Government approach to Industrial Relations disastrous

Australians have had their workplaces wrecked by the Government’s COVID mismanagement. Casual Coal miners have also been let down for years. I asked the Attorney General about this and more at Senate Estimates.

Transcript

Thank you, chair. And thank you all for attending today.

Nice to see you again, Mr. Hehir, it’s always a pleasure. I mean that sincerely. Minister, I’ll just read 11 points from my additional comments to the job insecurity inquiry report. These are the things that we see in addition to exploitation of casual coal miners which we’re gonna have a further discussion about tomorrow.

[Michaelia] Yes, you and I, yes we are.

Yes. And which we’ve been trying to make progress for a couple of years now, in addition to the exploitation of casual coal minors, Australians are suffering right now from what I consider to be COVID mismanagement both federal and state, due to capricious lockdowns and mandates. People are uncertain. The second thing is the phasing out of the coal industry and jobs under the part under the policies of all four major parties, the erosion of people’s rights and freedoms, especially workplace rights and freedoms in this context. Increasing energy prices which are decimating manufacturing and hurting agriculture. The killing of manufacturing as a consequence. The lack of much needed tax reform. The lack of much needed economic reform. Increasing debt. Workplace health and safety systems being bypassed. Australia’s productive capacity being destroyed. And this is the one I want to ask questions about, the failure around industrial relations systems and more. There’s a lot that’s hanging over workers heads. And small business in particular.

Okay.

Would you agree? And I think the solution in many cases is to come back to the basics of employer-employee relationship, the fundamental workplace relationship. So with regard to the coal miners in Queensland and especially the Hunter Valley, we’ve seen workplace safety and health jeopardised, bypassed, people threatened with firing, being fired if they raise safety issues, made a submission to the Grosvenor mining inquiry. The issue of Simon Turner, no worker’s compensation, no accident pay for injury, sacked while being injured, injuries and incidents not being reported, pay rates for casuals being 40% less than people on permanent employed by the mine owner, right next to them doing the same job and the same roster. Coal LSL, which I commend you for the report that’s come down today.

Thank you. And I think they’re coming later on to-

Yeah, we’ll be there.

Yeah, no, that’s what I thought. Yeah, you’ll be asking the questions, yes.

Yes. As we have been in every session for the last two years. The loss of coal miners, basic leave and other entitlements and the threats of dismissal. So these remain outstanding and still to be addressed. And we’ll be talking more about that tomorrow.

Yes.

What I see, minister… I’ll let you finish.

[Michaelia] No, I’m just having a look at something you’ve written, just to make sure I’m all over it. Yep.

My question is basically the exploitation of casuals, is I believe a symptom of a highly complex, needlessly complex industrial relations system that is not serving workers, not serving small business, and not serving some employees, and families and workers are getting jammed in the middle.

[Man] Does the report correctly address?

We see large companies, multinationals in particular, using casuals to bypass industrial relations systems instead of sitting down and negotiating with their workers and with the union we just see a bypassing through casuals. So what I’m asking you is, is there any understanding in your department that the exploitation of casuals is a signal or a symptom of the fractures in the industrial relation system?

Okay, there was a lot of commentary there but what I might do is hand over to Mr. Hehir, who obviously has looked at the job security report, and get him to take that question.

Thank you, Senator, for the question. In terms of the the casuals, it’s probably just worthwhile clarifying. So where casuals are employed by the company themselves they are still subject to the same industrial instruments that the company has either negotiated or the Fair Work Commission has made. So in terms of where the company itself is the employer, there is the negotiation and discussion process that you talked around the company having with its employee, where there’s an EA, should have occurred. So certainly there should be clear processes within any enterprise agreement around how the various employees will be treated and what they’re entitled to. I think in part, you are referring to the combination of casuals and labour hire?

[Roberts] Yep, thank you for picking that up.

So that does make for a more complex situation recognising that labour high would regard as less than 2% of the workforce traditionally, but it is an important mechanism that is used by both host employers for short term work when they need it. And as part of when the need arises. So recognising that it’s an important and valuable part of the economy. It’s clear that when it leads to different rates of pay it does cause some level of confusion. In terms of-

And beyond that it causes some kind of angst as well, and is not very helpful for safety.

I accept that. And I know that there’s been a number of comments within the report itself around that broad issue. It’s certainly something that the department will look at very carefully. It has been raised both within the main body of the report, as well as within your comments, in terms of how does that work? The reality is The Fair Work Act and the framework upon which it sits was designed around an employer being the legal entity that actually employs the person rather than necessarily the location where they work. So that’s the nature. And the Fair Work Act is clear that we have minimum rates of pay. But what we actually wanna see is higher rates of pay than the minimum, being negotiated by employers and employees. So that’s, I think one of the very clear principles within the bargaining provisions within the Fair Work Act, that we actually want to do that. The only mechanism that… and the mechanism is focused on the individual businesses. And in this case where you’ve got two businesses working, or the employees of two businesses working in the one location. I agree that can cause angst and confusion but it’s certainly something that we need to have a look at in response to the work. And that’s something that we’ll provide advice to the government on once we’ve had the opportunity to finalise our analysis of the report. But I having said that, the very important focus within the Fair Work Act is that we do want people to bargain. We do want businesses and employees to get together and to think about how they can increase productivity and then share that productivity in the form of increased profits and in increase wages. So, and the clearest mechanism to do that we feel at this point is on an individual business basis.

Thank you. You gave us a comprehensive understanding of, and I know you’ve got that, of the casual work situation and the abuse of that. And I’m certainly validating that some casuals want casual work, and I’m not just talking about the coal industry here, but even in the coal industry some casuals do want casual work. They prefer to have that option but there has been some abuse of that. And I believe that the complexities of the industrial relations system in this country right now make it as such that some employers, rather than facing up to negotiation they will bypass that and establish a labour hire relationship. Some labour hire companies are good employers, some are not and some rely upon basically cutting wages so that they can make a profit by getting the margin and still leaving the business owner with superior profits. So that’s definitely a strategy that we can see. So my question that I don’t feel was answered was that do you consider that the complexities… And the Act is what, this high? 600 odd pages? the complexities of that Act lead to workers, small businesses in particular, and even some big businesses, not having clear understanding of the employer-employee relationship. And so we dive into all kinds of other arrangements.

Senator, the Fair Work Act is a substantial piece of legislation. It does have a number of parts. But we’ve certainly heard commentary in the past that it’s complex and difficult, and we acknowledge that commentary. At the same time, and we do understand the importance of this as well. There are important workers protection, in terms of the bargaining process and other things in terms of making sure that the bargaining is done fairly. And certainly there is some concern that those procedures inhibit the bargaining but they’re also really important in terms of the principle of making sure that the bargain is fair. So getting that balance right is something that we continue to think about. We as a department, we honestly really engage in the discussion around productivity growth. We think it’s a significant issue for Australia and large parts of the Western world that productivity growth is low. And we would certainly encourage parties to bargain. But the reality is that the Act is based on both providing the opportunity to bargain but also making sure that those bargains are fair. And I think that’s sometimes where we see the complaints about complexity always happy to have a look and say, how can we attain that fairness in a more simplified fashion? And that’s where we-

And Senator Roberts, I mean, you often come with the Fair Work Act and the various iterations of it in terms of just to demonstrate how big it is and how much both employers and employees have to navigate. Because it’s both parties understanding their rights and obligations. And certainly without a doubt, it is a complex Act. And it was one of the reasons, you and I discussed this. It was last year now, I think, the stimulation to the reforms to casual employment providing a definition, to provide clarity, as to what a casual is. Offering the ability to convert to permanent work, clarifying the Rossato decision, the devastating 39 billion impact on the double dipping and what that would’ve done to business. So I do agree with you and we certainly have been able to make some headway in relation to parts of it, but obviously the other parts of the omnibus bill didn’t get the support, but they are, I think, some concrete examples of where you can actually put in place. So for example, an actual definition, give the ability to convert, clean up a court decision and actually give certainty to employers. But I certainly acknowledge that this is something that you raise time and time again.

Yeah, and the fundamental-

Can I just check how long we have to go? I usually like to rotate the call every 15 minutes,

Another 10 minutes.

That’s absolutely fine.

What I’m getting at, minister, is that the fundamental problem is that despite the intentions of everyone involved the Fair Work Act, the previous work choices attempt the marren complexity, lack of understanding the fundamentals. And what’s happening with the Fair Work Act is that the workers and some small businesses and even some large employers are sidelined in favour of the industrial relations club. Lawyers, consultants, HR practitioners, large union bosses, large industry groups and the worker is sidelined. And so do you see any need then for restoring the primacy of the workplace relationship, the employer-employee relationship, and I know that the fair work Act, Mr. Hehir, does have protections in it, but when it’s so complex, the protections get lost. And so making it clear on workers’ rights, entitlements, protections, safety, which I know assist productivity. So instead of these things being bypassed they’re actually entrenched and allowing for flexibility because more and more workers today see alternative structures of work and work times in particular whether it be uni students or small businesses or casual coal miners, they want that.

And I think you make an important point in terms of the ability for, in particular employees, to choose the type of work that they want to want to undertake. And that is why you’ll never find the coalition government in any way, demonising casual employment as so often happens. And in particular, in this committee it is a valid form of work that so many choose. And when we can take you through the statistics in relation to casual employment. But also that landmark reform that we did pass in terms of that ability to actually convert should you wish subject to certain conditions. Again, it’s about giving both the employer and the worker, the employee, the choice to do that. Just in terms though of people actually understanding their rights, very important obligations, very important under the Fair Work Act. I think a lot of the work that The Fair Work Ombudsman does and in particular, that investment in its educative role is so important, working with small businesses, because there’s often the small businesses that don’t have that capacity to understand the Fair Work Act. And they’ll be on later on today, if you want to come back and ask them questions in terms of what is the educative role of The Fair Work Ombudsman.

We asked that at the last estimates.

We can get an update then of these estimates. But that’s a really good point because it’s not just about the Fair Work Act itself, as you’ve acknowledged, there are other ways and means, and one of them is ensuring that The Fair Work Ombudsman is able to get out there, talk to employees, talk to employers, and actually educate them on what their rights and responsibilities are.

I know that I’ve had a very positive response and fact agreement that David Newman from the CFMEU, Michael Raba from the CFMEU and from Queensland, from the Business Council, Australia, from Small Business Associations, that they’d be willing to sit down in a process to explore a much simpler and better and more effective industrial relations frame work. So I know an election is coming so I’m not expecting you to make any commitment and this is a touchy area but is there any appetite for that if it’s done properly?

Oh, well, I think when you look at the work that the coalition government has done you look at the omnibus bill that we brought forward. I mean, that was certainly done in a period of over 12 months, I believe. In terms of the consultations amongst different stakeholders. Unfortunately, when we brought it to the floor of the parliament, it wasn’t supported by the Australian Labor Party. But I think our appetite for making things simpler and in particular, as I said, the coalition reforms through casual employment and in particular cleaning up the issue of double dipping and the potential devastating impact of the $39 billion impost on business, I think does show a genuine commitment to working with all stakeholders to improve the system.

And with due respect, I just wanna finish with this point. I think that that casuals conversion was needed and essential. The shame was bogged down in so much misrepresentations by a lot of people, but quite frankly, I think that was tinkering and not reform. It was reform of casuals, but not reform of industrial relations.

[Michaelia] Understood.

Thank you, Senator.

Thank you, chair.

[Michaelia] A lot of .

I’d like to say one thing. As the minister indicated the casual amendments, the bill, that does introduce the national employment standards casual conversion and national employment standards. And does simplify assistance prior to that introduction into the NAS, you got a different conversions in the awards in the enterprise agreement, in the particularly black coal mining industries, there are confusion about whether the peoples are eligible for conversion or not. There are peoples who may not have a conversion, there was a gap. So by introducing it into the Fair Work Act as a national employment standards that provides a universal right to all the employees and in certain ways also simplified the systems.

And I accept that and appreciate what you said, Ms. Yang. The fact that the black coal mine award prevented, excluded casuals yet there was still casuals under various types of enterprise agreements, which were not, I don’t believe they complied with the law, indicates that the industrial relation system is a mess. But that’s why we supported the introduction of casual conversion because it does clarify things for people. But there’s a long, long way to go to fix this mess.

Yes, and the casual conversion does now apply to the people’s covered by the Black Coal Mining Award.

Thank you, Chair.

Thank you, Senator Roberts