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…
