Exposing the Permanent-Casual Rort

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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