Thousands of casual miners working in Central Queensland and the Hunter Valley are each owed, on average, around $33,000 per year in back pay, making them victims of Australia’s largest wage theft.
During my discussion with Ms. Booth and Mr. Scully, I inquired about the calculator that people can use to determine if they are being paid correctly under an Agreement or Award. It is crucial for workers to be paid at least the award rate of pay.
Ms. Booth described the calculator as an interactive template designed to cover all the awards.
An analysis of five significant labour hire coal mining enterprise agreements operating in Queensland and the Hunter Valley, all involving the CFMEU, revealed that all five agreements underpaid the award – see below. I also asked Ms. Booth to provide information on how many requests for assistance had been made relating to underpayments by the Chandler Macleod Group regarding the black coal industry.
It’s worth noting that in the Black Coal Mining Industry Award, there are no rates of pay specified for casuals, raising questions about how so-called “casuals” can use the FWO pay calculator.
The Five Agreements that Underpaid the Award
| Per Person – Per Year – On Average | |
| The Core Staff Enterprise Agreement 2018 | $22,600 |
| The FES Enterprise Agreement 2018 | $27,000 |
| The Workpac Enterprise Agreement 2019 | $33,500 |
| The Chandler Macleod Agreement 2020 | $39,340 |
| The TESA Group agreement 2022 | $40,000 |
Transcript
Senator ROBERTS: Thank you for being here again, Ms Booth and Mr Scully.
Ms Booth: A great pleasure, Senator Roberts.
Senator ROBERTS: I refer to the Fair Work Ombudsman website and the black coal mining industry award that asks ‘Pay and entitlements less than the award?’ The Fair Work Ombudsman’s answer is, and I quote,
Employees must be paid at least award pay rates and entitlements.
There’s another instruction or invitation:
If your pay rates are less than the award, go to Help resolving workplace issues to follow our step by step guide on how you can fix it.
Does the Fair Work Ombudsman have a standard process or template it uses to assess whether an employee is being paid less than the award?
Ms Booth: The Fair Work Ombudsman has a pay calculator that allows anyone—an employee or an employer—to provide information as requested. It calculates the correct award rate. That is the case for all sectors.
Senator ROBERTS: So it doesn’t have a template, but an individual can step his or her way through it?
Ms Booth: I think the pay calculator could be described as a template. But it’s interactive. It’s a series of smart forms that you complete and then you get a response at the end which tells you what the award rate is. For further information on the pay calculator, I could turn to my supporters here. Mr Scully, would you like to talk more about the pay calculator for Senator Roberts?
Mr Scully: We call it PACT, which is pay and conditions tool. It is an online calculator that has hundreds and thousands of pay combinations and calculations that can be provided and is tailored to the particular award and classification and the like that the user keys in. It is a very popular tool. I think last financial year, something like 6.4 million people used it. There were something like 7.1 million pay calculations provided, I think, for the year, so it’s widely used by the community.
Senator ROBERTS: So there’s a template that an individual can attempt to check?
Mr Scully: Correct.
Senator ROBERTS: Is that tailored to cover pay rates subject to the coverage of the black coal mining industry award and the rosters that are used in Central Queensland and Hunter Valley?
Mr Scully: It covers all awards, Senator.
Senator ROBERTS: I know it is a very complex situation involving the 12-hour rosters in the Hunter Valley and Central Queensland.
Mr Scully: I would need to check that. I don’t know that it would go to the rosters. It is more awards and classifications. It goes to weekday rates and weekends and shift penalties and the like.
Senator ROBERTS: It’s a very complex roster. People have difficulty. Would the Fair Work Ombudsman agree to undertake an assessment with regard to the application of coal enterprise agreements and provide the outcomes to me?
Ms Booth: The Fair Work Ombudsman certainly will respond to any employee who has a question. We will provide information.
Senator ROBERTS: Is that current employees or can they be past employees?
Ms Booth: I will ask Mr Scully to answer that question on the basis that the info line is available to anyone. We don’t ask people to verify their employment status. I’m going to say that anyone can ring the info line and ask a question. Would that be right, Mr Scully? You would not have to be an employee to ring the info line and ask a question? We don’t seek to verify people’s employment status?
Mr Scully: That is correct.
Senator ROBERTS: I wasn’t thinking about calling up myself. I was thinking about past people who have left the industry but have been underpaid dramatically.
Ms Booth: So when a call comes, information is given. If that information doesn’t satisfy the caller and the caller still has a dispute that they regard as unresolved, we call it a request for assistance. We identify that and we move it through to an assessment team. That assessment team will speak directly with the employer and the employee and attempt to resolve the matter. I think you also know that it will go forward beyond that through inspector support to our investigator and inspectors to conduct investigations should it not be resolved by the assessment team. That is the pathway.
Senator ROBERTS: Thank you. By the way, a team of workplace lawyers, consultants and coalminers reviewed and analysed five significant labour hire coal mining enterprise agreements and the work roster that are operating in Queensland and the Hunter Valley. The CFMEU and the Mining and Energy Union were involved in, or were a party to or signed off on, all five agreements. The Fair Work Commission approved all five agreements. The enterprise agreements all underpay the award. The core staff agreement, for example, 2018 enterprise agreement yearly underpayment is estimated at $22,600. The FES agreement 2018 yearly underpayment is estimated at $27,500. The WorkPac agreement 2019 yearly underpayment is estimated at $33,500. The Chandler Macleod agreement 2020 yearly underpayment of casuals is estimated at $39,341. The TESA Group agreement 2022 yearly underpayment was estimated at over $40,000. But let’s come back. Between 2012 and the present day, could you please provide the number of requests for assistance made regarding underpayments by the Chandler Macleod group relating specifically to the black coal mining industry award and associated enterprise agreements?
Ms Booth: I think we’d have to take a question like that on notice. We collect information at the info line on a range of demographics. I wouldn’t be sure whether we could go to that degree of disaggregation. I think it is important to reinforce that the Fair Work Ombudsman enforces the law as it exists. As you know, a fair work instrument includes an enterprise agreement that has been approved by the Fair Work Commission. We don’t play a role in interrogating the approvability or otherwise of such an instrument. Once it is in existence, we must take it on its face value.
Senator ROBERTS: Thank you. You can take it on notice. Again, in relation to Chandler Macleod and the black coal mining industry award, how many requests for assistance were closed with the following general determinations—under the award, you can be casual; the 2007 workplace agreement covered your employment; or the insertion of section 15A into the Fair Work Act determines you are a casual? You can take that on notice, too, please.
Ms Booth: It would certainly be a degree of detail that I do not have at my fingertips. Is there anything, Mr Scully, you can say about that?
Mr Scully: I can only advise that from July 2019 to 31 December 2023, we resolved 30 disputes that relate to the coal mining industry. I haven’t got any further details about that. There are 30 over the last 4½ years.
Senator ROBERTS: Thank you, Mr Scully, that’s in coal. This is specifically Chandler Macleod and the black coal mining industry award. You will have to take this on notice too. How many proceeded to the investigation stage? Have any of them not been formally closed? If so, which ones? Thank you, Mr Scully. Thank you, Ms Booth. Thank you, Chair.
