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Fair Work Commission – Award Modernisation & Small Business

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The one thing we here again and again from small businesses is that Industrial Relations in this country is simply too confusing. You just about have to be a specialised lawyer to simply employ someone and be across all of the applicable legislation. The awards and language need to be made much simpler if small business has a hope of surviving. A fair day’s wage for a fair day’s work, and a way to punish dodgy employers who dishonestly try to break the rules: that should be the simple basics of industrial relations but we’ve complicated it far too much

Transcript

Senator Roberts.

[Roberts] Thank you Chair.

Thank you again for being here today. My questions cover a broad range. In the Fair Work Commission statement, dated 9th of April, 2021, regarding the Casual Terms Award reviewed 2021. This review must be completed by 27th of September, 2021. Are you on target for this date? And what has been identified as going over that date so far?

[Luby] Uh…

[Furlong] Ms. Luby

Thanks Mr. Furlong, I’ll take this one as well. Thanks Senator. Yes, the Fair Work Commission is definitely on target for that. That’s a date that was set in the statute and where we’re working towards that. So the Commission has issued a number of information papers outlining the range of casual terms that are found in Modern Awards. A full bench has been listed for hearing to consider a small group of Awards that cover either a large range of employees or have sort of quirky casual terms. And so that’ll be some, I guess some principles or precedent will be set by that full bench and then that will be applied to the remaining Modern Awards. So we’re working through that.

[Roberts] Okay.

With respect.

[Roberts] Thank you. Now from the Casual Terms Award Review 2021, at 12 and 13 of the Fair Work Commission Statement, I note that the Black Coal Mining Industry Award, MA000001, has not been included in the initial review. Yet, the background of that is that there’s a lot of confusion and uncertainty, in the black coal mining industry, because there was no provision in the award for casuals on production. But nonetheless, the Hunter Valley CFMEU did a deal to get that into the Enterprise Agreements. So that meant because there was no award provision, there was no, basically anybody under that EA was locked into permanent casual rort and they couldn’t get out. Now with the legislation that the government introduced in March, there is a pathway to permanent work for all casuals, but I think it needs to be clarified as quickly as possible. Many everyday Australians think it should have priority, the Black Coal Mining Award should have priority for definition of a casual mine production worker, given the harm it’s done to so many casual black coal miners, the lack of that definition. Can you ensure that this Award is reviewed promptly, please?

Senator, well, obviously it’s not for me to determine what order that the Awards are looked at. That’s a matter for the President and full bench presiding over that. I’d just like to clarify that the purpose of these proceedings are to determine whether the casual terms in the Awards are compliant or not contradictory with the terms that were introduced in the Supporting Employment Bill. It doesn’t go to whether there are entitlements to casual work in a particular Award. The issue of whether there should be the possibility of casual engagement under the Black Coal Award, was considered as part of the Four Yearly Review. And I think Mr. Furlong spoke into that previous estimates and it’s been covered in some of our Questions on Notice. That’s perhaps a different issue that could be raised at, and it could be raised at any time, if the parties were to seek to include a casual term for those production employees under the Black Coal Award.

[Roberts] Okay, so there’s nothing to stop a casual worker, who’s on permanent casual rort at the moment, thanks to Enterprise Agreements, from actually casual conversion, if they’re offered that conversion now?

No, I’m sorry Senator. There is no provision for casual employment for a production employee under the Black Coal Award.

So if I might. My understanding of the legislation it covers, because it’s been placed into National Employment Standards, it applies broader than all the Awards. So if someone is a casual, whether there’s an Award term for casuals or not, then the provisions within the Act will apply. So yes, there is a pathway to conversion because it’s been put into the National Employment Standards.

[Roberts] Okay, so thank you. So it overall

[Luby] Thank you, Mr. Hehir. Sorry.

[Roberts] It overrides the Award. So, people

[Luby] I apologise I apologise Senator for not getting that.

[Roberts] Yeah. So just to be clear Mr. Hehir, the people who are working as casuals, when the changes were made in March, will now have access to conversion once they’re offered?

So that’s my understanding because it’s been placed into the National Employment Standards. It expands beyond the award system and does apply more broadly.

[Roberts] Thank you. Because there are a lot of people cursing Enterprise Agreements that basically locked them into permanent casuals. How long after this review

[O’Neill] If I could get your attention Mr. Roberts. We asked a couple questions yesterday about these matters with the conversion. Under 15 employees, there will be a different

[Hehir] Thank you Senator

[O’Neill] situation.

[Hehir] O’Neill.

[O’Neill] But I guess one of the things that we got yesterday that’s important was it’s a test of reasonableness about whether those coal miners will actually be able to

[Roberts] Oh that test is

[O’Neill] Get

[Roberts] Yeah.

[O’Neill] the reasonableness

[Hehir] I think

[O’Neill] Test. Yep, yep.

[Hehir] reasonableness is the goal Senator O’Neill.

Yep.

[Hehir] Well I’m sure…

[O’Neill] Well it’s it’s gonna matter

[Hehir] Council, Senator Roberts.

[Roberts] In the Fair Work Commission Statement, dated 9th of April, 2021 regarding the Casual Terms Award Review 2021 at 12, I note the hesitancy regarding the definition of simple terms. Can you advise if your concerns over language will hold up the review process or have they been resolved?

No Senator. I think that we’re still on track to meet that deadline of the 27th of September.

[Roberts] Thank you. So we’ve been advocating for a fair go for Australian workers for a while now. Since the last Senate estimates round, can you tell me what due diligence has been put in place for Fair Work Commissioners to use to ensure that the boot analysis improves and that we do not see any more failures like the Chandler MacLeod Northern District of New South Wales Black Coal Mining Agreement of 2015? My understanding is that there was no Enterprise Agreement. The Chandler MacLeod initially employed miners under the Award, where there was no provision for casuals. Then they came up with the Enterprise Agreement and that breached the boot test from what we can work out. So we need to make sure that miners are protected in future with Enterprise Agreements that comply with the boot test. Can you tell me what’s being done like that to make sure there’s no more failures?

Just a couple of things on this, Senator. It’s actually been on notice and to a reasonable sort of extent, in relation to the decision about the Chandler MacLeod Agreement, it was approved by Senior Deputy President Harrison. And while the decision was short, she did go to the boot, the analysis of the boot. Ms. Luby can provide further and better detail on it. But every agreement application that is made to the Commission undergoes a very comprehensive, administrative checklist and was performed by specially skilled staff to ensure that the statutory requirements and pre-lodgement provisions are satisfied. And in terms of Ms. Luby saying that 95% of those applications are made and provided to members within five days, that is the process that is undertaking that first step.

[Roberts]Okay, I’m having a lot of trouble hearing you or understanding. Could you just explain, perhaps you could explain. I understand that you’ve given us a reassurance that the process is going to be followed. Could you please explain the boot analysis process? What are the main steps that the commission now undertakes and is it applied appropriately to each case?

The answer to that question is easy, yes. There’s a legislative checklist that is completed by as I said specially trained staff at the Commission. The template of that checklist is available on our website as well. If you’d like to have a look at it, we can certainly table it for you to have a look at. Bit it is a consistent checklist that is performed for every Enterprise Agreement application that is made.

[Roberts] Okay, thank you. I heard it clearly that time, so we’ll check that checklist ourself. We’ve heard that some union bosses are saying that it is the worker’s responsibility not the unions for what is put to the Commission in relation to Enterprise Agreements. Can you tell me then how you ensure that the workers themselves are happy with the Agreement? And what checks do you have to make sure that you’re satisfied that it’s the workers that are happy with the Enterprise Agreement?

Ms. Luby might want to add to this. Effectively there’s an access period, a statutory access period, Senator. That all, every employee who’s to be covered by that Enterprise Agreement has got access to that Agreement and that the employer has gone to reasonable lengths to explain the terms of the impact of that Enterprise Agreement. Ms. Luby would you like to add anything to that?

Sure, Mr. Furlong. So I guess there’s a few strands to it that the member who assesses the application will look at whether the terms and the effect of the terms of the Agreement were effectively explained to the employees. That’s an important test that’s been the subject of a number of federal court decisions and quite clearly laid out, in terms of the level of detail that must be explained to the employees to give them an opportunity to vote in an informed way. And then clearly there is the vote itself, so that there must be a majority of employees who vote for the agreement, who vote in favour of it. So they’re the primary tests.

[Roberts] Thank you.

We’re also quite transparent about the fact that an application has been made. So an employee will have an opportunity to make a submission to the Commission if they choose to do so.

[Roberts] So what recourse do workers have through the Commission or anywhere else, where a union boss fails to do what they promise to bargain for or where they might ignore workers’ needs in favour of their own interests? How do we make sure union bosses’ held accountable in this process for approving an EA, Enterprise Agreement?

I think Senator, the Commission, as I said, we are quite transparent in terms of when an application is lodged. It’s always published on our website immediately. So it’s available for the employees to see before the application is approved. And during that time it’s not uncommon for an employee to contact the Commission and their email or letter that they put in will be sent directly to the member who’s dealing with the application. So if they’ve raised any concerns that will be brought to the member’s attention.

[Roberts] So what you’re saying is, it seems reasonable to me. What you’re saying is that if an employee has concerns about the employer, or the union bosses, that they need to go and check themselves and take responsibility for the Enterprise Agreement themselves before they vote.

Um..

[Roberts] Vote, inform themselves

[Luby] I guess

[Roberts] So they vote in an informed way.

Yes, definitely and it’s the employer’s responsibility to inform them of the effect of the Agreement.

[Roberts] Thank you.

[Luby] So that’s an quite a proactive step that the employer needs to take.

[Roberts] Okay. Have they been

[Furlong] Senator may I also, sorry. I may also be of assistance. If an Agreement is reached, or past its normal expiry date, a party of the employees covered by that Enterprise Agreement, that is past its normal expiry date, can make an application for that Agreement to be terminated.

[Roberts] Okay, so it gets fairly complicated, doesn’t it, quickly? Have there been any cases regarding casual conversion put to the Commission for determination since the changes to the Fair Work Act earlier this year? And if so, how many And what have been the issues and the results?

Senator, I can take that one. There’s been one application so far, under the new section 66M, that application was an employee in the social and community services sector. It was only recently received and it’s been allocated to a member for hearing.

[Roberts] Okay, so one application for an appeal to conversion. Correct?

Yes.

[Roberts] Thank you.

That’s correct.

[Roberts] Now moving onto another topic. Have wage theft cases increased or decreased in the last 12 months?

That’s a matter for the Fair Work Ombudsman. I understand that they’re giving evidence later this evening.

[Roberts] Yes, we’ve got some questions for them. Thank you. Small business owners frequently find that the cost of being away from work to defend a sometimes spurious, unfair dismissal case or other complaint is too much and they end up paying “go away” money, which everyone knows about, to the employee. What is the Fair Work Commission doing, or what could you do, to help small businesses and small business employees, especially given that they’ve done the heavy lifting during the COVID restrictions and downturn? And many are finding it hard now, both employees and small businesses.

I’m not too sure. I understand that the notes of the term “go away” money, Senator. I can’t say that I necessarily agree with it. There are, we receive approximately 15,000 unfair dismissal applications every year. About 80% of those applications are resolved through agreement, through reconciliation process.

[Roberts] What percentage, sir? I’m sorry.

About 80%.

[Roberts] Thank you.

For those that and the vast majority of them are conducted online, so on the telephone, at a time that hopefully suits both of the parties through that process. And there is no obligation, for the parties, the small business that you’re talking about employers to the employees, and to the applicants to settle but if they arrive at a settlement through that process, then the matter is finalised. They can obviously decide not to settle at that point and have the matter dealt with by a member through arbitration.

[Roberts] Okay.

Ms. Carruthers, anything else you’d like to add to that?

Thank you, Mr. Furlong. Senator I might just add as a useful bit of context, that in about 2/3 of cases where money is paid, it’s for less than $6,000. So they are modest amounts of money that are paid when payments are made. And payments are made in around 80% of matters that are settled.

[Roberts] Yeah, my point is that the Fair Work Act, when it’s printed out is about that thick, laid on its side, it’s that thick. It is so damn complex that employees and employers, don’t know what, small business employers and employees, don’t know where they stand. Many employees right across industry, all sizes of companies, don’t know where they stand and that’s not good enough. So with that, there comes, it’s much easier for one to rort the other, employer to rort the employee, and also for people to avoid accountability. So the complexity of the Fair Work Act is really hindering employment and hindering the employer-employee relationship, which is the fundamental relationship on a workplace. So that’s why I’m asking that question because we know talking to small businesses, listening to them, that they are not hiring people at times because of the complexity and their fear of what will happen. And we’ve got to remove that.

Senator there is a part of your question that we didn’t get to is about what we can do or what we are doing. There are a couple of very large projects that are underway at the moment to improve the services of the Commission. One of them, and it’s a very large project, is the redevelopment of our website. And at the moment, the language used on our website is, it’s technical. One of the major change, one of the major improvements, is there’s going to be, the new website is going to be written in very accessible, plain language. We’re aiming for someone with a year level literacy of eight to 10. We’ve also just kicked off a forms redevelopment project that applies or that will be applying data and behavioural insights, so behavioural economic insights. To ensure that the regulatory burden associated with making these applications and that people are informed, as best as they possibly can be, are a part of the process. So we are looking at ways that we can improve our service delivery and we’re acting on them at the moment.

[Roberts] Well, thank you. That’s encouraging. Fundamentally though, the Fair Work Act is highly complex and it doesn’t matter how we dress it up in practical language, it’s still going to be complex. That makes it difficult for both employees and employers to know what they’re accountable for and what their entitlements are. I appreciate you raising that. Thank you. Last questions on just another topic here. Can you please undertake to inform on the status of the Award Modernisation process that you’re undertaking?

You’re referring to the Four Yearly Review of Modern Award are you Senator?

[Roberts] Yes.

Okay. Do you have any questions in particular about the review? It’s a very, very large piece of work.

[Roberts] Is it progressing on schedule?

It is. It’s very close to being finalised. There are a number of common issues and Ms. Luby can talk to that for today’s, but one of the major initiatives that’s still being progressed is the plain language writing or rewriting of a number of Awards that’ve got high, high world reliance. So those Awards that have got a lot of employees covered by them or relying on them to set out their terms and conditions.

[Roberts] So…

Ms. Luby, do you have anything else to add to that?

Certainly. Thanks, Mr. Furlong. Thanks Senator. So the Four Yearly Review has, as you know been going on for a number of years. In terms of the Award specific reviews, there’s only seven Awards that are outstanding of the 122 that we started with. There are five of those Awards that are undergoing what we’re referring to as a plain language review, which goes to the point you were just making, and Mr. Furlong was making, about trying to make the terminology less complex. The others are the Nurse’s Award which is probably, it’s very close to completion. We’re hoping it will be completed by the end of July. A final draught has been published of that Award. And it’s just out for comment to ensure that there are no technical or drafting issues that have been incorporated in it. And the final other Award is the Black Coal Mining Award, where there’s one issue in relation to the interaction between shift work and weekend work penalties and the casual loading for staff employees. There was a conference about that yesterday but I understand the parties couldn’t come to an agreed position, so there’s a further conference scheduled in a couple of weeks.

[Roberts] Okay

So they’re the Award specific issues and then there are a number of common issues across the Awards that have progressed. But again, there’s only a small number of those that are left of the vast number of reviews that were undertaken over the last six years.

[Roberts] So while I see it as tinkering, it is a good step for having modernisation and simplification of the language in particular. So everyone knows where they stand.

Certainly. Senator. We agree.

[Roberts] Thank you. Thank you, Chair.

[Chair] Thank you, Senator Ro…

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The Great IR Debate – 2SM with Marcus Paul and Joel Fitzgibbon

I had a debate with Joel Fitzgibbon last week about Industrial Relations and what One Nation has done to improve certainty and cut administrative burdens for small businesses.

Transcript

[Marcus Paul] All right now, this was something different this morning. We normally on a Thursdays, you know catch up with One Nation’s Malcolm Roberts. Now Malcolm has been targeted by Labor MP Joel Fitzgibbon. Joel, who sits on the back bench these days. Joel’s always stuck between a rock and a hard place. I think when you’ve got Labor, possibly going down a probably a far greener future, than what some would like. And there are many suggesting that Labor have forgotten about the grassroots of the party and that is looking after coal miners and workers. Anyway, the story, and I think it was in the Herald up there in Newcastle, “Miner shaft the hunter coal industry in uproar over One Nation backing the government’s controversial IR bills” Both the gentlemen in question are on the programme. Good morning to you. First of all, Joel.

[Joel Fitzgibbon] Good morning, Marcus

[Marcus] And Malcolm Roberts from One Nation morning Malcolm?

[Malcolm Roberts] Good day Marcus. Good morning.

[Marcus] All right. Now gentlemen.

[Malcolm] Good morning Joel

[Joel] Good morning Malcolm.

[Marcus] All right. Class action lawyers and the CFMEU are considering the possibility of a high court challenge to the gutted IR bill that passed through parliament on Monday with its clauses on casual employment. The only sections to survive. Now Joel to you first you’ve come out in the press and it’s been reported basically saying that Scott Morrison has no more reliable vote in the Senate. And that of One Nation’s Malcolm Roberts, you say it’s a slap in the face for coal miners in the Hunter. Joel?

[Joel] Well, that’s true Marcus and it’s not just Joel Fitzgibbon saying it. It’s the Coal Miners Union and it’s coal miners themselves, including Mr. Simon Turner, who Malcolm has been using as a very fine example of those who’ve been disadvantaged by the law as it stands but Malcolm has been using as a person. He says he’s been trying to help but Simon Turner himself today is in the financial review saying that he’s disgusted and feels betrayed by One Nation’s actions in the Senate in supporting this industrial relation bill which is not going to make it better for coal miners. It’s going to make it worse for our coal miners.

[Marcus] All right. Malcolm ,respond to that.

[Malcolm] Sure. The greens have no better and more reliable asset in the in the parliament than the labor party. And Joel is wearing the consequences of that because they’ve lost touch with the working workers all around the country, lost touch with small business. And what we’re doing here is we’re protecting workers. We’re protecting small business. Now, Simon Turner, I’ve had a wonderful relationship with him. He is a wonderful person. Yet I recognise he’s under enormous pressure. He went silent on us a few weeks ago. Silent on a lot of people in the Hunter, under a lot of pressure. We then kept working for him in the parliament and in public, and he was energised again. And we actually we actually drove a solution for him, a settlement that’s that’s that’s given him a substantial benefit.

[Marcus] I think we’ve lost. Hang on for a second Malcolm. I think we might’ve lost Joel there. We might’ve lost Joel. We’ll just go back to, is that you you still? No, we’ve lost them both. All right. For some reason, Justin we’ve lost them. So we’ll take a break and come back to that.

SM super network news, news, wake up, get up, Marcus Paul in the morning.

[Marcus] All right? It’s quarter to eight. My apologies to, to our listeners. So obviously I think Joel’s calling from the Hunter this morning and there’s obviously a lot of water in the area. I think we’ve got both gentlemen back. Joel, are you there?

[Joel] Yes I’m here Marcus

[Marcus] Perfect. And Malcolm you’re back.

[Malcolm] Yes, mate. Ready to go?

[Marcus] All right. So, I think we were halfway between what you were responding with Malcolm. So please go ahead.

[Malcolm] Yes. You know, it’s very important to understand that Simon Turner has been bashed around for six years by the CFMEU in the Hunter Valley. And I always say Hunter Valley CFMEU because the rest of the union is fine, but Simon tells me and he’s said it very emotionally and strongly. The Hunter Valley CFMEU is disgraceful. He dislikes Joel intensely because he’s written to Joel six times to help him with these problems. And I can get through the problems in a little while but six times never once has Joel responded. I’ve written to Joel personally in parliament and asked him to get involved, come and understand the issues, refuse to even acknowledge me. Plus Joel has now misrepresented this situation several times. I don’t know why he keeps hiding what the Hunter Valley CFMEU has done.

[Marcus] All right. What has the Hunter Valley CFMEU done? Malcolm

[Malcolm] Very simple. They’ve gutted mining in the Hunter Valley because first of all, the Hunter Valley, the award for the black coal mining industry does not include, it was signed in 2010, does not include casuals. Now the union, what they did they used to be a hirer of casuals. They used to be a Labor hire firm themselves the Hunter Valley CFMEU, they sold that, made a profit but they stayed in the business. And by made the enterprise agreements that cut out the award, cut out award provisions. They created a casual within the enterprise agreement. That’s the first thing they did. now because that went against the award. There was no casual conversion. The union itself created casuals. The union itself locked casuals into permanent casualization. And not only that, they undermined the pay of these casuals by creating a category that was 40% under…

[Marcus] All right.

[Malcolm] The same, the enterprise agreement unbacked by the owners on the same mine, same job, 40% less pay.

[Marcus] Okay. Joel, your response to that?

[Joel] Well, that’s just all rubbish. Marcus, why would I respond to Malcolm? Malcolm Roberts’ calls for me to work with him, when I know that he’s walking both sides of the street as proven with his vote in the Senate last week. And I did respond to Simon Turner and who, by the way he’s not a constituent of mine. That doesn’t matter because I’m here to help anyone that I can. But all this is very simple. The courts have ruled in both the skene case and confirmed, and the rossato case, that the mining companies have been doing the wrong thing by mine workers, paying people different pay rights for the same job. By using the usual use of, by using casualization. Now these court cases effectively representing the situation.

[Marcus] Hang on Malcolm, just let him finish.

[Joel] And now the decision and Malcolm Roberts voted for the bill which overturns effectively the court’s decision. It’s as simple as that Marcus.

[Marcus] All right. So just, just in a nutshell, in relation to what it is before the government, at the moment in relation to the industrial relations bill your main concerns in a nutshell, Joel please about why Malcolm has sided with the government on this.

[Joel] My main concern of course, is that after the union spent a lot of money representing coal miners in the courts. To fix this problem, Malcolm has now used his vote in the Senate to back a government bill which now effectively nullifies the decision of the court putting our coal miners back in the position where we started. And that’s a slap in the face for our coal miners. Not my words, the words of the coal mining union. And of course, Mr. Simon Turner, who Malcolm has purported to represent but now says he feels betrayed by Malcolm and One Nation.

[Marcus] All right Malcolm.

[Malcolm] Well, it’s very simple. The coal mining union in the Hunter Valley, actually undermined the workers award and the workers’ entitlements. They signed off on the enterprise agreement. Joel cannot run away from that. That is fact. They’ve done it repeatedly. 300, more than 300 enterprise agreements that the union has signed. That’s the first thing, the second thing is that the rossato case did not, is not going to be affected. Cause the decision is not going to be affected by this legislation that was passed last week with our support, what we’ve done. I made sure that we protected mine workers. That was the first thing I did. Then the second thing I did… we even called the class action lawyer who’s leading Simon’s class action to get his take on it. What we also did then was we, we understood that the legislation cannot cannot reverse the the written entitlements of miners at all. It can use an offset, which is, which is absolutely fair. We can’t have people being paid for entitlements and then get those same entitlements back. So that’s absolutely fair. And then you get the other thing that drove us was that small business is going to be gutted by this, because what will happen is, small businesses will have to pay twice for basic entitlements that are already protected in awards. Most of the awards in Australia, all but 12 have these provisions already in them.

[Marcus] All right. Joel?

[Joel] Well, what really disappoints me is that the Senator, the good Senator, seems to have suggested that the only reason Simon Turner the person he purports to represent has turned on him is because he’s been intimidated by the union. That’s a pretty, no that’d be charged. So I said that, your listeners either believe me, the union who represents the workers and Simon Turner who Malcolm purported to represent that now feels betrayed or they believe Senator Roberts. And I’m pretty confident Marcus your listeners will conclude that we are on the side of the workers. Malcolm Roberts has betrayed them and they should not trust him in the future.

[Marcus] You see, the big concern is that every new job could be casual. I mean, that was the main concern on the issue. What we’ll do is I’ll let both of you gentlemen have another couple of minutes each just to finish. So we’ll go first to you, Malcolm for your final comments.

[Malcolm] Well, they won’t betray miners because what’s actually happened is this bill that we supported with some amendments to protect workers further and protects small business further actually gives people a pathway to permanent employment. The union sold out the workers in the Hunter Valley because they eliminated any chance of that because they bodgied up an enterprise agreement in an award under an award that didn’t have a classification. So what means, what that means is that people under the EA are locked into lower pay rates than their work mates doing the same job next to them. Thanks to the union. They’re locked into being a permanent casual thanks to the union. And we also know that small business cannot afford the double dipping. So what we’ve, which is when a person gets paid for in lieu of his entitlements and then later claims those entitlements. All that’s happening here is that that is clarified now. So the small business can be protected. We’ve had many, many compliments from from small businesses, small business organisations because we have saved the day. We need some certainty here. We need some, some confidence back in business and back in and workers protections. And that’s what we’ve done. We’ve ensured workers are protected. We’ve put in extra provisions to make sure that we’ve also put in the bill, legislated in the bill is a 12 month review to see if there are any unintended consequences but we’ve also made detailed changes within that. And there’d be more coming out from us in a in a few weeks time, because we are going to be chasing BHP. We have chase BHP. We have chased Chandler McCloud. We’ve chased the Hunter Valley CFMEU and Joel is sat on his backside doing nothing. Stuart Bonds has been to Canberra more times with Simon Turner and with us and advocating for, for Simon in the in the parliament and in in my office than Joel has ever done.

[Marcus] All right. So Joel, to finish your points.

[Joel] Well, Malcolm can check the parliamentary hansard and my speeches in the parliament. Marcus I’ve been very active on this subject, but look I started by saying Malcolm’s been walking both sides of the street and listen to what he just said. He kept mentioning business business business. Now this is what he’s trying to do. He’s trying to stand, straddle this divide. The fact here is that a number of workers have signed enterprise agreements non-union enterprise agreements which we’re paying them less than the union members working alongside them, notwithstanding including Simon Turner. The fact that they weren’t union members the union took this to court to get it fixed because it believes it was unfair that people should be doing the same job and getting different. Pay rights. The court fixed the problem. The Morrison government didn’t like the outcomes. So they legislated to overrule the courts. And that bill on that bill used to overrule. The courts, Malcolm Turnbull put his hand. high, not Malcolm Turnbull sorry. Malcolm Roberts put his hand high in the air in the Australian Senate and said, yep. I’m with you Scott Morrison. And in doing so he did over the miners. And that’s what Simon Turner is saying in the Australian financial review today.

[Marcus] All right, gentlemen, thank you both for joining us. It’s been interesting. Let’s do this again sometime.

[Malcolm] Oh, Marcus, by the way the union signed the enterprise agreement.

[Marcus] All right, gentlemen. Thank you. Have a wonderful day. Joel Fitzgibbon., Hunter MP, Malcolm Roberts, Senator.

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Why are casual coal miners getting ripped off? Coal LSL at Senate Estimates

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Despite possibly tipping more into their entitlements from working more hours, casual miners pull out less on the other end from the entitlements pool at Coal LSL. I also queried $33 million dollars that has been paid out at Coal LSL with no description of why.

If that wasn’t enough, we also believe there are money laundering risks due to insufficient record keeping and the amount of money being held by Coal LSL. The entire model and governance needs a root and branch review as it is totally inadequate.

Transcript

[Chair]

Senator Roberts.

[Malcolm Roberts]

Thank you, Chair. And thank you for coming again. First of all, The Coal LSL Scheme. The Coal Long Service Leave Scheme was established specifically for the Coal Mining Sector. Is that correct?

[Witness]

That’s correct. Back in 1949, The portable long service leave scheme was established.

[Malcolm Roberts]

Thank you. The objective of this scheme is to provide long service leave for employees in the Coal Mining Sector. Is that correct?

[Witness]

For eligible employees who are defined under the Admin Act? Yes.

[Malcolm Roberts]

The scheme provides the ability for employees to request to be paid extra amounts directly rather than contributing into the scheme. If they do this, it immediately becomes their money rather than going into the pool funded Coal LSL. Is that correct?

[Witness]

You’re referring to the clause on Waiver Agreements,

[Malcolm Roberts]

Yes

[Witness]

Senator, I believe and that is underpinned by a separate regulation, but yes Waiver Agreements are enabled under the legislation.

[Malcolm Roberts]

Thank you. Coal LSL has a guidance note explaining how it calculates the “levies” on the eligible wages for coal employees. It provides two formulas; one for casual employees and one for permanent employees. Casual employees are required to pay the levy on all hours worked. Whereas permanent employees contribute based on a maximum of 35 hours per week. Is that correct?

[Witness]

It’s the employers who are paying Senator, but 3B under the Payroll Levy Collection Act does outline how the different calculations are to be performed by the employer. And they are linked to the employees classification, employment classification but the employer is paying that payroll levy.

[Malcolm Roberts]

So, a casual employee though, accept that so casual employee working the same weekly shifts as a permanent employee pays in more because they contribute on all hours worked whereas a permanent pays not more than for 35 hours. Is that correct?

[Witness]

No, the employer is paying the levy and it is a different calculation. So it is linked to different assessment of hours. That’s correct, but the formula is different between the two classifications.

[Malcolm Roberts]

When it comes to a crowing and taking long service leave casuals and permanents are treated differently again. Permanents automatically get long service leave accrued for the maximum of 35 hours , regardless of the hours worked in that week. But the casual only gets it for the actual hours worked in a week. If the roster patterns of a casual don’t fall neatly in a week, there is the potential for them to work the same shift pattern as a permanent employee yet accrue less entitlement than a permanent on the same shift. Is that correct?

[Witness]

Correct. In the sense we’re relying on the hours reported for the employees working week to inform the accrual calculation for the casual employee. That’s correct.

[Malcolm Roberts]

So casual employees working in the coal mining sector can work the same weekly shifts as a permanent employee, but pay more in levies to Coal LSL through their employer and get a lower accrual of long service leave than a permanent employee. This is despite working the same shifts. They pay in more, their employer pays in more on their behalf but they get less out of it. Is that a fair outcome?

[Witness]

I don’t agree that the employers paying more in that scenario Senator, because they are very different formulas that are linked to the wages that are paid for each in different employee. So I don’t agree that is as simple as the way it’s been described. And I’d also say for the casual who is working the 35 hour week, they will accrue the same entitlement as the full-time equivalent. So if they are working the 35 hour week and the employer reports those hours they’ll accrue that full-time equivalent.

[Malcolm Roberts]

A lot of them are not working that 35 hour week, if they’re on production, they’re on a roster.

[Witness]

We’re relying on the hours and yeah

[Malcolm Roberts]

Yeah, we’ve seen what happens with that relying on employers hours. This is in the past, this is all based on a Coal LSL guidance note, which interprets the act. Given the potential for such an inequitable outcome, is it possible that your interpretation is wrong?

[Witness]

No, I’m confident our interpretations right. It’s been through legal channels over the years and that guidance note is verified. It has not been tested in a court as such but it has been formulated based on legal interpretation.

[Malcolm Roberts]

When the coal, this is the last question on this thread. I’ve got some more on others. When the coal long service leave system was established for coal mine workers. Do you think that it was intended to make one employee through their employer pay so much more and get less?

[Witness]

I don’t agree, that it’s as simple as that Senator.

[Malcolm Roberts]

Sorry.

[Witness]

Okay. The intent of the scheme coming back to the intent of a long service leave scheme is for the employee to access a benefit when they meet certain milestones. So i think the intent of the scheme is structured correctly and that all workers should be able to access an equivalent entitlement when they meet the AES qualifying service milestone.

[Malcolm Roberts]

Okay. So moving on to another topic, do you ensure that casuals are made aware that they do not have to pay contributions paid to coal LSL and that they may be able to X to be paid the approximate 2% cash in hand, so they can elect to take the cash instead of having it accumulated.

[Witness]

Colleague will talk to the detail their regs of a Waiver Agreement.

So Peter Kembrey, General Manager legal calls Hill. Senator there is information on our website in regard to the Waiver Agreements. I think it is important to point out that Waiver Agreements are only available for a small category of employees. So they’ve targeted. The intent of that is for people coming to either on high incomes or coming to the end of over 55 that already have the 8 years qualifying service or have no qualifying service to be able to redirect those contributions as you say, to other forms of savings whether that be superannuation, which is the commonly what we see is, is the conversation that we have with people that are interested in that. So most people in this game, can’t quote don’t count

[Malcolm Roberts]

But those who are eligible for the Waiver, are they notified?

[Witness]

Well, they are not notified individually but there is information in respect of

[Malcolm Roberts]

So they’re not notified. They could have to go to a website, which they might not know about.

[Witness]

Senator. We don’t know the ages of people necessarily who are in the fund.

[Malcolm Roberts]

No, but no employers do it either. Is that right?

[Witness]

I can’t speak for what employers do, but

[Malcolm Roberts]

Do you tell the employers that they need to do it?

[Witness]

Well, we don’t instruct the employers to do it but we certainly make it clear to employees that information in regard to aspects of the fund are contained on the website. There is information in regard to Waiver Agreements, better than say the waiver Agreements. There’s no many people in the fund or a significant minority of people in the fund can actually apply for these.

[Malcolm Roberts]

From the research we’ve done into Coal LSL it would seem that when an employer registers an employee with Coal LSL, that Coal LSL just asks for a name and a date of birth. Does this mean that because you did not take a Tax file number that you are not able to verify that people named are indeed real people that they exist. What do you do to verify they are real people and provide me with a summary of the last three occasions when this was done.

[Witness]

Sorry. The last three occasions we verified people

[Malcolm Roberts]

When you verified someone was done.What was real?

[Witness]

My understanding of the process is when a new entrant comes. Firstly, I say, we are not authorised to collect tax file numbers. That would mean amendments in legislations. So it’s not it.

[Malcolm Roberts]

Is anyone raised that with the government?

[Witness]

It’s been raised, but like, it’s there’s very few entities that can do that. But, so we don’t collect tax file numbers at this point in time.

[Malcolm Roberts]

But you collect names and dates?

[Witness]

We collect names and dates of birth.

[Malcolm Roberts]

And you collect money

[Witness]

And we collect money, Yes. We collect money and we keep records of entitlements but we write to those new entrants into the scheme at the time that they appear on it. So we get their addresses, we contact them and we follow them up in regard to this is what we’ve been told, are these details correct? Particularly in cases where there might be employers registering them in registering them in regard to historical service. So we asked, we say this is what the records we’ve been given. Can you verify these are correct.

[Malcolm Roberts]

So let me continue then. Also from the research we have done, I was concerned to see reference to approximately $33 million in levy reimbursements made to entities with a statement beside it saying, “not readily available”. This is a lot of money to have no detail attached to it. Can you explain what’s happening. And I can give you a reference in the report, given last Senate estimates. The report was EEC-BE20-82, pages 121-144. As you provided to me.

[Witness]

Senator, the further detail that we provided in that written response to the question on notice was to explain why that reference was associated to a number of the transactions. So in the Excel spreadsheet that were provided to you which was data from July 17 to June, 2020 had 5,594 lines. And there was a 100 or 407 odd lines, which had that category. The reason being we insourced our operations in 2017. So when we took over the administration from the previous administrator that resulted in us implementing a new financial system. So all the records live in the administration system going back to day one. So all the historical records reside there which is the employees entitlements, the money in and the money out. We, and in our response to we said it would be an unreasonable division of resources to be able to extract that data because we were only migrating it to our new finance system from 2017 where we’re able to readily access the data through reporting frameworks that had been established. So the period of three months where we had that description that we explained in our response to the QON that was that migration stage. And all of the detail, I’ll say migration hadn’t been established but I do assure you, it will always residing in the administration system but it would be unreasonable allocation of time and money to be able to put a reporting framework around that, to extract that data, as you requested.

[Malcolm Roberts]

So you don’t know about it then. You don’t know

[Witness]

No, we do know about it

[Malcolm Roberts]

But you know about it but you don’t know the identities.

[Witness]

No, we do. It lives in the administration system and should we receive inquiries at a transactional level, We will investigate or access that transaction to pay but to pull thousands, hundreds of thousands of lines of records out of that system, establish the reporting framework to extract that in the timeframe that was needed. It was an unreasonable allocation of resources to extract that. And we’ve provided you with the information that was readily available.

[Malcolm Roberts]

Thank you. I note from records provided that registered and unregistered employers, make long service leave contributions. And then in some instances they claim the funds back. Yet I’ve seen no evidence whether these bulk refunds made by Coal LSL are linked to a list of employees or that if employees are referred to that, they are real people. To me, this leaves open the question as to whether the coal LSL could leave themselves open to claims of potential money laundering. Do you ensure that the money laundering does not happen? And if so, how, how do you do it?

[Witness]

It would be highly unlikely for money laundering to be existing in the fund. For an employer to come into this scheme, through a registration project process, we verify their details through ASIC, ABN and verify their bank banking details. So their, the source information that we rely on to ascertain that the employer or the entity is a found entity. The employer would then need to have an employee in their records for years of years of service and paying a levy for that period in order to see that that employee meets the qualifying service provisions and then ultimately access any reimbursement from the fund should that employee access their long service leave. So it is, there are many hurdles that an employer would need to jump through over a very extended timeline in order to launder money through our fund. So first up, Senator Roberts look at the time, we’ve got a minute left. So the one very quick question or we have to ask you to put the rest on notice, please.

[Malcolm Roberts]

How many board members or members of the bodies they represent have been on either registered or unregistered companies that made contributions and or received reimbursements from Coal LSL? Could you please provide a list of them and the entity names and the dollar value of all the transactions.

[Witness]

The current directors?

[Malcolm Roberts]

Yes.

[Witness]

Senator,

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Why didn’t Fair Work raise the alarm on casuals? Fair Work Ombudsman at Senate Estimates

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In Senate Estimates today, I continued to pursue the case to support casual coal production workers. I showed the FWO that the hunter valley CFMEU bosses sold out casual mine workers and left them significantly underpaid and unsupported. This union ignored casuals and trapped them in the “permanent casual trap”

The FWO made us all aware that the Fair Work Commission has known about the problem with the lack of a definition for casuals that left them fall through cracks in the IR and WH&S systems. Yet they have done nothing. We stood up for small business and successfully put up and amendment to enable a simpler system for casual conversion for small business.

Transcript

[Chair]

Senator O’Neill could you at least let Senator Roberts.

[Malcolm Roberts]

Thank you all for being here today. First question, in correspondence between myself and the Fair Work Ombudsman, I was disappointed to hear your office repeatedly told casual coal miners that you could not or would not help them, even though their abuses were many. This was because you said that casual black coal miners did not exist, and there’s no provision for them in the award. At this point, the Ombudsman became a part of the problem and not a part of the solution. Why did you not report this gap to the minister or an authority that could fix it? And what can you do to ensure that these sort of abuses by your office and other instrumentalities like Coal LSL do not happen again?

[Ms Parker]

So, senator, we are able to provide basic information around black coal long service leave provision. Is that what we’re taking about?

[Malcolm Roberts]

No we’re talking about the-

[Ms Parker]

Now, my apologies. We’re talking about-

[Malcolm Roberts]

This was about why you would not be able to help them, help black coal mine casual,

[Senator Sandra] Yeah. working casuals in the black coal industry.

[Ms Parker]

Okay. So, has anyone got the… All right then we’ll have a look at… So, in terms of casualization there’s a couple of things happening with this, we’ve been monitoring workpac and rosatto I guess what I would say is we have to… our job is to enforce and apply the law as it stands. And I believe Senator that we have done a lot of work in regards to your requests for assistance, your complaints about the enterprise agreement, the award, the conflict as you say, between the two. And I understand what you have been advised is that you know, once an enterprise agreement is in place it doesn’t have to align directly with the award. So, there’s a contradiction between those two things?

[Malcolm Roberts]

Yeah. I guess the heart of my question really goes to, who did you inform? Which ministers did you inform? Which agencies responsible did you inform? Because this was a problem where there’s no classification of casual in the Black Coal Mining Industry Award. Yet the union did a deal with the employer, that vastly decreased pay rates, substantially decreased pay rates, and enabled casuals with no provision for conversion. So, the union basically locked them into casualization forever.

[Ms Parker]

So, Senator the-

[Malcolm Roberts]

So, they were significant problems and I wanna know, what mechanism you either didn’t follow or you need in the future to be given power so, that you can raise these issues with the relevant authorities.

[Ms Parker]

So, senator the relevant authority is the Fair Work Commission, which ratified the enterprise agreement.

[Malcolm Roberts]

That’s true, it did ratify it.

[Ms Parker]

Well, we he had nothing to do with that.

[Malcolm Roberts]

But Mr. Turner and others raised the issue with you that they were locked in by their union which gave them a substandard deal, and the Fair Work Commission approved it. Mr. Turner originally was employed as a casual under the Black Coal Mining Industry Award even though there’s no classification for it. Then he went to what looks to be a dodgy enterprise agreement that the union signed off and the Fair Work Commission signed off.

[Ms Parker]

Quite possibly. So, we regulate agreements and awards that the Fair Work Commission approves, we have no responsibility to alter them or amend them, that’s not our role, not our tribunal.

[Malcolm Roberts]

But if an employee comes to you and says, I’ve got this problem, can you at the moment go to another group, say, look we can’t fix this because it’s sort of locked in by the union and the Fair Work Commission, but this is a problem that needs to be fixed. The casual problem it could have been fixed years ago, should have been fixed.

[Ms Parker]

So, the Fair Work Commission is aware of this issue, yes.

[Malcolm Roberts]

So that’s what you do? You make-

[Ms Parker]

Well, we have no other option because we are there to regulate an agreement that is published, agreed by the Fair Work Commission, or the award.

[Malcolm Roberts]

So, thank you for clarifying. So, if someone was not aware in the Fair Work Commission, you would make them aware? But in this case they were aware.

[Ms Parker]

We do share information with the Fair Work Commission. They are aware of this issue because certainly it’s been running for quite some time.

[Malcolm Roberts]

You’re right it has.

Okay, let’s move on. You may soon be required to prepare, to distribute and to build awareness in regard to the Casual Employment Information Statement, associated with the recent bill that passed, including employment conditions and to educate both business and employees on their rights and obligations. Please detail what you will be doing to ensure integrity and awareness in regard to this information sheet. And also what systems and support will be in place to ensure prompt, clear and informative support for both business and employees?

[Ms Parker]

Certainly. Chief Counsel Financier you can look in it.

[Jeremy O’Sullivan]

Senator, Jeremy O’Sullivan, Chief Counsel Fair Work Ombudsman. You’re quite right. When the bill that’s just passed the parliament, receives Royal Assent, I think there’ll be a new Section 125 capital A that will require the Fair Work Ombudsman to draught and prepare and Gazette a Casual Employee Information Statement. That work is well underway. There’s some consultation requirements because that statement is required to just canvas some of the work of the Fair Work Commission. So, under I think it’s Section 682 sub 2 we’re required to just consult on with the Fair Work Commission on that, that’s occurring now. And so I’m very confident that we will be able to publish that statement as required by the legislation when it comes into force, shortly after it comes into force. We’re also consulting with the department, obviously is it’s novel legislation, and we will be there for appropriate to make sure that the department with the administrative responsibility for the act is comfortable with if you like, giving effect to this new provision.

[Malcolm Roberts]

So, that’ll give you the instructions in a way?

[Jeremy O’Sullivan]

No, that… Sorry, I’m sorry for interrupting I shouldn’t have done that,

[Malcolm Roberts]

No, that’s fine.

[Jeremy O’Sullivan]

But no it’s up to us to form our view on the crick content but obviously we consult with the department. And we are obliged to consult with the Fair Work Commission under the Fair Work Act as it is now.

[Malcolm Roberts]

And then you check with them to make sure the interpretation is correct?

[Jeremy O’Sullivan]

Yeah. Yeah. I mean-

[Malcolm Roberts]

Okay. That’s good.

[Jeremy O’Sullivan]

Well, in as much as… So, I don’t wanna act like… sound like we’re acting on dictation, we have to form our own view and we’re responsible, and as Ms. Parker is often reminds me, unfortunately, the buck stops with her, so, we just make sure… I just make sure that we give our advice so that we’re comfortable. Now, there is a mechanism under the legislation for us to update or change the Information Statement as required. And of course now, if any matters came to light that we thought it could be improved, and just like we do with our Fair Work Information Statement, we improve. In particularly for readability, ’cause this is not to be a document that could only be-

[Malcolm Roberts]

Just a living document.

[Jeremy O’Sullivan]

Yeah. That’s okay a good point.

[Malcolm Roberts]

Okay. Will you be doing a separate sheet to ensure that small business employers and employees are aware of the requirement that casual employees working in small businesses have a right to apply for conversion?

[Jeremy O’Sullivan]

Indeed. We’re also preparing if you like, complimentary web content to make sure that basically you know, we’re providing a one-stop shop for everything you need to know about this new statement. We’re afraid to ask if I can be of burden, but you know that’s exactly… we’re making sure and striving to make sure that it’s readily accessible and it’s ready to go out as soon as, you know, the legislation receives Royal Assent.

[Malcolm Roberts]

After what I’ve learned in the Hunter in the last two years, what more can the Fair Work Ombudsman do to support casual coal employee… casual employees, especially in regard to both understanding the impact of the recent change and on their right to casual conversion? How much is being invested to ensure that there is a helpline and or accessible information available in regard to casual rights?

[Jeremy O’Sullivan]

It’s an excellent question. I was gonna say that this new legislation provides both an opportunity and a challenge for us to deliver on that. So, the proof will be in the pudding.

[Malcolm Roberts]

And there will be arguments. You anticipate there will be arguments with people in larger businesses denied conversion and then the employee wanting to come back later and saying that the denial was not for sound reasons?

And that will be the jurisdiction of the Fair Work Commission,

[Jeremy O’Sullivan]

Right.

[Malcolm Roberts]

Yeah. But you’ll be in touch with them?

[Ms Parker]

I might just clarify to that a little bit. So, the initial conciliation will be the Fair Work Commission, but any disputes we know would go for the small claims court of the Federal Court.

[Malcolm Roberts]

Thank you.

[Jeremy O’Sullivan]

You’re quite correct mam, thanks.

[Malcolm Roberts]

Will Fair Work Ombudsman inspectors be able to help small businesses with things such as, coaching and support? Because it was small business who did most of the heavy lifting during COVID-19 restrictions imposed by governments around the country. And we want to ensure that they’re not burdened with more red tape and unnecessary administrative costs.

[Ms Parker]

The answers is

Yes. Senator, we’ve put a lot of our resources into supporting small business and we’ll continue to do so. We’re certainly developing material for this but we also have a dedicated small business helpline, and we’ve had 34,000 calls to that this year alone as in the financial year. And we have a small business showcase with a whole range of resources. The small business webpage was visited 50,000 times this year, we’ve got best practise guides and we have… So, we do put a lot of effort into small businesses and we’ll continue to do that. It’s important they understand what their, you know, obligations and rights are.

[Malcolm Roberts]

Well, I think it’s important just to mention chair, just in finishing up, that we’ve had a lot of contact with small business and small business organisations who are relieved that the bill went through last week, but now they need to make sure it’s implemented properly. So.

Thank you.

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Fixing IR reform to protect employees and help small business

The monstrosity of the Fair Work Act is the first problem with our industrial relations. We have gone through the proposed legislation in detail and put together many amendments for the government to consider. While some of the amendments are more critical than others, we will be working with the government to get them over the line.

Casuals should be able to request conversion to full time, but making it compulsory for small business to offer the conversion is just more red tape they don’t need.

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One Nation Senators preparing amendments to rectify flaws in the IR Bill

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The government is on notice that One Nation is expecting due consideration of its amendments to the Industrial Relations Bill next week in Parliament.

Senator Malcolm Roberts said, “I have doubts about the government’s commitment to comprehensive debate on the Industrial Relations legislation with the committee report due Friday and a vote expected next week.

“This is critical legislation and Senator Hanson and I will not be rushed into a vote before we have had time to consider the report’s recommendations.”

One Nation is proposing a range of amendments including casuals, greenfields, protections for workers in enterprise agreements, awards and compliance.

Senator Roberts stated, “I will not support the Bill in its current form and the government needs to be prepared to embrace One Nation’s amendments to rectify and remove the legislation’s flaws.

“Good industrial relations is about restoring the primary workplace relationship between the employee and employer, and stop the money flowing to the IR club that profits from complexities.

“If the Industrial Relations legislation isn’t doing that, and this current Bill doesn’t, then it isn’t good IR and I am committed to amending the Bill for the betterment of employers and employees.”

One Nation will be seeking a review of this legislation in twelve months to address any unintended consequences and a commitment from the government to undertake comprehensive industrial relations reform within two years.

One Nation’s commitment is to protect honest workers, protect small business and restore Australia’s productive capacity.

“I have written to more than 80 stakeholders including union bosses, peak union groups, employer and industry groups and welfare agencies and listened to their feedback on the legislation. “It’s time to sort this out and Senator Hanson and I are ready to work with the government and all parties,” added Senator Roberts.

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One Nation doing more for workers than Labor

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Workers should be concerned that Labor and some union bosses have abandoned them. Casual workers are being abused and the needs of small business—Australia’s largest employer of workers—have been all but ignored by everyone except One Nation.

Transcript

In serving the people of Queensland and Australia, I note that Labor is fixated on the problems not the solution. The facts are that the government listened to One Nation’s legitimate concerns for employers and employees and it booted out the BOOT. One Nation achieved that. One Nation is doing more for Western Australian workers and employers than Labor. That is, in part, thanks to our Western Australian team, Robin Scott, an ex-Freo sparky who works hard for the people of the mining and pastoral region in WA, and Colin Tincknell, the One Nation WA state leader who proudly represents the South West region. Workers should be concerned that Labor and some union bosses have abandoned them. Casual workers are being abused and the needs of small business—Australia’s largest employer of workers—have been all but ignored by everyone except One Nation.

I have stood up to put a stop to these abuses for casual workers that the unions, the Labor Party and politicians like Joel Fitzgibbon knowingly ignored for years. Recently, the CFMEU mining division agreed with me that their union has ignored casuals for many years. I applaud that person in the CFMEU for having the courage to do that, and lawyers for the ETU and CFMEU confirmed that, in their opinion—and I agree with them—the IR system needs to be free from lawyers. For Labor to say that it’s going to be easier for employers to cut wages and conditions is not enough. Labor need to step up and show everyday Australians what Australia’s IR problems are and what they would do better. Labor, like Joel Fitzgibbon, are all talk and no action.

One Nation wants genuine industrial relations reform for the benefit of employees and employers, especially for small business and their employees, and the best way to do that is to listen and contribute to a better system. We have been listening widely and hearing the concerns from industry, union bosses, employer and employee groups, welfare groups, casual and injured workers, and small business. I care and I will fight to protect workers’ legal and moral entitlements, just as I am doing in Queensland and I am doing in the Hunter Valley, even though it is not in my state. One Nation stands for the workers that Labor and Joel Fitzgibbon continue to ignore.

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Labor has no solutions for IR problems

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Labor has no claim to the high ground on industrial relations, they have abandoned the working class. A graph of our median and average wages over time is untroubled by changes in government.

Liberal, National, Labor or Greens, it makes no difference; workers just keep going backwards. Only One Nation has a vision for the future that returns our productive capacity, manufacturing and better wages for Australians.

Transcript

This motion is one of the least self-aware that I’ve seen out of the Labor Party. As a servant to the people of Queensland and Australia, I note that the median wage has not increased in real terms over the last 30 years after adjusting for dramatic increases in the cost of housing, health care and education, yet Australia’s gross domestic product per capita has increased over that period from $13,600 to $65,400 in real terms—as are all my figures today. Gross domestic product is up by a factor of five, and the wages of everyday Australians have not increased. Where’s the money gone? Average wages for Australians at the upper end of the scale have seen an increase of 50 per cent, and at the very top end the increase is over 100 per cent. A graph of our median and average wages over time is untroubled by changes in government. Liberal, National, Labor or Greens, it makes no difference; workers just keep going backwards.

Wages as a share of GDP have fallen from $116 billion to $96 billion over 30 years. The share of our gross domestic product being paid to Australian workers is at an all-time low yet corporate profits have grown from $20 billion to $120 billion—six times. Globalist economics has crushed the wages of everyday Australians and deposited the spoils from an expanding economy into the pockets of the big end of town in salaries, bonuses and dividends. Globalist free trade agreements have seen more than one million high-paid, skilled manufacturing and heavy industry jobs moved overseas. Labor is a big fan of globalism—voting in favour of every one of these free trade agreements.

Recently the Senate voted for a UN funding bill to direct money into funding economic development in countries with which we have a free trade agreement. This facilitates increases in their productive capacity to take yet more Australian jobs. One Nation was the only party to oppose the funding bill. The Labor Party voted in favour—in favour of losing yet more jobs overseas.

COVID restrictions have had a role to play as well. The government’s COVID restrictions measures have moved consumer spending away from small businesses who employ everyday Australians to corporate retailers who pay minimum wage. Online growth has gone to Amazon, owned by the world’s richest man, Jeff Bezos. Social media are calling the COVID restrictions on businesses ‘a war on capitalism’; it is no such thing. In corporate Australia, the biggest crony capitalists have record sales, record profits and have paid higher dividends and bonuses. As a result of government coronavirus restrictions and measures, the world’s 400 richest people have increased their wealth by $1 trillion. Much of this new wealth is money that was once spent in local communities—in hardware stores, community supermarkets, butchers and grocers. This was money that held up real wages paid by local businesses to their loyal staff. Now those businesses have been forced to close or to sack workers. So the real outcome from coronavirus measures has been the largest transference of wealth from small businesses to foreign-owned or controlled corporations in Australian history. We expect this sort of thing from the globalist Liberal Party and their sell-out sidekicks—the Nationals—yet this has been brought to you by Labor in Queensland, Labor in Western Australia and Labor in Victoria. Almost every government measure during the COVID period has been waved through the Senate by the Labor Party, working in conjunction with the Liberals and Nationals.

Labor don’t get to complain now; they should have seen this coming. The only thing that was not in this profligate spending was a permanent increase in JobSeeker. The constant pressure from One Nation in this place directly with the government across many years has today had a result. One Nation will continue to stand up for everyday Australians. The destruction of wages and entitlements for Australian workers has many other causes. At the heart of the problem is supply and demand for workers. At the same time that Australia is sending jobs overseas, we are importing workers. Over the last 30 years, Australia has added 10 million new Australians. While many of these do not go into the productive economy, the bottom line is simple: we are importing workers for jobs that have already been exported to lower-cost destinations, especially China. There are more workers than jobs and that can only have the effect of reducing wages. Labor defend Australia’s high immigration rate and suggest One Nation are racists for wanting a reduction in the rate of arrivals. The use of the word ‘racist’ means they have no argument to counter us. All One Nation are doing is standing up for everyday Australians who will never get a decent pay rise a as long as the government keeps bringing in more new arrivals than there are jobs. The Rudd Labor government and the Gillard-Rudd Labor-Greens government increased permanent migration from 160,000 in 2007 to 205,000 in 2013. Labor cannot pretend to care about workers when it was Labor that initiated the largest spike in arrivals in the last 30 years.

The other issue around stagnation in real wages is foreign temporary workers. The Senate inquiry into temporary work visas found temporary migrant workers experienced widespread wage theft and gross violations of Australian minimum work standards including: failure to pay minimum wages, long work hours and lack of health and safety training leading to workplace injuries. Temporary work visa holders are being exploited to drive down wages and conditions. Indeed Bill Shorten, as minister, set the record for temporary work visas in this country, a record that Labor still holds. I don’t hear Labor complaining about this.

This may be because their beloved free trade agreements facilitate foreign workers. The Indonesian free trade agreement section 12.9 removes labour market testing and allows additional contract workers across 400 skilled occupation. It allows for 4,000 temporary working holiday-maker visas per year, and these workers are highly exploited because they’ll be deported if they lose their jobs. Wage theft is not entirely restricted to vulnerable foreign workers, although it does account for most of the cases. The problem of falling real wages, job insecurity and wage theft, which Senator Walsh mentions in this motion, results from Labor Party policies. One Nation is accused of wanting to wind the clock back. Well, on this issue we do want to wind the clock back, back to when workers got a fair day’s pay for a fair day’s work. We need to start putting Australia and Australians first, back to when workers settled here, became Australian citizens and contributed to the future of our marvellous country.

Full Motion: https://www.aph.gov.au/Parliamentary_Business/Hansard/Hansard_Display?bid=chamber/hansards/c18a4b03-69cc-4413-9438-08e33693f884/&sid=0102

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Will the government make a commitment to actual IR reform?

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Instead of propping up the industrial relations club with excessive, needlessly complex legislation, we need to simplify it. Regulations are written at the moment for the few people, employers and employees, who do the wrong thing.

They should be written for the majority of good people, the fine Australians, with severe penalties for the bad.

We need to turn it upside down: instead of penalising the 100 per cent with the ridiculous workplace arrangements, we need to penalise the real shonks, the real criminals.

Transcript

As an Australian who has been elected to serve the people of Queensland and Australia, I’m very proud to say that I have worked in many countries and I am genuinely proud of Australian workers. We have a phenomenal human resource in this country, unequalled anywhere in the world—the initiative, the hard work, the honesty and the integrity of workers in this country, and of many businesses in this country, especially small businesses, which are the engine room of our economy. More people are employed in small business than in any other sector of the economy. We need to get back the dynamism that has been lost in Australia—lost largely because of the decisions that come out of this building.

The MPI is ‘The Morrison government’s failure to address job security is giving companies that exploit workers an unfair advantage against honest employers.’Let me talk about the example in the Hunter Valley of the exploitation, the abuse and the casual discarding of people who are tossed on the scrap heap when they’re burnt out. Casuals have been exploited in the Hunter Valley by BHP, a major mining company, and Chandler Macleod Group, one of the world’s largest labour hire firms, an offshoot of Recruit Holdings from Japan, with the complicity of the Hunter Valley division of the CFMEU. It would not have happened without all three being complicit and working together.

But let’s go back to the root cause. The root of casualisation started in small business because employers were so confused by the complexity of hiring people and so confused by the complexity when there was a problem to discuss, so they went to employing casuals because it became too hard to deal with disciplinary issues in small business.

Quite often we see a small business having problems with an employee who’s stolen something from their business, and the small business owner then simply trying to address that ends up just paying $8,000 or $10,000. We heard last week from COSBOA, the Council of Small Business Organisations Australia, about some companies, some small businesses, paying $20,000 in shut-up money for problems to go away. One of the root causes of the insecurity in this country is the highly complex, needlessly complex and destructive industrial relations situation.

Then what we saw was large companies taking the small business model and using casuals for a ‘try before we buy’. In other words, they would watch the casual worker on their mine site, in their business, and if he or she came up with the goods then they would hire them. That has led to extreme abuse of workers in this country. It’s led to safety hazards, which I have complained about in my submission to the Grosvenor inquiry. But in the Hunter Valley it led to miners being intimidated and being threatened with the loss of their jobs if they reported safety incidents. How stupid is a company when that happens? They’re losing that prime source of information about their company.

I want to give Mr Bukarica, the national legal adviser for the CFMEU mining division, a huge compliment. In Townsville he had the guts, the integrity and the courage to acknowledge that the Hunter Valley CFMEU is part of the problem at those mines in the Hunter Valley because they enabled casualisation to happen. I also want to give him praise because he said that the CFMEU has not done enough for casuals. Indeed, they have caused the casual issue in the Hunter Valley and the casual abuse of casuals. And he’s admitted that his union will need to do more about it.

So what we see is the mess that’s been created in the past by labour laws that have become far too complex and by the Liberals not addressing this issue in 2016 when they should have. Casuals show us the pain of people at work. Casuals are also a sign of the failed industrial relations situation—no getting away from it. What the government is doing in its latest industrial relations legislation, proposed to come before the Senate next month, is shifting the liability for that mess from large business to small business. They’re helping a couple of large companies manage their risk.

We’ve approached this differently. We’ve gone out to listen. We’ve written to 80 different organisations—employers, employee groups, unions, union bosses, welfare associations, organisations, small business groups—and we’ve asked them for their advice, their views. They have come and given us their advice. They said no-one else has invited them to do that; we’re the only ones. In addressing this legislation, we have three aims that ensure security for Australian workers, whether they be in small businesses or large businesses, and security for small businesses and large businesses.

Our three aims are to protect honest workers, to protect small businesses and to restore Australia’s productive capacity. We see the employer-employee relationship as fundamental. It is the primary workplace relationship, and that’s what’s needed to empower workers. We’ve got the best workers in the world. What’s needed is for employers and employees to work together—empowered employees and empowered employers—because that is the only way to create jobs. Government doesn’t create jobs. As much as the Labor Party and the Liberal Party talk about it, government does not create jobs. Honest workers create jobs. Small businesses create jobs. Large employers create jobs. The government creates the environment. Labor and Liberal governments have stuffed this country’s workplace environment.

The Morrison government talks about security and recovery from COVID. How can that be possible when we’ve destroyed our electricity sector? How can it be possible when we’ve got one of the worse tax systems in the world? How can it be possible when we’re not supplying the right infrastructure? How can it be possible when we haven’t got the skills development needed? How can it be possible when we’ve got overregulation? Just go and talk to people, not only small or large business employers but also employees, who are sick to death of energy prices, which have gone from the cheapest in the world to the highest in the world under this government and its predecessor, the Labor Party.

Instead of propping up the industrial relations club with excessive, needlessly complex legislation, we need to simplify it. In fact, I put that to Peter Strong when he was in my office last week. I said to him that regulations are written at the moment for the few people, employers and employees, who do the wrong thing. They should be written for the majority of good people, the fine Australians, with severe penalties for the bad. We need to turn it upside down: instead of penalising the 100 per cent with the ridiculous workplace arrangements, we need to penalise the real shonks, the real criminals. Instead of assuming people are bad—employees are bad, employers are bad—we need to free people to produce. We need to penalise and handicap those who deserve it. That’s what we need in this country: empowering, not frightening.

What we see at the moment is an IR club of big employers, big industry associations, large unions, employee consultants, employer consultants, industrial relations consultants and, above all, lawyers. Again I come back to the ETU legal adviser in Townsville, Michael Wright, and Mr Bukarica from the CFMMEU, who both said that we have far too many lawyers involved in industrial relations and that’s why it’s a mess. They both said they want fewer lawyers, that they want to remove the lawyers. Full credit to the CFMMEU mining division and full credit to the ETU for saying that. The big companies and the crooks are the ones who do the best out of the industrial relations club, because they have deep pockets and they can afford to fund the lawyers and others who live off the backs of Australian workers.

What we need to get back to is a simple workplace relationship. Will Labor make a commitment to properly and honestly reform IR? Will you? Will the Liberal Party and the National Party make a commitment to properly and honestly reform IR, to free people so that they’re free to compete with the people in Korea, China, India, Africa, Malaysia and Singapore? That’s the way to get security of employment: by empowering people. One Nation is the party of energy security and affordability. One Nation is the party of job security.

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The detailed breakdown of the Industrial Relations Bill

https://youtu.be/lU4SFG_Uyl4

I was unable to give this speech in the Senate last night but it’s important you get these details. While the government has backed down on changing the BOOT test after One Nation pressure, there is still much to fix in the casual employment mess. There is a lot of chest beating about this bill but no real detail, only One Nation will give you this amount of detail and transparency about our analysis.

Transcript

In serving the people of Queensland & Australia I want to discuss our shared need for: 

  • Improving industrial relations to protect honest workers and employers, especially casual workers.
  • Our concerns for business, particularly small business.
  • The bigger picture and a vision for a secure future for Australia. Today the government took the first step in recognising One Nation’s legitimate concerns for employers and employees – it booted out the BOOT! 

We listened: We are listening to workers – casual and permanent – across Queensland and Australia. Listening to all stakeholders in employment including welfare organisations. Listening to UB’s and union bodies. Listening to small and medium sized businesses. Listening to employer and industry groups. Listening to the government.Listening reveals that across our country, people are hurting, feeling vulnerable. Afraid for their jobs, worried they won’t be able to pay the mortgage, afraid of the future. Everyday Australians are hurting from government COVID restrictions and lock-downs keeping people away from jobs, businesses and loved ones. 

The Problems with this Bill: There are many problems with this Bill that need to be resolved to make it safer for both employees and employers. There are many ‘hairs’ on this Bill that need to be trimmed to make it fit-for-purpose. Our concern is for the unintended consequences of this government’s so-called reforms that are really just tinkerings. We’re investing the time and effort to work with all parties to improve outcomes for employees and employers. 

The first problem is with the definition of “casual”, The proposed casual definition at Section 15A is lengthy and complex, it suggests that the employer’s intention expressed at the time of commencement of employment is the only important factor, determining employment status. It’s not.  Hunter Valley casual coal miners we’ve championed were clearly permanent and not casual as the dishonest labour hire company, Chandler MacLeod designated. 

This must be clarified in the Bill or Explanatory Memorandum. The definition also refers to “no firm advance commitment” yet many casuals have a firm advance commitment. Because it suits both them and the business as in single parents working during school hours and in takeaway shop. The definition of casuals in S.15(A)(2) is a loose compromise because the term ”as required” is confusing and must be removed. Last week, Mr Bukarica, Legal Director for the CFMEU Mining Division and his team agreed that their union had ignored casuals for many years. The same can be said of this government. The CFMEU in the Hunter Valley and the government have contributed to the exploitation and confusion in the permanent casual rort. 

The second concern we have is with the proposed ‘right to conversion’ Many casuals have a regular pattern of hours, yet Sections 66A and B suggests that this means casuals are actually permanent. This section as it stands throws many burdens on small business and puts the casual loading at risk for workers who enjoy the benefit of a casual loading. 

The proscriptive nature of required record keeping and timeframes for offers of conversion, as in the proposed Section 66B, represent a burden for small business who cannot afford the time off the tools.The answer is to take this unnecessary burden away from small business and likewise to review the silly ‘windows of opportunity’ workers have to apply for conversion.

Even more record keeping. Yet sadly this change will do nothing to change how companies like BHP exploit and abuse casuals through labour hire arrangements. BHP and big business can randomise rosters and extend casual arrangements to suit themselves. Some already are and that disrupts workers needlessly. 

The third concern is the new Section 545A for offsetting claims This introduces a statutory rule for offsetting claims for unpaid entitlements from permanent casuals.  Calling this double dipping in many instances is a lie. Let’s be clear I do not support double dipping on entitlements. Yet employees have a right to entitlements under circumstances where they have been treated differently to a true casual. 

We will fight for retaining and protecting these workers’ entitlements just as we have done for 18 months in the Hunter Valley. The Full Court in the Rossato case clearly stated that the casual loading paid to a casual worker did not offset their entitlement to paid leave as guaranteed to all permanent workers under the Fair Work Act.

The government seems to think it has to change this because the decision could impact big business profits. Section 545A (1) (b) takes this even further and states that it protects employers where they pay a flat hourly rate even when it’s not clear whether a loading is being paid. What’s going on here? How is this fair or making things simple? 

In the Hunter Valley, casual mine workers were put on permanent rosters and in permanent roles beside the permanent workforce. It could not be more clear, yet the IR laws created ambiguity and injured workers are still waiting for their just entitlements nearly six years later. As it stands, this provision could deny workers their lawful entitlements where they were not given a casual loading or when the EA resulted from a flawed process. 

I commend the CFMEU Mining Division’s Legal Director Mr Bukarica for the courage and integrity he showed when in answer to my questions he acknowledged the Hunter Valley CFMEU’s role in colluding with employers to deprive casuals of basic employment entitlements and rights. 

We will work with the government to create a workable solution to ensure workers are treated fairly. This is crucial and not negotiable. Small Business: Small business needs clarity and simplicity. It deserves a fair go and cannot afford the days or weeks away from work to defend a case when the big end of town can dig into deep pockets to pay lawyers and consultants. 

While the overwhelming majority of claims against small business settle before arbitration, small business owners have suggested this is because they have learned to pay ‘go away’ money. Thousands of dollars. We have received representations suggesting that the increases in fines (Schedule 5, Parts 1, 4, and 5) and new criminal penalties (Schedule 5, Part 7) be suspended for 2 years for small businesses to soften the blow for an already damaged part of Australia’s economy. 

We believe this is worthy of support. Small business deserves and needs a tailor-made solution for them. Small business spans multiple awards and cannot afford enterprise agreements. They cannot submit to the inflexible rules that the IR Club creates for its benefit and for lawyers’ financial benefit. 

The IR Omnibus Bill so far: The Prime Minister describes the IR system as, quote: “not fit-for-purpose, especially given the scale of the jobs challenge that we now face as a nation.” Who can forget the Dyson Heydon’s (Royal Commission) diabolical findings on union bosses? The whole nation saw the need for changes to protect workers from lawbreaking union bosses. 

One Nation supported govt legislation to implement the Royal Commission’s findings. We supported the ABCC, ROC and the first Ensuring Integrity bill. Yet we could not support the govt’s ill-considered second Ensuring Integrity bill. Nor can we support this Bill as it stands.

I’ve spoken often about Hunter Valley coal miners being exploited, abused and discarded as a result of the collusion between BHP, Chandler Macleod, the labour-hire firm and the Hunter Valley CFMMEU. And while the government knew about the “casuals” problem for years it did nothing until Rosatto threatened big business profits.

One Nation is standing up to protect workers’ and employers’ rights. One Nation knows that only employers, entrepreneurs, small businesses and workers create jobs. Government COVID restrictions have done enormous damage. Yet the govt-induced recession is not an excuse to cut pay or job security.

Instead, for our country’s sake, let’s make a genuine attempt at IR Reform together. 

We’re ready to work with the government and stakeholders to improve outcomes for employers and for employees. For businesses, especially small businesses and for honest workers.

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