I enquired about the number of requests for assistance that had been sent to the Fair Work Ombudsman (FWO) and was informed that none had been received during that week, attributing this to potential delays in processing. They mentioned that their preferred method for addressing issues is via phone calls and stated they wouldn’t be establishing any new methods for submitting materials that exceed the current 1000 character limit.
Furthermore, the FWO made it clear that they wouldn’t be accepting responsibility for the validity of any enterprise agreement approved by the Fair Work Commission.
Transcript
Senator ROBERTS: Thank you for appearing again.
Ms Booth: Senator.
Senator ROBERTS: How many complaints has your office received about stolen wages from coalminers working for labour hire companies?
Ms Booth: We may or may not be able to give you that information right now, but I cannot. My staff may be able to assist. Ms Volzke, do you have those numbers?
Ms Volzke: I don’t have the exact number. The requests for assistance are low, but you know that we have had a number of formal investigations in relation to black coal mining employees.
Senator ROBERTS: Ms Volzke, three requests for the Fair Work Ombudsman to investigate worker underpayment under the Black Coal Mining Industry Award were sent to your office recently.
Ms Booth: We could ask Mr Scully if he has that information, as he’s the responsible person.
Mr Scully: As for your first question, the information I have before me is that, with respect to disputes received from employees or participants in the coalmining industry, in the 2022-23 financial year there were nine; in this current financial year to the end of March there were six.
Senator ROBERTS: Does that include the recent ones I have learned about?
Mr Scully: Of the recent ones you are referring to, one was in October 2021, another was in April 2022 and another in June 2023. I understand that they would be included in those numbers.
Senator ROBERTS: I have learned of three others that were submitted. The Independent Workers’ Union of Australia submitted, I am told, via email address, three requests for the Fair Work Ombudsman to investigate worker underpayment under the Black Coal Mining Industry Award, each of the three on behalf of an underpaid coalminer. That was in the last week.
Ms Booth: We wouldn’t that have data available yet because it wouldn’t have reached the status of an investigation; they would have to be triaged first. So that will be for another Senate estimates.
Ms Volzke: Senator, in relation to those most recent complaints, would I be able to ask about the date and time of the underpayments? Are we talking about historical, older underpayments?
Senator ROBERTS: It varies. Some are over extended years. I can give you some information. The miners whose assessments have been completed have given approval for their data to be shared, with individual names withheld. I can give you their Fair Work Ombudsman reference numbers. One is coalminer Fair Work Ombudsman reference No. 3389142, years assessed 2013-18, and amount underpaid $121,000. That is for one man or maybe a woman; I know that there are women involved. Another is coalminer Fair Work Ombudsman reference No. 3380088, years assessed 2013-21, and underpayment assessed at $104,000. A further one is coalminer Fair Work Ombudsman reference No. 3380122; five years are listed, but he or she is still doing assessments for another three years, and the total there, so far, is $54,000, but it’s expected to top out at $85,000. These are not small amounts of money. My understanding is that many more miners are now applying for the Independent Workers Union of Australia to lodge complaints or, I think you call them, requests for investigation.
Ms Booth: Requests for assistance.
Ms Volzke: Senator, in relation to those matters, again, they traverse a period of time when we had the SAJER legislation passed, which was under the previous coalition government, and the Rossato decision; they sit over the top. Now we have the most recent legislation, and I think Minister Watt referred to one of those ‘same job same pay’ orders already having been made. All those matters that you raise still raise those core issues that we spoke about previously, when you and I met, I think, towards the beginning of last year, about the consequences of the black coal mining award not providing for casual employment. The statutory definition changes to casual employment that had retrospective effect—
Senator ROBERTS: Have you seen their request for investigation?
Ms Volzke: No. That’s just by the dates that you’ve given me; that’s all. Absolutely, we’ll look at those, but I’m saying that they traverse that same time period.
Mr Scully: Senator, we call it a request for assistance and, as you’ve indicated, if they’ve come in recently, they will not have got to me or Mr Ronson, who is also with us today. We will find where they are in our system and the circumstances regarding the requests for assistance.
Senator ROBERTS: Why are complainants limited to only 1,000 characters in their request for assistance or request for investigation—that’s about 130 words—in making a complaint about unfair work practices, including wage theft in the coalmining industry; why are they limited?
Ms Booth: I would imagine that is in order to have both a website that’s capable of being properly hosted and information capable of being absorbed. The full extent of information that’s provided to the Fair Work Ombudsman is not contained in those characters. That’s a commencement process and, thereafter, individuals who have made those communications with us would be spoken to.
Senator ROBERTS: Why does the Fair Work Ombudsman refuse to accept complaints that are more detailed than those that can fit within a 1,000-character limit?
Ms Booth: The area of technology is in Mr Campbell‘s purview. This will be entirely a technological matter, I’m thinking. Mr Campbell, are you able to say anything about the number of characters in our communications form?
Mr Campbell: I’m going to have to guess a little bit in my answer and I don’t like to do that in this forum. It depends on the channel through which the people you speak of have sought to engage with us. In certain channels we do have limited fields for the collection of information from customers. Normally, that goes to complaints through our anonymous inquiry facility. But through ‘my account’, where we would normally access most of our requests for assistance, there would be the ability to capture more information, and that’s normally because the person has given us all their information that we’ve sought and they’re seeking to provide us with further information to assist us in making an assessment of their RFA, or request for assistance. I’m not quite sure that they’re limited from writing more than the characters that you’ve said.
Senator ROBERTS: My understanding is that they tried to make an application but couldn’t get beyond the bureaucratic brick wall of that 1,000-character limit, which is roughly 130 words. Why was there no email address on your website, other than one that the submitters are told relates to freedom of information requests? When they couldn’t get their material under the 130-word limit, they then looked for an email, and the only one they could find they used, and were told that it relates to freedom of information requests.
Ms Booth: Most of our requests for assistance come through a telephone contact. Of course, our 13-13-94 number gives no limit to the amount of information that can be conveyed, so that option perhaps in this case was not one that was undertaken by those people.
Senator ROBERTS: These are pretty intelligent people. I’m surprised that they did not see it.
Mr Campbell: I don’t know. I don’t want to speak to that, because I’d be making a judgement about their intelligence, and I can’t do that from here. But our request for assistance online lodgement capability seeks to authenticate the person who’s contacting us, so we know who they are and who we’re dealing with, and information about their circumstances, and that would include seeking them to detail their concerns to us. It’s not my recollection that’s limited. I’m happy to go and have a look because it would seem at odds with how we’re trying to collect information in the authenticated space. As I offered at the start, there is a facility for people to provide us with anonymous information about a workplace or circumstance, and that might have a limited character overlay on top of it, which might be where they’ve started, as compared to seeking to raise with us a request for assistance using online lodgement.
Senator ROBERTS: With, say, a document with 20, 30 or 40 pages of evidence—these people have a lot of evidence—even just taking a small slice of it, they were wondering initially how they would get that past that bureaucratic brick wall.
Mr Campbell: I don’t think there is a bureaucratic brick wall.
Senator ROBERTS: That’s what they tell me.
Mr Campbell: Perhaps I could take it on notice and confirm it for you.
Senator ROBERTS: Okay.
Ms Booth: As Fair Work Ombudsman, could I reassure the committee that there is no bureaucratic brick wall. If anything, the channels of communication into the Fair Work Ombudsman that I’ve observed, since I have been Fair Work Ombudsman, are many and varied, and there is no constraint on the amount of information that can be provided.
Senator ROBERTS: So you would refute any suggestion that the Fair Work Ombudsman is trying to make it impossible for workers to provide evidence?
Ms Booth: Absolutely, I would refute that.
Senator ROBERTS: Could we have a list, on notice, from Mr Campbell?
Mr Campbell: I’ll take that on notice and come back—
Senator ROBERTS: Yes, a list of all the optional ways of getting through and maybe some assessment of whether it’s easy to identify those options; that is, whether it would be easy to find, for someone who lands on your website?
Mr Campbell: Absolutely.
Senator ROBERTS: How should workers submit a complaint? How do workers communicate with you, and how do workers get through that 1,000-character limit? What are the options?
Ms Booth: Make a phone call. Ring 131394 and speak for as long as you like to a Fair Work adviser.
Senator ROBERTS: From there, you would say, ‘Send us the evidence’?
Mr Campbell: It would be allocated to an officer for assessment and determination about what further assistance we might be able to add or offer. If the circumstance, as depicted to us, warrants an intervention by an inspector, for example, it might be allocated to an inspector, who would then consider it, and they might seek further particulars from the customer or the complainant, depending on the circumstances.
Senator ROBERTS: Would the Fair Work Ombudsman consider creating an email account where complainants, regarding wage theft, can lodge their complaints in full, with all documentation required to prove their complaint?
Mr Campbell: No.
Senator ROBERTS: Why not?
Mr Campbell: Because it’s an inefficient way to deal with disputes from customers.
Senator ROBERTS: Why is it inefficient?
Mr Campbell: Because they are unauthenticated contacts from a customer. Anyone can create an email address. We seek to create a picture of the customer so that we can determine how we can best assess them: understand award coverage, understand which sections of the Fair Work Act might be triggered by their circumstances, make a determination on their level or ability to self-resolve their workplace dispute and find out whether they’re still employed, the business that they work for and the customer details. We have a portal which is used daily and regularly, and very successfully, by thousands of individuals every year. It is consistent with every other regulator in the Commonwealth and probably at the state level, in terms of how they deal with volume complaints from their ‘regulator’ community.
Senator ROBERTS: Is the Fair Work Ombudsman aware that the Senate has directed Minister Burke to investigate the multimillion-dollar wage theft—we estimate it to be over $1 billion in total—conducted against labour hire coalminers, where their 25 per cent casual loading was not paid and an average of more than $30,000 person per year was not paid?
Ms Booth: I am aware that a resolution of that nature was passed in the Senate, yes.
Senator ROBERTS: Are you aware that some miners have been underpaid $40,000 a year, person, for up to a decade?
Ms Booth: I have no comment on that.
Senator ROBERTS: The number of miners, we believe, is around 5,000 or more?
Ms Booth: No comment on that.
Senator ROBERTS: More than $1 billion in wages stolen, it’s estimated?
Ms Booth: Again, no comment.
Senator ROBERTS: Including an Australian subsidiary of the world’s largest labour hire company, Japan’s Recruit Holdings?
Ms Booth: These are matters that you’re asserting; I have no ability to verify them here, so I will not comment on them.
Senator ROBERTS: On behalf of some of the world’s largest multinational global mining companies?
Ms Booth: As indicated.
Senator ROBERTS: In collusion with the CFMEU, which enabled theft by illegal enterprise agreements, which the Fair Work Commission approved?
Ms Booth: Again, no comment.
Senator ROBERTS: Is the Fair Work Ombudsman aware that the CFMEU Mining and Energy Union has recently admitted publicly, in circulars, that wage theft has occurred?
Ms Booth: I’m not aware of those alleged admissions in circulars, no.
Senator ROBERTS: They denied it for many years, when I was raising these issues. Now they’re admitting it publicly, in email newsletter form. They’re basically admitting it, and vindicating me in what I’ve been saying for five years, including the amounts owed. Why has the CFMEU Mining and Energy Union not applied for backpay?
Ms Booth: I can’t read the mind of the CFMEU.
Senator ROBERTS: Has it applied to the Fair Work Ombudsman for a ruling?
Ms Booth: A ruling?
Senator ROBERTS: An investigation. Has it made a complaint to the Fair Work Ombudsman about underpayment?
Ms Booth: Not that I’m aware of. Mr Scully, as you previously heard, is responsible for that area.
Senator ROBERTS: It seems not; I would conclude not. That means they certainly haven’t applied for backpay. Perhaps mine workers are now joining the Independent Workers Union of Australia in Central Queensland and the Hunter Valley because they’re finding that they can make applications for backpay.
Ms Booth: Again, I have no knowledge of that.
Senator ROBERTS: Will the Fair Work Ombudsman, along with the Fair Work Commission, accept some responsibility for the massive stolen wage bill, an issue that I’ve been raising for almost five years?
Ms Volzke: We’re aware that the motion has been made and we understand that, in the evidence that was given yesterday, the department is considering their advice to the minister on that, and we will await that as well.
Senator ROBERTS: I’ve been dismayed—I won’t raise the names—that, on a number of occasions, the Fair Work Ombudsman has relied in Senate estimates hearings on documents that I have argued and documented as being fraudulent, as has Simon Turner, and I showed those documents to be fraudulent. Are you aware of that, Ms Booth?
Ms Booth: I’m aware of your assertions,
Senator ROBERTS. My observation is that the Fair Work Ombudsman assesses a request for assistance comparing workers’ actual payments received with their lawful entitlements under their work instruments. That is our obligation and that is what we do.
Ms Volzke: We provided a formal letter in relation to one of those complainants, under a letterhead dated 23 July 2023, about those allegations of fraudulent evidence.
Senator ROBERTS: My understanding of that letter is that it ignores documented evidence and decisions from other federal government agencies saying that the document that the Fair Work Ombudsman officers relied upon was not correct and was fraudulent; is that the same letter?
Ms Volzke: It is. It is, I think, about a six-page response, so I would consider it to be very thorough. The outcome of our investigation into that is included in that letter.
Senator ROBERTS: I don’t agree that something is thorough or accurate just because it’s lengthy.
Ms Volzke: I would say that, in relation to the investigations that we have undertaken into a couple of individuals, which I’m sure you’re well aware of, I feel very confident that the Fair Work Ombudsman has undertaken an extremely comprehensive investigation in relation to all of those matters. I feel very confident in the outcomes. In terms of what the law is and what the legal outcome is, I feel very confident in those outcomes.
Senator ROBERTS: Could we have a copy of that letter dated 23 July 2023, please? That doesn’t have to be right here and now, but could we have that on notice.
Ms Volzke: Yes, of course.
Senator ROBERTS: Will the Fair Work Ombudsman continue to deny that the miners have been the victims of a massive fraud that labour hire companies have perpetrated?
Ms Volzke: Again, as the regulator, it’s our role to apply the law as it currently stands, including when an agreement has been approved as passing the BOOT by the Fair Work Commission. We apply that agreement. That’s exactly what we’ve done in relation to those investigations where there has been an agreement that has applied.
Senator ROBERTS: What about if the enterprise agreement is illegal?
Ms Volzke: I don’t think we should speculate around hypotheticals. We know of various cases, and I think in previous estimates we’ve spoken about them: the Warren case, One Key and another more recent one. The reality is that the legal effect of the Black Coal Mining Industry Award not providing for casual employment in operational roles has not been comprehensively argued or subject to submissions by any party, so there has not been an authoritative determination on that issue.
Ms Booth: I think it really is very important to understand the distinction between the role of the Fair Work Ombudsman and the role of the Fair Work Commission. Whatever we would like it to be is not in our purview; we look at what is, in terms of the law. We look at the law as it stands and not at how the law came into being or what it ought to be in the future.
Senator ROBERTS: That’s fine. We’re seeing what seems to me to be—and I’ve been advised that this is correct—criminal involvement of some CFMEU or Mining and Energy Union bosses who facilitate, enable and approve the wage theft through illegal enterprise agreements. I’ve asked Mr Campbell for the process that people can follow for various ways of applying. Could you also advise me of any ways that the Fair Work Ombudsman could consider to make the process easier. Maybe think about the perspective of someone making a complaint or a request, including what they would confront when they log on to your website and how that process could be made easier.
Mr Campbell: I’ve taken the questions on notice and I’ve undertaken to get you the information. I don’t want to open up the dialogue again; I’ve said yes, so I will do it.
