Thousands of “casual” miners in Central Queensland and the Hunter Valley are each owed an average of $33,000 per year in back pay for every year of service for wage theft.
When inquiring with the Fair Work Commission about applying the Better Off Overall Test (BOOT), I asked if they would expect the pay under an Enterprise Agreement (EA) to at least match that under the relevant Award. Mr. Furlong confirmed that the EA would indeed be compared with the Award. I highlighted that there are workers under EAs who are earning significantly less than the Award, with these EAs being sanctioned by the Fair Work Commission and devised in collaboration between employers and the CFMEU.
I reiterated to Senator Watt that I could not support legislation that goes against the interests of workers and conceals the wrongdoing of unscrupulous unions. Minister Burke is shirking his responsibilities by refusing to deliver justice for thousands of workers ensnared in the casual rort stemming from enterprise agreements crafted in collusion with the CFMEU and labor hire firms, resulting in the largest wage theft in Australian history.
Transcript
Senator ROBERTS: Thank you all for being here. Good to see you again, Mr Furlong. When the Fair Work Commission assesses the application of the better off overall test, the BOOT, to a proposed enterprise agreement, would it be a normal expectation that the pay rate under the enterprise agreement should be clearly equal to or above that of the relevant award?
Mr Furlong: As you are aware, and as we have discussed in previous estimates, the agreement making process involves a statutory decision-holder, a member of the commission, looking at the facts of the matter and then applying a legal test, the better off overall test. There are some other elements that they are required to satisfy. On the basis of that, they make a determination about whether or not the agreement is to be approved or not.
Senator ROBERTS: Would it be a normal expectation that the pay rate under the enterprise agreement should be clearly equal to or above? That is a normal expectation?
Mr Furlong: Yes. The better off overall test—
Senator ROBERTS: Thank you. Are there circumstances in which, when considering the better off overall test, the BOOT, for an enterprise agreement, the Fair Work Commission would not do a comparison against the relevant award?
Mr Furlong: The answer to that question is that there would be an award that they will refer to in terms of the application of the better off overall test. Through that process, they will determine whether or not that agreement as made is better off overall than the underpinning agreement.
Senator ROBERTS: So they would do a comparison against the award?
Mr Furlong: Yes.
Senator ROBERTS: Thank you. If the enterprise agreement pay rate were not equal to or above the relevant award, and instead paid substantially less than the award, what would be the criteria used to justify that the enterprise agreement still passed the better off overall test, the BOOT?
Mr Furlong: It’s not a line-by-line comparison.
Senator ROBERTS: No. What would be the criteria? Broad criteria? Line by line? Whatever you want?
Mr Furlong: It is the better off overall test. The Fair Work Act prescribes what the member must take into consideration in determining whether or not that agreement meets the requirements that have been approved.
Senator ROBERTS: Are pay rates prescribed in there?
Mr Furlong: They will be. The decisions of the members—the independent tribunal members—will outline the reasons for the approval of those agreements, including whether or not they satisfy the better off overall test.
Senator ROBERTS: That is a wonderful point. Thank you so much. Even if the award excluded certain classes of employees from its provisions, would that exclusion create the legal circumstances to pay such excluded classes of employee less under an enterprise agreement than what they would or could earn under the award if the class of employees were not award excluded? Just to be clear, I’m not posing a theoretical question here. I refer to the black coal mining industry award exclusion of casuals as an example. Casuals are not specifically referred to in the black coal mining industry award.
Mr Furlong: I understand that. As we have discussed in previous estimates, the fact that there are no casual coalminers under the black coal mining award doesn’t preclude an enterprise agreement being made.
Senator ROBERTS: I understand that. I am talking about the pay. If an award excluded certain classes of employees in the coal industry—casuals—from its provisions, would that exclusion create the legal circumstances to pay such excluded classes of employee less under an enterprise agreement than what they would or could earn under the award if the class of employees were included in the award?
Mr Furlong: Senator, I have tried as hard as I can to be helpful in terms of the second part—
Senator ROBERTS: You are being helpful.
Mr Furlong: that we have provided. My role as the general manager is to provide administrative support to the president on the efficient running of the tribunal, in essence. The matters that you are going to now traverse instances or occurrences that may end up before tribunal members for their determination. I can’t answer that question.
Senator ROBERTS: Okay. That’s fine. Thank you. Minister, what would be the attitude of the government where workers working under enterprise agreements were paid less than the award even though the workers were doing exactly the same job they would under the award?
Senator Watt: Well, I would want to know more about the circumstances there. In general, the idea behind enterprise bargaining is for people to obtain pay and conditions above the award level.
Senator ROBERTS: Why is Minister Burke shirking his responsibilities and refusing to provide justice for thousands of workers caught in the permanent casual rort that is the result of enterprise agreements agreed between the CFMEU, now known as the Mining and Energy Union, with some labour hire firms, all with the Fair Work Commission’s approval? When will Minister Burke address this, the largest wage theft in Australian history?
Senator Watt: Well, as we’ve discussed many times, Senator Roberts, Minister Burke is not avoiding that. In fact, Minister Burke has led the government’s efforts to address and fix the permanent casual rort, including through the legislation that we passed only last week. I actually don’t remember how you voted in that legislation.
Senator ROBERTS: I voted against it because it would not address the issue that I am talking about right here. It buries the issue and buries the culpability of the unions.
Senator Watt: I thought you probably voted against that legislation last week, because One Nation has pretty consistently voted against the legislation that has been designed for workers.
Senator ROBERTS: We vote against it, as I explained, because it doesn’t address the issue. It buries the issue.
Senator Watt: Just as you voted against the closing loopholes bill last year, which is all about trying to put labour hire workers on an even footing with other workers.
Senator ROBERTS: Not true, Minister.
Senator Watt: Well, One Nation has consistently voted against these things.
Senator ROBERTS: You are consistently avoiding the issue of thousands of casual coalminers in the Hunter Valley and Central Queensland, our own state. I want that addressed.
Senator Watt: I’m not. We’re not. We’ve gone over this ad nauseam.
Senator ROBERTS: To make a point here concerning the validity of an enterprise agreement that removes the minimum statutory protections of any award, I quote the following paragraph from the full bench Federal Court decision in One Key Workforce Pty Limited v Construction, Forestry, Mining and Energy Union, decided in 2018. I go to paragraph 227. This is from the court decision:
It is uncontentious that, where a statute requires an administrative decision-maker to reach a state of satisfaction about a matter, the opinion as to the state of satisfaction must be reached by a rational, reasonable and logical process.
I will go to paragraph 204. I quote:
It is an error of law to fail to have regard to relevant material in a way that affects the exercise of power. An administrative decision-maker who makes such an error exceeds his or her authority and acts without jurisdiction.
I’m going to read—
CHAIR: If we keep to the time line, I am giving you a heads-up.
Senator ROBERTS: I’m nearly done. I have two questions and I will read some material. We had a team of workplace lawyers—I emphasise the plural—consultants and coalminers review and analyse five significant labour hire coal mining enterprise agreements and their work roster, which is complicated. The CFMEU, now the Mining and Energy Union, was involved in, was a party to or signed off on all five agreements. The Fair Work Commission approved all five agreements. The enterprise agreements all underpay the award dramatically. Specifically, in the core staff enterprise agreement 2018, the yearly underpayment for casuals working under that award is estimated at $22,623. It is wage theft. The FES agreement in 2018 has yearly underpayment estimated at $27,563 of wage theft for casual workers. The WorkPac agreement in 2019 showed yearly underpayment for casuals estimated at $33,555. Wage theft. The Chandler Macleod agreement 2020 has yearly underpayment estimated at $39,341. Wage theft. The Tesla group agreement 2022 yearly underpayment is estimated at $40,645. Wage theft. The Fair Work Commission has ruled that at least five black coal mining industry enterprise agreements exceeded their authority. Minister, what avenues will Minister Burke and your government take to restore basic entitlements lost under agreements that the CFMEU, the Mining and Energy Union, signed with various employers and that the Fair Work Commission approved?
Senator Watt: Well, Senator Roberts, I have personally sat through probably at least half a dozen estimates committee hearings where you have raised these issues repeatedly. Various officials have answered these questions repeatedly. The matters have been investigated, as I understand it, and dealt with. I understand that you are not satisfied with those answers, but I can’t add to what we’ve said about these things before.
Senator ROBERTS: Does it bother you that I have explained that the Fair Work Ombudsman has used a fraudulent document that has been deemed fraudulent by the Australian Taxation Office as evidenced against five others? It is solid evidence, including a court hearing.
Senator Watt: If that were true, of course I would be bothered by it.
Senator ROBERTS: You would be. Okay.
Senator Watt: But I’m not sure that is true.
Senator ROBERTS: Okay. This is my last question. Why has the process that the Fair Work Commission has adopted since 2010 in approving coal industry enterprise agreements that remove the minimum statutory protections of the black coal mining industry award clearly devoid of any form of rationality, reasonableness or logic?
Senator Watt: What was the beginning of that question?
Senator ROBERTS: Why is the process that the Fair Work Commission has adopted since 2010 in approving coal industry enterprise agreements that remove the minimum statutory protections of the black coal mining industry award—its entitlements, pay rates, the wage theft that I’ve just illustrated—clearly devoid of any form of rationality, reasonableness or logic, as the Federal Court requires?
Senator Watt: That is obviously your opinion, Senator Roberts. I know that it is a strongly held opinion. I don’t think that opinion is shared more broadly.
Senator ROBERTS: Thank you, Chair.
