we would like it to be is not in our purview; we look at what is, in terms of the law. We look at the law as it stands and not at how the law came into being or what it ought to be in the future. 

Senator ROBERTS: That’s fine. We’re seeing what seems to me to be—and I’ve been advised that this is correct—criminal involvement of some CFMEU or Mining and Energy Union bosses who facilitate, enable and approve the wage theft through illegal enterprise agreements. I’ve asked Mr Campbell for the process that people can follow for various ways of applying. Could you also advise me of any ways that the Fair Work Ombudsman could consider to make the process easier. Maybe think about the perspective of someone making a complaint or a request, including what they would confront when they log on to your website and how that process could be made easier.  

Mr Campbell: I’ve taken the questions on notice and I’ve undertaken to get you the information. I don’t want to open up the dialogue again; I’ve said yes, so I will do it. 

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No Progress on Wage Theft

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I asked officials from the Department of Employment and Workplace Relations (DEWR) if they were aware of the second reading amendment, which requires the government to investigate wage theft in the Hunter Valley. This issue could potentially involve up to $1 billion, impacting around 5,000 miners with losses estimated at $40,000 per person per year.

The officials confirmed their awareness but were unable to specify when the minister had been informed or if any plans or discussions had been initiated to advance the investigation.

Transcript

Senator ROBERTS: My first set of questions relates to a recent Senate second reading motion to a Fair Work Act bill. The motion requires the government to conduct an investigation into massive wage theft occurring in the coalmining industry. I will read the motion. The part that is relevant states:  

but the Senate:  

(b) requires the Government to investigate claims that casual miners working under enterprise agreements in the black coal mining industry are, and have been, underpaid; and  

(c) if underpayments are found to have occurred, facilitate the reimbursement of the underpayments;  

Ms Yanchenko: Thanks. We’re certainly aware of that motion.  

Senator ROBERTS: This is Australia’s largest wage theft case, totalling possibly over $1 billion and involving thefts of up to $40,000 per year per miner, stealing from 5,000 or more coalminers. When was the Senate’s second reading amendment to your government’s latest Fair Work Act amendment bill conveyed to the minister?  

Mr Manning: I am not sure, in the sense that we wouldn’t necessarily have conveyed it to the minister.  

Ms Yanchenko: We were watching along in real time.  

Senator ROBERTS: Did you convey that to the minister?  

Ms Yanchenko: I didn’t personally, no.  

Senator ROBERTS: Is it possible to find out when the minister—  

Mr Manning: When he first became aware of it?  

Senator ROBERTS: Yes.  

Mr Manning: We will have to take that on notice.  

Senator ROBERTS: That is fine. I don’t expect you to know everything; most things, but not everything. I take it then that no discussions have been held between the minister and the department?  

Mr Manning: We are still thinking through our advice to the minister; so, no, not yet.  

Senator ROBERTS: Has the department received or made any instructions?  

Mr Manning: We haven’t yet given advice or a submission to the minister about the motion. We are still working through it.  

Senator ROBERTS: So you haven’t made any instructions to him or given him any advice?  

Mr Manning: Not as yet.  

Senator ROBERTS: Has Minister Burke discussed with you the nature of the investigation the Senate required him to make into wage theft involving Central Queensland and Hunter Valley miners?  

Mr Manning: No, not yet.  

Senator ROBERTS: Have any of your staff raised it with you?  

Ms Wettinger: At this stage we haven’t discussed the matter with any of the minister’s staff, no.  

Senator ROBERTS: Who do you expect will have a role in the investigation?  

Mr Manning: It is too early to say. There is a long history to the matter—  

Senator ROBERTS: A very long history.  

Mr Manning: So that’s what we are considering in terms of getting ready for those discussions and that advice to the minister.  

Senator ROBERTS: Minister, what would you expect of a fair and independent investigation?  

Senator Watt: That it be fair and independent.  

Senator ROBERTS: What would characterise a fair and independent investigation?  

Senator Watt: I think everyone understands what those concepts mean. I know you have an interest in the conditions of coalminers. Have you caught up on the good news about the first decision or agreement resulting from our ‘Closing Loopholes’ laws?  

Senator ROBERTS: I am aware that there is an agreement in application.  

Senator Watt: I think there might even be a couple, actually.  

Senator ROBERTS: I am aware of two.  

Senator Watt: It is good news that we are seeing coalminers receive what they are entitled to as a result of our legislation. I don’t think you voted for that legislation, Senator.  

Senator ROBERTS: We’ll hear more about that. I have already told you why publicly, Senator Watt.  

Senator Watt: It is delivering more money to coalminers.  

Senator ROBERTS: I’ll have more to ask you about that tomorrow, with glee. 

Senator Watt: Sure. 

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Government to Investigate Biggest Wage Theft in the Coal Sector

Finally! After 5 plus years of calling out dodgy CFMEU union bosses, Labor and the Fair Work Commission, the Senate has backed my call for an investigation into the biggest wage theft in the coal sector.

The industrial relations community was staggered last week when Australia’s senators voting on a show of voices – no one asked for a formal vote – decided to demand that the government investigate what is potentially the nation’s biggest wage underpayment scandal.

If shown to be correct, the alleged underpayment of New South Wales and Queensland coal miners will involve repayment of more than $100 million.

Read more here: Australia’s biggest underpayment case may uncover a few surprises | The Australian

When I first disclosed this scandal, I called on ALP politicians and other supporters of the CFMEU and Fair Work Commission in the parliament to set aside their links and think of what happened to the coal miners. And that’s exactly what the senators did. Full marks. Now the Senate must make sure the government carries out their instructions in a proper manner.

Some years ago, a small group of coal miners came to me telling him that they believed they were not being paid correctly. I have worked tirelessly to discover that thousands of NSW and Queensland coal miners had worked long hours underground for over a decade as casual labour, but did not receive the 25 per cent “casual” premium workers all over Australia receive.

Motion

Fair-Work-Amendment-Bill-2024_RobertsDownload
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Casual Wage Theft Under Fair Work Commission’s Watch

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Thousands of “casual” miners in Central Queensland and the Hunter Valley are each owed an average of $33,000 per year in back pay for every year of service for wage theft.

When inquiring with the Fair Work Commission about applying the Better Off Overall Test (BOOT), I asked if they would expect the pay under an Enterprise Agreement (EA) to at least match that under the relevant Award. Mr. Furlong confirmed that the EA would indeed be compared with the Award. I highlighted that there are workers under EAs who are earning significantly less than the Award, with these EAs being sanctioned by the Fair Work Commission and devised in collaboration between employers and the CFMEU.

I reiterated to Senator Watt that I could not support legislation that goes against the interests of workers and conceals the wrongdoing of unscrupulous unions. Minister Burke is shirking his responsibilities by refusing to deliver justice for thousands of workers ensnared in the casual rort stemming from enterprise agreements crafted in collusion with the CFMEU and labor hire firms, resulting in the largest wage theft in Australian history.

Transcript

Senator ROBERTS: Thank you all for being here. Good to see you again, Mr Furlong. When the Fair Work Commission assesses the application of the better off overall test, the BOOT, to a proposed enterprise agreement, would it be a normal expectation that the pay rate under the enterprise agreement should be clearly equal to or above that of the relevant award? 

Mr Furlong: As you are aware, and as we have discussed in previous estimates, the agreement making process involves a statutory decision-holder, a member of the commission, looking at the facts of the matter and then applying a legal test, the better off overall test. There are some other elements that they are required to satisfy. On the basis of that, they make a determination about whether or not the agreement is to be approved or not. 

Senator ROBERTS: Would it be a normal expectation that the pay rate under the enterprise agreement should be clearly equal to or above? That is a normal expectation? 

Mr Furlong: Yes. The better off overall test— 

Senator ROBERTS: Thank you. Are there circumstances in which, when considering the better off overall test, the BOOT, for an enterprise agreement, the Fair Work Commission would not do a comparison against the relevant award? 

Mr Furlong: The answer to that question is that there would be an award that they will refer to in terms of the application of the better off overall test. Through that process, they will determine whether or not that agreement as made is better off overall than the underpinning agreement. 

Senator ROBERTS: So they would do a comparison against the award? 

Mr Furlong: Yes. 

Senator ROBERTS: Thank you. If the enterprise agreement pay rate were not equal to or above the relevant award, and instead paid substantially less than the award, what would be the criteria used to justify that the enterprise agreement still passed the better off overall test, the BOOT? 

Mr Furlong: It’s not a line-by-line comparison. 

Senator ROBERTS: No. What would be the criteria? Broad criteria? Line by line? Whatever you want? 

Mr Furlong: It is the better off overall test. The Fair Work Act prescribes what the member must take into consideration in determining whether or not that agreement meets the requirements that have been approved. 

Senator ROBERTS: Are pay rates prescribed in there? 

Mr Furlong: They will be. The decisions of the members—the independent tribunal members—will outline the reasons for the approval of those agreements, including whether or not they satisfy the better off overall test. 

Senator ROBERTS: That is a wonderful point. Thank you so much. Even if the award excluded certain classes of employees from its provisions, would that exclusion create the legal circumstances to pay such excluded classes of employee less under an enterprise agreement than what they would or could earn under the award if the class of employees were not award excluded? Just to be clear, I’m not posing a theoretical question here. I refer to the black coal mining industry award exclusion of casuals as an example. Casuals are not specifically referred to in the black coal mining industry award. 

Mr Furlong: I understand that. As we have discussed in previous estimates, the fact that there are no casual coalminers under the black coal mining award doesn’t preclude an enterprise agreement being made. 

Senator ROBERTS: I understand that. I am talking about the pay. If an award excluded certain classes of employees in the coal industry—casuals—from its provisions, would that exclusion create the legal circumstances to pay such excluded classes of employee less under an enterprise agreement than what they would or could earn under the award if the class of employees were included in the award? 

Mr Furlong: Senator, I have tried as hard as I can to be helpful in terms of the second part— 

Senator ROBERTS: You are being helpful. 

Mr Furlong: that we have provided. My role as the general manager is to provide administrative support to the president on the efficient running of the tribunal, in essence. The matters that you are going to now traverse instances or occurrences that may end up before tribunal members for their determination. I can’t answer that question. 

Senator ROBERTS: Okay. That’s fine. Thank you. Minister, what would be the attitude of the government where workers working under enterprise agreements were paid less than the award even though the workers were doing exactly the same job they would under the award? 

Senator Watt: Well, I would want to know more about the circumstances there. In general, the idea behind enterprise bargaining is for people to obtain pay and conditions above the award level. 

Senator ROBERTS: Why is Minister Burke shirking his responsibilities and refusing to provide justice for thousands of workers caught in the permanent casual rort that is the result of enterprise agreements agreed between the CFMEU, now known as the Mining and Energy Union, with some labour hire firms, all with the Fair Work Commission’s approval? When will Minister Burke address this, the largest wage theft in Australian history? 

Senator Watt: Well, as we’ve discussed many times, Senator Roberts, Minister Burke is not avoiding that. In fact, Minister Burke has led the government’s efforts to address and fix the permanent casual rort, including through the legislation that we passed only last week. I actually don’t remember how you voted in that legislation. 

Senator ROBERTS: I voted against it because it would not address the issue that I am talking about right here. It buries the issue and buries the culpability of the unions. 

Senator Watt: I thought you probably voted against that legislation last week, because One Nation has pretty consistently voted against the legislation that has been designed for workers. 

Senator ROBERTS: We vote against it, as I explained, because it doesn’t address the issue. It buries the issue. 

Senator Watt: Just as you voted against the closing loopholes bill last year, which is all about trying to put labour hire workers on an even footing with other workers. 

Senator ROBERTS: Not true, Minister. 

Senator Watt: Well, One Nation has consistently voted against these things. 

Senator ROBERTS: You are consistently avoiding the issue of thousands of casual coalminers in the Hunter Valley and Central Queensland, our own state. I want that addressed. 

Senator Watt: I’m not. We’re not. We’ve gone over this ad nauseam. 

Senator ROBERTS: To make a point here concerning the validity of an enterprise agreement that removes the minimum statutory protections of any award, I quote the following paragraph from the full bench Federal Court decision in One Key Workforce Pty Limited v Construction, Forestry, Mining and Energy Union, decided in 2018. I go to paragraph 227. This is from the court decision: 

It is uncontentious that, where a statute requires an administrative decision-maker to reach a state of satisfaction about a matter, the opinion as to the state of satisfaction must be reached by a rational, reasonable and logical process. 

I will go to paragraph 204. I quote: 

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 who makes such an error exceeds his or her authority and acts without jurisdiction. 

I’m going to read— 

CHAIR: If we keep to the time line, I am giving you a heads-up. 

Senator ROBERTS: I’m nearly done. I have two questions and I will read some material. We had a team of workplace lawyers—I emphasise the plural—consultants and coalminers review and analyse five significant labour hire coal mining enterprise agreements and their work roster, which is complicated. The CFMEU, now the Mining and Energy Union, was involved in, was a party to or signed off on all five agreements. The Fair Work Commission approved all five agreements. The enterprise agreements all underpay the award dramatically. Specifically, in the core staff enterprise agreement 2018, the yearly underpayment for casuals working under that award is estimated at $22,623. It is wage theft. The FES agreement in 2018 has yearly underpayment estimated at $27,563 of wage theft for casual workers. The WorkPac agreement in 2019 showed yearly underpayment for casuals estimated at $33,555. Wage theft. The Chandler Macleod agreement 2020 has yearly underpayment estimated at $39,341. Wage theft. The Tesla group agreement 2022 yearly underpayment is estimated at $40,645. Wage theft. The Fair Work Commission has ruled that at least five black coal mining industry enterprise agreements exceeded their authority. Minister, what avenues will Minister Burke and your government take to restore basic entitlements lost under agreements that the CFMEU, the Mining and Energy Union, signed with various employers and that the Fair Work Commission approved? 

Senator Watt: Well, Senator Roberts, I have personally sat through probably at least half a dozen estimates committee hearings where you have raised these issues repeatedly. Various officials have answered these questions repeatedly. The matters have been investigated, as I understand it, and dealt with. I understand that you are not satisfied with those answers, but I can’t add to what we’ve said about these things before. 

Senator ROBERTS: Does it bother you that I have explained that the Fair Work Ombudsman has used a fraudulent document that has been deemed fraudulent by the Australian Taxation Office as evidenced against five others? It is solid evidence, including a court hearing. 

Senator Watt: If that were true, of course I would be bothered by it. 

Senator ROBERTS: You would be. Okay. 

Senator Watt: But I’m not sure that is true. 

Senator ROBERTS: Okay. This is my last question. Why has the process that the Fair Work Commission has adopted since 2010 in approving coal industry enterprise agreements that remove the minimum statutory protections of the black coal mining industry award clearly devoid of any form of rationality, reasonableness or logic? 

Senator Watt: What was the beginning of that question? 

Senator ROBERTS: Why is the process that the Fair Work Commission has adopted since 2010 in approving coal industry enterprise agreements that remove the minimum statutory protections of the black coal mining industry award—its entitlements, pay rates, the wage theft that I’ve just illustrated—clearly devoid of any form of rationality, reasonableness or logic, as the Federal Court requires? 

Senator Watt: That is obviously your opinion, Senator Roberts. I know that it is a strongly held opinion. I don’t think that opinion is shared more broadly. 

Senator ROBERTS: Thank you, Chair. 

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Encouraging Competition Among Unions Will Protect Workers

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I spoke in support of Senator Lambie’s Fair Work (Registered Organisations) Amendment (Protecting Vulnerable Workers) Bill 2024. For context, I provided the senate chamber with the facts on Australia’s largest wage theft. This casual labour rort stole on average around $33,000 per casual coal miner per year in central Queensland and the Hunter Valley through Chandler Macleod Group, a subsidiary of a foreign multinational, Recruit Holdings — one of the world’s largest labour hire companies.

How did this happen? For a decade, CFMEU bosses have betrayed the coal miners they are supposed to protect. The Fair Work Commission has unfairly betrayed workers by approving dodgy Enterprise Agreements. Meanwhile, the Fair Work Ombudsman, the last line of defence for the workers, has sat on its hands and refused to act. Consultants and industry lawyers, some with over 40 years of experience in industrial relations prepared a report looking into this casual wage theft. They were stunned by what they’ve now confirmed is happening across our coal industry.

The current Queensland government is trying to prevent the development of the new Red Union that is now making inroads into the previous membership of failed mainstream unions like the QNU and QPU that have failed to adequately represent their members in disputes with employers. Membership has passed 18,000 and is rapidly growing. What’s at stake here is the issue of freedom of choice. There are thousands of women working within the Textile Clothing Footware sector which is currently part of the CFMEU. These women need to be able to choose who they wish to be represented by and they should be able to make those choices by secret ballot. This is necessary to ensure that intimidation by certain union leader thugs is kept to a minimum.

I support this Bill as it is good legislation, supports vulnerable women and is a further step in recognising the rights to freedom of choice in determining an important issue of autonomy for women. The ability of these women to choose to demerge from the CFMEU must be confirmed.

Transcript

Thousands of casual miners working in central Queensland or the Hunter Valley are each owed, on average, for wage theft, backpay of around $33,000 per year for every year of service. That’s $33,000 per year. If you’re a casual, you’re likely to be owed an estimated $33,000 per year as a victim of Australia’s largest wage theft. How? It’s due to the CFMEU union bosses betraying and controlling workers, because the CFMEU was the sole union in coal mining production. When entities lack competition, they tend to behave with impunity due to a lack of accountability. They can do whatever they bloody well want. 

We support Senator Lambie’s Fair Work (Registered Organisations) Amendment (Protecting Vulnerable Workers) Bill 2024 because it encourages competition for the unions and gives freedom of choice to workers, and it portrays fairness. I’ll move to Senator Lambie’s excellent bill after closing on the largest wage theft scam, because that illustrates, yet again, the importance of Senator Lambie’s bill to protect workers from unaccountable union bosses. 

A team of experienced workplace lawyers, consultants and coalminers reviewed and analysed five significant labour hire coalmining enterprise agreements. The CFMEU were involved in, were a party to, or signed all five agreements. This is the report of these experts. The Fair Work Commission approved all five agreements. The enterprise agreements all underpay the award. For example, for the CoreStaff 2018 enterprise agreement, the yearly underpayment was estimated at $22,623. It gets worse. For the FES 2018 agreement, the yearly underpayment was estimated at $27,563. For the WorkPac 2019 agreement, the yearly underpayment was estimated at $33,555. For the Chandler MacLeod 2020 agreement, the yearly underpayment was estimated $39,341. For the Tesa Group 2022 agreement, the yearly underpayment was estimated at $40,645. 

It’s all due to collusion between the CFMEU, labour hire companies and the Fair Work Commission. The CFMEU signed and approved all. The CFMEU agreed in writing—we’ve seen the letter—to not pursue complaints that workers raised. The Chandler MacLeod group, one of the parties to the enterprise agreement, is a subsidiary of the world’s largest labour hire company, Recruit Holdings—a foreign, multinational. How did this happen? For a decade, CFMEU union bosses have betrayed coalminers. The Fair Work Commission has betrayed workers in approving enterprise agreements paying far less than the award, and the Fair Work Ombudsman turned a blind eye to it all and refused to get involved. The CFMEU’s mining division, the Fair Work Commission and some large labour hire companies have colluded to screw workers using enterprise agreements that are unlawful. 

As I said, we commissioned an experienced team to investigate Australia’s largest wage theft case involving thousands of miners across the industry for up to a decade. They were stunned at the brazen collusion between the CFMEU union bosses, employers, Fair Work Commission and Fair Work Ombudsman. Some of these consultants and lawyers have over 40 years of experience in industrial relations and were stunned with what they confirmed was happening across our coal industry. The workers’ supposed protectors, the CFMEU union bosses and the government’s Fair Work Commission and Fair Work Ombudsman, have cruelly betrayed workers en masse. I’ve written to the current and former members for the Hunter in federal parliament, to CFMEU union bosses and to Minister Burke. All have done nothing. They buried the issue to protect union bosses. Let’s move to Senator Lambie’s bill. I support Senator Lambie’s bill. The issue she raises is symptomatic of many large unions and the decline of the union movement under unaccountable union bosses, who are tarnishing the movement. Labor’s recent legislation giving enormous power to union bosses will eventually hurt the union movement and unions overall because it entrenches the huge monopoly power of union bosses and removes accountability. The union movement will crumble because of that lack of accountability. Workers will abandon it, as they already are. 

An essential freedom of the Australian workplace scene should be the freedom for workers to choose who they want to represent their interests through a choice as to the union they want to join. There are thousands of women in the textile, clothing and footwear union, currently part of the CFMEU. Many of those women have expressed dissatisfaction with the representation the CFMEU provides them through their membership. Unfortunately, many of these members, who often have limited English language proficiency, are handicapped by having experienced exploitation, underpayment, intimidation and poor working conditions. The Labor government, with the Greens, have to date voted to prevent these women from exercising their right to choose to leave the CFMEU. These women are afraid of intimidation after losing their right to an anonymous vote—women afraid, in Australia, of union thugs. This is as a result of the passing of the draconian Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023. 

As a coalminer working at coalfaces, mostly underground, around Australia, I was a proud union member—back when the coalminers union was the Miners Federation, a strong, honest union. As a mine manager and, later, as an executive general manager, I dealt with many honourable union delegates who strongly spoke for, and served, their members’ interests. The union movement has a proud history, and in Australia that includes a proud history of women playing a lead role in the movement. It’s a fact, though, that as a result of some powerful union bosses who could only be described as cowardly, dishonest thugs or possibly criminals there’s been a decline in union membership and subsequent loss of union power in the Australian industrial landscape. This means a loss of membership funds and other moneys that have historically flowed to the Labor Party. Labor hates to lose campaign money. 

The TCF women do not wish to be members of the CFMEU and to be associated with an organisation that has such a poor reputation and is not providing service in exchange for union fees. In recent years, the CFMEU have been caught selling out their members to benefit large, multinational labour hire firms and enrich the CFMEU, at the members’ expense, by unprecedented wage theft. 

The current Queensland government is trying to prevent the development of the new Red Union, which is making inroads into the previous membership of failed mainstream unions, like the Queensland Nurses and Midwives Union and the Queensland Teachers Union, which have failed to adequately protect and represent their members in disputes with employers. Red Union membership is now almost 19,000 and has rapidly grown in the Nurses Professional Association of Queensland and the Teachers Professional Association, and now it’s growing in every state around our country. Teachers and nurses, not union bosses, lead the new and rapidly growing union. Fees are around half those of the Queensland Teachers Union and the Queensland Nurses and Midwives Union, which provide inferior service and donate membership funds to the Queensland Labor machine. That’s why the Queensland Labor government has stepped in with an attempt to ban the Red Union—to protect the Queensland Teachers Union and the Queensland Nurses and Midwives Union and the millions of dollars flowing to the Labor machine’s election campaign. So we have the Queensland Labor government trying to ban the formation of a new union because it nobbles them. Queensland union bosses publicly and openly showed their power in appointing the new Premier of Queensland. We saw it in Queensland: union bosses saying who would be the next Premier. It’s Steven Miles. 

What’s at issue here is freedom of choice. These women need to be able to choose who they wish to represent them and should be able to make those choices in a secret ballot. This is necessary to ensure that intimidation from thugs is kept to a minimum. I support this bill and I commend Senator Lambie for it. It’s solid, effective legislation. It supports vulnerable women and is a further step both in recognising the right to freedom of choice and in determining an important issue of autonomy for women and for all workers. The ability of these women to choose to demerge from the CFMEU must be confirmed. Union membership must be voluntary and there must be freedom of choice as to who someone’s representative should be. That is for the benefit of the union movement because, with choice comes competition and then accountability. 

We support this bill that gives women and workers rights that union bosses have stolen. We call for a public and parliamentary discussion on restoring industrial justice and basic human rights and freedom of choice to workers. We applaud Senator Lambie for her bill as another step towards freeing workers from powerful union bosses. 

/3 Comments/by

The Decade-Long Scam Robbing Some of Our Miners

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By Robert Gottliebsen | The Australian

Before being elected to the Senate, Malcolm Roberts was a coal miner, following in the tradition of Australia’s sixth Prime Minister Joseph Cook.

Some five years ago, a small group of coal miners came to Roberts telling him they believed they were not being paid correctly — but they couldn’t work out what was wrong.

At the time, Roberts had no idea he was on the edge of uncovering what he calls a “scam” which has the potential to be Australia’s largest ever wage underpayment scheme.

Read more of the article here: Robert Gottliebsen: Miners underpaid by strange legislative loophole | The Australian

See all material on this issue

Casual Coal Wage Theft

Related Parliamentary Speeches

Labor are Not the Party of the Workers
Exposing the Permanent-Casual Rort
/2 Comments/by

Coal Mining Wage Rip-Off report

Senator for Queensland, Pauline Hanson’s One Nation Party c/ AUSPIC

This report details extensive calculations that demonstrate casual coal miners across the Central Queensland and New South Wales Hunter Valley districts are being ripped off on average $30,000 a year of potential earnings under enterprise agreements negotiated by the union.

This report was summarised in a speech to the Senate here.

Coal-Miners-Wage-Theft-V1-6-February

Download/Print: COAL MINERS WAGE THEFT (malcolmrobertsqld.com.au)

Calculation workbook: Award Calculations.xlsx

Enterprise Agreements

Chandler Macleod Queensland Black Coal Mining Agreement 2020

Corestaff NSW Black Coal Enterprise Agreement 2018

FES Coal Pty Ltd Greenfield Agreement 2018

Tesa Group – Enterprise Agreement 2022

Workpac Coal Mining Agreement 2019

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Labor are Not the Party of the Workers

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Today the Labor government will vote AGAINST my amendment that would award back pay to casual miners who had more than $30,000 a year stolen from them under union negotiated agreements.

Nothing in Labor’s bill will compensate these ripped off casual workers and now they will vote down my amendment that would pay them back.

So much for Labor being the party of the workers.

This amendment was voted down by Labor and the major parties

Transcript (click here)

Casual miners—so-called casual miners—working in Central Queensland and the Hunter Valley are each owed an average, due to wage theft, back pay of around $33,000 per year for every year of service. If you’re a casual, you are likely owed $33,000 per year that you have worked. My amendment aims to get these miners their back pay. Before getting to that, I note that the Senate has yet again been hijacked with a guillotine this afternoon, when almost half the Senate want more debate. This is a grotesque abuse of power. It’s a grotesque abuse of democracy. It’s a grotesque abuse of process in this Senate—the people’s Senate. These are serious guillotines. We know that sometimes guillotines are arranged, and that’s fine, with the consent of just about everyone. Regarding serious guillotines, where there’s a genuine disagreement between Labor and the LNP and a need for more debate, here are the figures: in the 45th Parliament, there were two; in the 46th Parliament, there were 24; and, in the 47th Parliament, under Labor, the Greens, Teals and the coalition, we’re halfway through and there have been 39 already. Almost all guillotines involve a Labor-Greens-Teal-Senator Pocock coalition. This morning we have Senator Thorpe and Senator Pocock amending significant industrial relations legislation affecting many employees, small businesses and employers around the country. Yet we have limited time to assess and almost no time to debate.

Minister, last night in my second reading speech, I explained, in great detail, what I believe is the largest systemic wage theft in Australia. It’s explained in the independent report that One Nation commissioned. I foreshadowed an amendment to pay casuals working in the black coal mining industry. It’s been tabled. Casual coalminers are being ripped off to the tune of around $33,000 each and every year.

Labor’s bill would put more power with union bosses. After what I unveiled last night, that’s putting the fox in charge of henhouse. The CFMMEU, the Construction Forestry, Maritime, Mining and Energy Union, enabled and supported wage theft from casual coalminers. The CFMMEU negotiated and endorsed enterprise agreements that pay casual coalminers less per hour than the award combined with a 25 per cent casual loading. Some enterprise agreements in the coal sector paid and still pay paid casual workers less than a full-time worker receives per hour under the award. Ignore the loading; it is less than the award. That’s a casual being paid less than a full-time worker. How? CFMEU union bosses negotiated and approved this wage theft. Minister, union bosses negotiated and approved these agreements that pay casuals less than full-time workers, yet your bill places more power with those union bosses, who failed to protect workers and who betrayed workers— union bosses who enabled theft from mineworkers. The Fair Work Commission failed. They failed to properly assess these agreements and let them sail through. They approved them. When I asked the Fair Work Commission at Senate estimates to provide me with a copy of the better off overall test, the BOOT, that they had conducted for just one of these agreements, they could not hand over a single document or spreadsheet—not one. This is a wage theft resulting from a cosy collusion between the labour hire companies, including the world’s largest labour hire company, which is owned by a Japanese parent company; union bosses who betrayed workers; and the Fair Work Commission. All three are culpable.

My amendment on sheet 2339 will trigger a review of those coal enterprise agreements to ensure they meet all relevant entitlements. It would ensure any underpaid casual coalminers are compensated for the wage theft they have suffered and would pay them the $33,000 each per annum that they’re entitled to. This cost would be apportioned between the offending labour hire company—the employer—the union and the Commonwealth, through the Fair Work Commission, for their culpability in the wage theft. Senators who vote for Labor’s legislation without voting for my amendment are endorsing massive wage theft—Australia’s largest ever wage theft. Legislation must not just attempt to fix it for the future; it must right the wage theft and get the back pay.

Minister, why doesn’t the government support my amendments on sheet 2339 to pay back entitlements for casual coalminers that have had wages stolen from them—$33,000, on average, per year?

Senator WATT (Minister for Agriculture, Fisheries and Forestry and Minister for Emergency Management): Senator Roberts, thanks for providing a copy of this amendment to me before the debate started. The government does not support your proposed amendment. We consider that the bill as it stands, which we’re introducing here, provides a considered and balanced framework for defining casual employment and supporting casual employees to convert to permanent employment. The government has consulted with a wide range of stakeholders to reach a position that addresses both employees’ and employers’ needs. The government’s reforms that were passed last year also give labour hire employees the right to seek orders from the Fair Work Commission that provide entitlements to the same pay under a host business’s enterprise agreement. Casual labour hire employees in the black-coal-mining industry can also seek these orders. So, Senator Roberts, the bill as we are presenting it already addresses the needs that casual workers, whether they be miners or others, undoubtedly have. The reforms that we made in our amendments last year, around the labour hire loophole, were also designed to address the rights of casual coalminers in particular. Senator Roberts, I’ve obviously been in a number of estimates hearings where you’ve raised these issues. It is my observation that you have been given answers to these questions by officials on a number of occasions. You haven’t accepted those answers, and you continue to ask the same questions. It’s your right to do so, but I think it’s pretty clear that whatever answer you’re provided with won’t satisfy you. It’s your right to continue campaigning on this issue, but I would remind you, Senator Roberts, that last year, when we did introduce changes to benefit labour hire casual employees to ensure that they are paid at least the same as the permanent workers they work alongside, it was unfortunate and surprising that you voted against that change. I would have thought that, if you were as committed to the rights of casual coalminers as you say you are, you would have voted with the government for those reforms that we implemented last year. I was surprised that, after a number of years of you campaigning on this issue, you voted with the coalition against the interests of those labour hire casual coalminers who you say you represent.

Senator ROBERTS: Minister, let’s have the full truth. We voted against that because it didn’t address the core issue. There is no casual permanent rort loophole at all other than the one I’ve just discussed. The simple solution is that the Fair Work Act needs to be enforced. Your bill covers the future. Your previous bill covers the future. It shuts the door to backpay of these miners who are owed, on average, $33,000 per year for the breach of the Fair Work Act. Way you covering up union bosses’ culpability? That is what you are doing. That’s what Minister Burke is doing. Minister Burke has received two letters from me on this issue. We get a polite, ‘Nothing to see here; move on.’ I’ve written letters. Miners have been in touch through personal meetings and provided solid, written evidence to the department’s senior advisers. Nothing has happened. With the minister’s office’s senior advisers, nothing has happened. With the Fair Work Commission, nothing has happened. The Fair Work Ombudsman used a fraudulent document to deny any case for the miners, despite the miners having five documents, including court hearing transcripts, that say their documents are correct. Why you continuing to cover this up against miners in the Hunter Valley and Central Queensland? Why are you continuing to cover it up? Is it because union bosses in the CFMEU are culpable because they have engineered this? Is it because union bosses in the CFMEU are the ones who started labour hire in the coalmining industry? Is it because they were actually employers and they had some commercial agreements that we’ve got wind of? Minister, these people are entitled to their back pay. That’s what I want, and that’s what this amendment covers. It covers their back pay. We don’t want this bill to go through and simply bury the issue. That’s what Minister Burke is doing. Why are you covering up for union bosses? Is it because they funnel millions of dollars into Labor Party campaign coffers? Why are you not doing this after almost five years of me bringing this to your attention?

Senator WATT: As Senator Roberts has just made clear, he has been raising these issues for five years. The questions have been answered for five years, and I don’t propose to add to any of them, but again I point out that Senator Roberts and Senator Hanson did have an opportunity late last year to vote with the government to ensure that the rights of labour hire workers in coalmines were protected. Unfortunately, Senator Roberts decided to vote with the coalition.

Senator ROBERTS: I will repeat myself. We are not voting for legislation that covers up, endorses and prevents miners from getting their back pay. When this Labor government stops covering up for CFMEU bosses who’ve done dodgy deals, stops covering up for the Fair Work Commission and the Fair Work Ombudsman, which are not doing their job; and stops covering up for labour hire companies—we will not vote for
legislation that prevents miners getting their back pay and covers it up.

See all the material on this issue

Casual Coal Wage Theft

News Article and Related Parliamentary Speech

The Decade-Long Scam Robbing Some of Our Miners
Exposing the Permanent-Casual Rort
/by

Exposing the Permanent-Casual Rort

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I detailed one of the most outrageous wage thefts in the country last night in the Senate. Despite having all of this information, the Labor party continues to cover it up, voting down my amendment that would give back-pay to victims.

Casual coal mine workers are being individually underpaid up to $33,000 per year under union-negotiated deals. Minister Tony Burke is aware of this yet he does nothing about it.

The so-called ‘Loopholes’ Bill will only protect the union bosses at the Construction, Forestry and Maritime Employees Union (CFMEU) and give them more power. It will protect labour-hire companies including the big, foreign-owned ones, and it will protect the government’s Fair Work Commission who is failing Australian workers.

The only loopholes I see are the ones protecting big business and the government and there’s nothing ‘fair’ about it.

Labor has abandoned the workers. One Nation will not stop fighting for ripped off casual coal miners to receive what they’re owed.

Transcript (click here)

As a servant to the people of Queensland and Australia, I rise to speak on the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023. In doing that, I will illustrate why this bill is a sham that does not protect workers like the name implies.

Nothing in this bill will fix the absolute scandal that One Nation has uncovered. The Labor government is giving more power to union bosses, which is putting the fox in charge of the henhouse. As I will explain, union bosses are the ones that have been ripping off workers, and the government regulator, the Fair Work Commission, has endorsed it. I challenge anyone to explain to me in detail how the closing loopholes No. 2 bill will fix the cases I’m about to explain.

An independent report details the largest wage theft scandal Australia has ever seen. Coalmine workers have each had tens of thousands of dollars stolen from them every year. Labour hire companies, union bosses and governments have been covering it up for a decade or more. The culprits are labour hire companies supplying casual workers to some Central Queensland and Hunter Valley coalmines. The CFMEU—the Construction, Forestry, Mining and Energy Union—enabled and supported the wage theft. The Fair Work Commission signed off and endorsed the enterprise agreements, enabling the wage theft.

One Nation commissioned an independent analysis which shows that hardworking, casual coalminers are each being shafted on 2023 pay rates by an average of around $33,000 every year. This is systemic wage theft resulting from collusion between labour hire companies—including major foreign multinationals—the CFMEU and the Fair Work Commission. My grave and disturbing allegations are based on solid facts and hard data.

A quirk in the Black Coal Mining Industry Award makes this scam possible. Under that award it’s illegal for mine employers to have casual employees. Yet, if casuals were legal, everyone in Australia knows that the employer would have to pay casuals 25 per cent more than the award full-time rate, as a 25 per cent casual loading for loss of basic entitlements like leave, sick leave and others. While the award prohibits casuals, labour hire companies—with the CFMEU—created enterprise agreements to employ casuals without any loading. The CFMEU negotiated, approved or sought to become a party to these agreements.

The closing loopholes No. 2 bill claims that all of these problems in industrial relations can be solved if we get the union bosses more involved and give them more power. What is the use of giving the CFMEU bosses more power when they negotiated and approved agreements that have ripped off casual workers for more than a decade? The Fair Work Commission should be policing and rejecting these agreements, yet it approved them. The rates under the agreements were less than the award with a 25 per cent loading. This means that the enterprise agreements are paying much less than what should be paid under the award if it allowed casuals. Some casuals were paid even less than the full-time award through technical legal trickery. All parties claim these agreements are legal, yet everyone knows a casual gets a 25 per cent loading on the hourly rate of a full-time worker. Paying them any less is wage theft. It appears that, once the Fair Work Commission approves an enterprise agreement that pays less than what should be paid under the award, the underpayment then becomes legal.

Yet One Nation is awake. All Australians deserve honest pay for an honest day’s work. We have spent nearly five years investigating wage theft. Nothing in this bill will fix up the absolute scandal One Nation has uncovered. Tonight I launch our major report detailing the extent of the wage theft scam. In 2019, after the CFMEU brushed off many years of casual coalminers’ complaints, the miners brought their underpayment complaints to us in One Nation. We took action. I’ve been holding the Fair Work Commission accountable for nearly five years. We asked the Fair Work Commission to provide their copy of the better-off-overall test—the BOOT—they’ve done on relevant enterprise agreements. The BOOT is supposed to be a safety net that rejects underpaying agreements and protects workers from underpayment. Yet the commission handed us no documents. There are no spreadsheets, no tables comparing conditions and benefits and no real assurance that they’d properly weighed it up. The response was along the lines of, ‘Trust us; it passes.’

The CFMEU has been signing off on dodgy agreements for more than a decade, and the Fair Work Commission is either asleep at the wheel or complicit. Either way, both enable or are responsible for massive wage theft. Last year we raised this issue with the Fair Work Ombudsman and with Minister Burke and his department. Responses from all three have been like that of the Fair Work Commission. ‘Trust us,’ they say, yet they provide no hard evidence.

One Nation then commissioned independent research, with the results in the report. The first part presents the facts of coalmining casual work patterns. It marries those patterns against what the award would require if casual employment were possible under the award. The second part exposes how this scam has been allowed to continue in breach of proper, commonsense application of the law. The report details that coalminers are required to work any time, 24 hours a day, seven days a week, close to a 44-hour week—Saturdays, Sundays, public holidays, days and nights. It’s long, hard work that can be dangerous. The report shows that, according to the award, for example, a full-time mine worker doing 12-hour shifts will earn about $120,849 per year or $53.84 an hour. Taking what a full-time mine worker should earn under the award and adding a casual loading, a casual mine worker doing the same hours should earn $151,061 a year, or a flat rate of $66.40 an hour, regardless of hours worked.

The independent analysis One Nation commissioned looked in detail at mine workers’ hourly rates under the five most common enterprise agreements covering casuals in coalmining. We found that none of the enterprise agreements were paying casual workers anywhere near the $66.40 an hour they should be receiving. Some were even paying casuals less than the hourly rate a full-time worker gets under the award. The fact that a casual worker could be paid less than the hourly rate of a full-time worker under some of the agreements should have set of alarm bells at the Fair Work Commission. Every single enterprise agreement—all five—has the CFMEU’s fingerprints on it, and the Fair Work Commission signed off every single agreement.

The research assessed five of the major enterprise agreements in consultation with independent analysis, lawyers and coalminers. Let’s go through them. The CoreStaff NSW Black Coal Enterprise Agreement 2018 pays casual mine workers $56.16 an hour, much less than the $66.40 a casual should be paid. The CFMEU is recognised under the agreement. The Fair Work Commission approved the agreement. The underpayment of each casual coalminer each year is $22,623. For FES, in Rockhampton, at a hearing of the inquiry into Labor’s closing loopholes bill we received evidence that the FES agreement 2018 pays casual employee Dwayne Arnold $54 an hour, well short of the $66.40 a casual should be paid. This agreement was made with the CFMEU. The Fair Work Commission signed off on the agreement. The underpayment of each casual coalminer each year is $27,563.

The WorkPac Coal Mining Agreement 2019 provides four different pay rates for a casual mine worker: between $42.99 and $51.38 an hour, depending on the day—all less than the hourly rate of a permanent worker. Calculations use the highest weekend rate even though this is more than what an average mine worker will get. It’s far short of the $66.40 that should be paid. The CFMEU negotiated and approved the agreement. The Fair Work Commission signed it. The yearly underpayment for a casual coalminer is $33,555. The Chandler Macleod agreement in 2020 pays a casual $48.85 an hour, far below the $66.40 that should be paid and less than the hourly rate of a permanent worker on the award. The CFMEU was a bargaining representative for the 2015 agreement, supported its approval and is a party to the 2020 agreement. The Fair Work Commission approved the agreement. The yearly underpayment per mine worker is $39,341.

Let’s go to the TESA group. The agreement in 2022 pays a casual $48.28 an hour, far below the $66.40 that should be paid and less than the hourly rate of a permanent worker on the award. The CFMEU is a party to the agreement. The Fair Work Commission approved it. The yearly underpayment per worker is $40,645. That’s almost $41,000 per year underpaid. Across these agreements a casual mineworker loses on average almost $33,000 every year compared to what they should be paid on the standard casual loading on the award rate.

One Nation challenges each of the parties in this scam. To the labour hire companies, the CFMEU union bosses and the Fair Work Commission, One Nation says: prove to us that our report is wrong. Don’t give us the excuse of the legal construct that you have created to enable and endorse the wage theft. Prove to us that the payments to the coal workers is higher than would be paid if the award allowed casual workers. Prove to us casuals are paid a loading. You will fail. Casuals are not paid a casual loading. It’s wage theft. It’s masterful wage theft. It’s hideous wage theft.

There are potentially tens of thousands of victim mineworkers in the history of dodgy agreements we can track over a decade. The total wage theft is massive. The failure of the Fair Work Commission and the Fair Work Ombudsman is shocking institutional failure. The fact they covered it up after we informed them is a disgraceful failure. It calls into question the entire structure, promise and integrity of the system in Australia that is supposed to protect Australian workers from underpayment, from wage theft.

Nothing in this bill will fix the absolute scandal One Nation has uncovered. Minister Burke’s bill aims to hide those responsible. Failure of the CFMEU bosses is even more obvious. We have a signed letter from the Hunter Valley CFMEU and labour hire company Chandler Macleod. In that letter, the CFMEU promises to never take action against Chandler Macleod for any breaches of worker entitlements. Our report details that the CFMEU has had commercial business dealings in the coal sector for decades. The CFMEU pretends to be a union. In fact, it is one of the employers, the bosses. It started labour hire casuals in the Hunter. It employed labour hire casuals. It started it. This theft must stop. CFMEU union bosses must be held to account for failing to represent workers, for betraying workers. The Fair Work Commission must be held to account for failing to stop dodgy enterprise agreements.

My amendment that I will be moving in the committee of the whole will ensure that those workers underpaid in the black coal industry will receive their fair pay entitlements in full. It adds transparency missing from the Fair Work Act and will ensure that the Fair Work Commission does its job, while the overprescriptive provisions of the Fair Work Act hide or ignore basic protections for workers. The Fair Work Commission has previously admitted that the Fair Work Act does not provide sufficient oversight of the Fair Work Commission when it fails to do its job.

One thrust of Minister Burke’s appalling bill is to cover up and bury Australia’s largest ever wage theft. Thousands of coalminers have each been underpaid on average around $33,000 per year because their union bosses did a shady deal with their employer. I have detailed proof of this. My amendment will put an end to these dodgy deals and enterprise agreements that pay much less than the award and it will ensure workers are reimbursed their stolen wages. Nothing in the closing loopholes No. 2 bill will hold the unions or the Fair Work Commission to account. Instead, Anthony Albanese’s solution is to give union bosses even more power with no accountability and no scrutiny. With what I have detailed in this speech, it’s obvious that that would be simply putting the fox in charge of the henhouse.

The changes contained in the so-called closing loopholes No. 2 bill will be far-reaching and have devastating impacts on the way almost every operation in Australia is forced to do business. We have had countless meetings with unions, small businesses, employees, workers, industry associations, law groups and more. The overarching message that all of them could agree with me on was that the Fair Work Act is simply too complicated for any worker or business to understand. The act is already a bulky 1,341 pages. It’s a sledgehammer that’s killing our economy. It’s so big it has to be split into three volumes so they can print it. It started 15 years ago as just a 652-page act. In the last five years alone, the Fair Work Act has increased by over 300 pages. What hope has someone who runs a bakery? What hope has an individual worker? The only ones who can keep up with all of the legislation changes and the complicated legal sections and find the loopholes are big corporations and big union bosses. They make the loopholes. I call them the industrial relations club. It includes big corporations, industrial relations consultants, lawyers and big union bosses.

Big corporations love a complex Fair Work Act because it stops small businesses who can’t figure out all the red tape from competing with them. Industrial relations lawyers love it because it keeps them in a job. Union bosses love it because it forces them into the conversation, whether the employees want them there or not. That’s why you hear so much support for this bill from the big money players. Genuine small-business owners who are too busy trying to run small operations and to pay their staff don’t have time to write parliamentary submissions or understand some amendments that may come into law. If this bill is passed, the 1,341-page Fair Work Act won’t get smaller and easier to understand. It will make the act longer, more complex, more prescriptive—the opposite of everything we need to fix industrial relations in this country. As a servant to the people of Queensland and Australia, I know only One Nation will fight to make sure workers receive their entitlements, and my amendment will do exactly that. We don’t need a so-called loopholes bill; we need enforcement of the award.

See all related material

Casual Coal Wage Theft

Related Parliamentary Speech and News Article

Labor are Not the Party of the Workers
The Decade-Long Scam Robbing Some of Our Miners
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ABC Interview: Union bosses neck deep in casual exploitation – Closing loopholes

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The union bosses claim that Labor’s latest Industrial Relations legislation will “close the loophole” of casual workers being paid less than permanents, especially in the mining sector.

You can’t step on site without a union enterprise bargaining agreement, so how are casual workers getting ripped off when they’re working under union negotiated agreements?

The answer is that some union bosses are getting kickbacks from labour hire companies in exchange for passing through dodgy agreements that allow casuals to be exploited.

The Fair Work Commission is meant to stop this, but they’re either asleep at the wheel or deliberately not doing their job.

Transcript

1 November 2023

Presenter

The Fair Work Legislation Amendment, known as the, “Closing Loopholes Bill,” held its hearings in Rockhampton this week. Announced by the federal government in September, the Closing Loopholes Bill aims to criminalise wage theft, introduce minimum standards for workers in the gig economy, close the forced permanent casual worker loophole, and close the labour hire loophole.

It’s all about that thing that we’ve been talking about for yonks, and that is, if you’re doing the same job as someone else, you should get the same pay. One Nation Senator Malcolm Roberts is in Rockhampton for the hearings, and he’s been raising the issue of the exploitation of the permanent casual workers in CQ miners for years. Frazer Pearce asked him if the proposed legislation would provide a better outcome for miners.

Malcolm Roberts

Look, my position on this Fair Work Act for a start, the current act as it stands, without Labor’s latest draft amendments, is 1,200 pages long, and they’re wanting to add another 800 pages. It already makes the workers vulnerable because there’s no way any single worker or small business can understand it; and it helps the IR club. All regulations in that help the major groups like the major banks, the big pharma, and the Industrial Relations Club.

That’s the lawyers, the Union bosses, the Industry Associations for multinational companies. It hurts the workers. I’ve seen that firsthand in Hunter, the Hunter Valley, and in Central Queensland. The second point I’d make is that we wouldn’t be having this inquiry if it wasn’t for the fact that the cross bench has moved it to extend the opportunity, to extend the reporting date from October through to next February. We would not be here listening to the views of industry unions and individual workers, if it wasn’t for the fact that we got an extension till next February.

The Labor Party voted against that extension. They don’t want to listen to people. We voted in favour of it. It’s a very important bill. It’s a huge bill. Big ramifications for workers as well as all players in the industry. The third point I’d make is that current employment in the coal industry at least, is that illegal employment of casual, supposedly casual, in coal is only possible, only possible, with a mining and energy union endorsed enterprise agreement.

We’ve seen that. I can go into detail if you need, but this is probably not the time. But the Mining Union in the Hunter Valley in particular, and to some extent in Central Queensland, has been passing enterprise agreements that do not protect the basic rights of workers. They don’t meet the award criteria as a basic minimum. They don’t meet the National Employment standards as a basic minimum.

They have been selling out workers in the coal industry and what we need for a solution is just a simple enforcement of the Fair Work Act. Now, early on in the proceedings and dealing with these issues, I proposed the, “Same work, same pay” bill. It’s very simple bill. But what I’ve since realised in doing more work, listening to miners, is that all that’s needed is to enforce the current Fair Work Act.

Frazer Pearce

What’s the level of, do you think of exploitation against these workers? Are you saying it’s widespread or it’s just isolated?

Malcolm Roberts

Yes, it’s widespread and it varies in severity. They’re paying well below the award and as I said, the award is the basic minimum. They have not done , they’ve not done the boot test, which is the, “better off overall test”. And that’s how these dodgy agreements have got through that are shafting coal miners in Central Queensland and the Hunter Valley. They have left out basic leave entitlements.

They don’t pay casual loading. Casuals are not legally allowed to be employed in the coal industry other than in a dodgy agreement, which is unlawful in itself; because they bypass the normal processes. People are missing out on leave entitlement. People are, as a result of being hired casual, short term, are threatened with dismissal at any time, people are afraid to raise safety incidents.

There’s a culture of fear there. There’s a culture of fear at many mines from people standing up and and afraid of standing up. There’s also been a lack of reporting of injuries. New South Wales in particular, we suspect also Queensland. There’s a, basically there’s a loss in some cases of workers insurance, workers’ compensation, accident pay. These are fundamental rights.

Frazer Pearce

Is this going to be a strong platform for you in the next election? Was it a vote winner for you in the last one?

Malcolm Roberts

We don’t do things to get votes. We do things because they’re right.

Presenter

That’s One Nation Senator, Malcolm Roberts having a chat with ABC Capricornia Frazer Pearce, talking about the closing loopholes bill. The hearing’s being held in Rockhampton at the moment. It’s a couple of minutes to eight.

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