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Nobody is Immune to this Labour Hire Fix

This is my latest letter to Tony Burke, Minister for Employment and Workplace Relations.

I’ve been pursuing an outcome and accountability in this horrific labour hire case for over three years now. This is the immoral saga of a mine owner in bed with the union, which has its claws into superannuation, and the government is deliberately turning a blind eye. Workers are getting swindled. Simon Turner was done out of his entitlements, his health, his job and his life. There is an $8 billion black hole hiding in plain sight. 

You might think it won’t affect you. It’s just mining companies wanting cheaper labour. The union’s are happy to comply and they get a cut on the side. This rip-off needs a thorough investigation. People are no longer protected by the government, their unions, industrial relations laws, and certainly not by these corrupt foreign companies.

If this can happen to Simon Turner and hundreds of others in the Australian coal industry, it can just as easily happen to you.

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Coal LSL Under Question

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At the May/June Senate Estimates I asked questions of the Coal LSL Board to establish that a person working under an Enterprise Agreement contract cannot receive benefits less than the agreed award for the same category.

Under the Black Coal Award there’s no category for casuals because casuals are not allowed to be employed under the Black Coal award.

The Board confirmed that they do not check which category a coal miner works when calculating long service entitlements, merely accepting what the employer tells Coal LSL.

All this contributes to coal miners being exploited in not getting their entitlements.

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Fair Work Fails Exploited Workers

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This is a case of the Ombudsman adding insult to injury.

In the May 2023 Senate Estimates I asked the Fair Work Ombudsman how their office decided that Ready Workforce could be a person’s employer when payslips, PAYG summaries, employer Super contributions and all ATO records indicated that the true employer was Chandler MacLeod, a labour hire company.

Apparently the investigation is continuing.

Transcript

Senator Roberts: Ms Parker, is it true that, prior to your position at the Fair Work Ombudsman, you were the assistant secretary for the Department of Employment and Workplace Relations?

Ms Parker: I was Deputy Secretary, Workplace Relations Group.

Senator Roberts: In your role as a deputy secretary of the Department of Employment and Workplace Relations, were you aware of the appropriation monies that the department sent to Coal Long Service Leave?

Ms Parker: Yes, I was.

Senator Roberts: Were you involved in the production of documents table for the annual financial reports for the department whilst in that role?

Ms Parker: In terms of the Coal Long Service Leave, that agency provide its own reports and its own financial reports.

Senator Roberts: But, given that you were the deputy, wouldn’t you have taken an interest in something that was worth a few hundred million dollars?

Ms Parker: We’re going back a way, but it was part of the overall reporting, for example under the annual report. But they were independent, in that sense. They were an agency that managed their own resources, so we didn’t have—

Senator Roberts: But you compiled the report.

Ms Parker: No, not for their own financial—

Senator Roberts: Not for their part, but you compiled their report into your department’s.

Ms Parker: That’s generally speaking. I’m just trying to think back. Our own finance area within the department looked at every single outcome, so, while they sat under the workplace relations auspice, if you like, the financial arrangements and et cetera were done through our finance and corporate areas in the department.

Senator Roberts: Is it true that the Fair Work Ombudsman reported Simon Turner to New South Wales Police recently about a document?

Ms Parker: I’ve not heard that.

Senator Roberts: He was contacted by the police. He wondered what was going on, and the police said it was in regard to an email he sent. I think it was to Robert Evans, Fair Work Ombudsman investigator. Mr Turner then read the email to the police. The police then said he’d been through the wringer and ended by saying there was no need to see him. Why did the Fair Work Ombudsman involve the police?

Mr Scully: I recall the email. I looked at it. I haven’t got a copy of it here, but I was concerned about the language in it, and I was concerned about Mr Turner’s welfare based on that language. So I asked for a welfare check to be done by the New South Wales police on that person.

Senator Roberts: Given what he’s been through, I have the utmost admiration for Mr Turner. He’s very, very solid.

Ms Parker: He is, but there are times when we get aggressive, abusive emails—

Senator Roberts: I’m not criticising Mr Scully.

Ms Parker: That was this occasion. I take those things very seriously, and it’s not acceptable. I understand he has had some stress—

Senator Roberts: Stress? Wow.

Ms Parker: I understand, but it doesn’t entitle him to be aggressive towards Fair Work Ombudsman staff.

Mr Scully: If I can clarify, that was for a welfare check. I asked for a welfare check on Mr Turner to be arranged by the New South Wales police.

Senator Roberts: Thank you.

Mr Scully: To clarify that further, it wasn’t in respect of any interactions he had had with the Fair Work Ombudsman. It was the language within his email. I was actually concerned about his welfare.

Senator Roberts: How long has this investigation been going? I understand it’s been underway since 2018.

Mr Scully: I haven’t got the exact date in front of me, but it has been ongoing. Mrs Volzke might have some more information.

Mrs Volzke: There have been a number of inquiries or requests for assistance made by Mr Turner. The initial one, as I understand it, was subsequently completed, but then there are other concerns that he has more recently raised about pay slips, as you know. That investigation is still ongoing, but we hope to be in a position to finalise it shortly.

Senator Roberts: I hope so.

Chair: I’m a bit reluctant to be talking in detail about an individual. If it’s helpful, Senator Roberts, maybe we can talk about the particular case you’re taking forward, rather than the individual. I also might have a bit of a discussion with the committee. I don’t think this should be on—

Senator Roberts: Mr Turner has given me his permission to divulge his name so that the case is clear.

Ms Parker: I would say that I know that you may not agree but the Fair Work Ombudsman staff have put an enormous amount of time and effort into this matter and have taken it very seriously. It’s a complex issue—

Senator Roberts: Very complex.

Ms Parker: and I hope you’d appreciate we have been doing a lot of work to try to assist. It has been going on, as you said, for some time, but it’s not a simple matter.

Senator ROBERTS: Perhaps you could ask that question of yourself after I ask the next few questionsinvolving one of your Fair Work Ombudsman investigators. Mr Robert Evans has a—

Ms Parker: Sorry, Senator; I thought we had agreed we wouldn’t talk about individuals. I’m very happy for you to talk about an inspector. I’d really prefer you didn’t name him. There have been some issues, as I mentioned before, including some aggressive behaviour towards my inspector.

Senator Cash: Chair, I don’t think Senator Roberts deliberately did that—

Chair: Absolutely not.

Senator Cash: but I think you are right, going forward, given the nature of the issues.

Chair: Yes. Given the nature of the issues that have been raised and the answers that have been given, can we be very mindful of the appropriateness of going into any details.

Senator Roberts: Is it true that a Fair Work Ombudsman investigator has an ATO document that states Ready Workforce was not the aggrieved miner’s employer?

Mrs Volzke: As I said, there is still an ongoing investigation in relation to the tax documentation and how that goes to the true employing entity of a particular individual. As you know, we’ve been looking at those issues and trying to engage not only with Mr Stephens and Mr Turner but also with the ATO. I’ll have to take on notice the question about that particular document that you refer to. I have to say I have no knowledge of it.

Senator Roberts: Is it true that the Fair Work Ombudsman investigator has been given a copy of a court decision that states that Chandler Macleod was the true employer of the aggrieved miner and not Ready Workforce?

Mrs Volzke: The name of the case escapes me at the moment, but what I would say is that that was a case that was particular to the individual in that matter. It’s not necessarily the case that you can extrapolate from those findings in that matter about a particular person and say that that must mean the same conclusions will be made in relation to—

Senator Roberts: I would strongly disagree with you. You’re entitled to your opinion. It’s quite clear tome. Can you explain how a Fair Work Ombudsman investigator could come to a decision that Ready Workforce, ABN 037, was the aggrieved miner’s employer?

Mrs Volzke: Again, talking at a broad, general level, whenever we’re trying in one of our investigations towork out who the employer is, the first place to start is always: what is the contract of employment that is enteredinto? It is from that that we work out where the entitlements flow. That’s on the basis of a number of High Courtcases—Rossato, Jamsek, Personnel—but even the current definition of casual in section 15A of the Fair WorkAct essentially gets you to the same place.

Senator Roberts: I understand you have to check, but the Fair Work Ombudsman’s decision is in direct conflict with all the evidence documents given to the Fair Work Ombudsman investigator, which showed payslips, PAYG summaries, tax documents, employer super contributions, Coal LSL contributions and all ATO records held by the aggrieved miner, who was paid his wages by Chandler Macleod using ABN 052.

Mrs Volzke: Again, we obviously don’t want to get into details, but you start with the proposition that, on the basis of the documentation at the time, that employment was entered into. Unless there’s a variation or some other sham or estoppel mechanism that casts doubt on that, those other matters don’t necessarily displace that. You’ll also know that we have made inquiries with the relevant employer in this case, as well, to seek an explanation about the discrepancy in relation to their ABN being on those pay slips.

Senator Roberts: The court ruling also stated that Chandler Macleod, ABN 052, was the true employer. The court affidavit showed that the mine contract was with Chandler Macleod and all payments from invoices from the mine went to Chandler Macleod, ABN 052. On this basis, I can’t see how it’s possible at all for your Fair Work Ombudsman investigator to arrive at a decision that is in direct conflict with all of this evidence.

Mrs Volzke: Again, Senator, I think you’re quoting that particular court case, which was in relation to another individual, and drawing conclusions. I would reiterate what Ms Parker has already said. We are doing the most thorough investigation that we can. We understand the concerns that have been raised. I don’t really know—

Senator Roberts: They’ve been raised, alright—with the Fair Work Commission; with the Fair Work Ombudsman; with the CFMMEU in the Hunter; with the local Labor MPs, state and federal; with the Attorney-General’s Department twice; with senators; with coalmines insurance; with Coal LSL; with state departments looking after safety, reporting injuries, workers compensation—

Mrs Volzke: It may well be in those—

Senator Roberts: He’s taken it up with me, and I’m the only one who has persisted. And it’s taken me four years to get to this point.

Mrs Volzke: It may well be that, in terms of what you’ve described, particularly in labour hire industrieswhere there are complex employment and corporate arrangements, it may be easier for there to be complexity inworking out who the employer is. I think these are issues that the government is looking at also, in the context of’same job, same pay’.

Senator Roberts: A hell of a lot of government departments have looked at it, and they just don’t do anything. They don’t come back with a ‘yes’ or ‘no’. They just don’t do anything, and yet they’ve given him assurances along the way. There have been so many parasites who’ve made money off these people along the way.

Mrs Volzke: Senator, as I’ve told you as well, it’s our job as the regulator to apply the law, and that’s what we’re doing our very best to do here.

Senator Roberts: Well, it’s a bloody slow process. This man and one of his mates, who’s in a similar position, have been to the Department of Employment and Workplace Relations recently and had two briefingswith their senior people. The last was two weeks ago, and they still haven’t got back to him—not even anything.They were impressed with what he said and what he gave—but nothing. So I’d like to table this document, Chair.It’s a letter from Chandler Macleod to the CFMEU in the Hunter Valley.

Chair: You have another four minutes, Senator Roberts.

Senator Roberts: That should do it. This is a letter from Chandler Macleod to the CFMEU Northern Mining and New South Wales Energy District. That’s Hunter Valley CFMEU, if you like, with a few mines outside the Hunter Valley. I’ll read out clause (c), which is at the top of the second page:The CFMEU and Chandler Macleod would present this EA—that’s enterprise agreement—to employees for their consideration, noting that both parties support the approval of the proposed EA and a vote would beheld as soon as possible, and as early as 7 May 2015 seeking employees to endorse the proposed EA—There’s an understanding of an agreement between the CFMEU in Hunter and Chandler Macleod, the employer. Clause (d) states:The CFMEU would agree—this is what the employer is saying, in their understanding—to cease from any current and future actions and claims (in its own right or on behalf of members) directed towards ventilating and agitating its view that employees currently engaged by Chandler Macleod companies as casuals to perform black coal mining production work may be entitled to “leave and other entitlements” associated with permanent employment or that Chandler Macleod is not paying employees their “lawful terms and conditions”. The union obviously agreed with this, because it went further. The union and Chandler Macleod are clearly colluding to strip entitlements and pay off workers at Mount Arthur mine. If it is the case that unions, purporting to represent miners, are actually colluding with employers and if all these government agencies are not doing their job over many years, what the hell does this man do?

Ms Parker: I have not finished, and we have been—

Senator Roberts: I certainly haven’t. I’ve got three aims. I’ll tell you about them later, if you like.

Ms Parker: We anticipate being in a position to finalise these in the near future, as we’ve said, and we’re still working on this. I’m sorry it’s so frustrating, but we have not stopped looking at it.

Senator Roberts: It’s more than frustrating. It’s damn painful. It’s hurting a lot of people in Central Queensland and in the Hunter and elsewhere.

Ms Parker: We understand, but we do have to apply the law as it stands, and that’s what we’re trying to do.

Senator Roberts: Are you aware of the many connections between various involved entities? For example, the lawyer representing the CFMEU in a case was Jennifer Short, who’s on the Coal Long Service Leave Board. She was employed as the CFMEU lawyer. These are just some of the interactions. There are many interactions between mining industry groups, mining companies, labour hire companies and the CFMEU in the Hunter. Are you aware of the many interconnections? You are now.

Ms Parker: Well, I think so. Certainly it’s not particularly relevant to our investigation, but it’s context.

Mrs Volzke: Certainly. Senator, the two clauses that you read out from that Chandler Macleod letter—when an agreement has been approved by the Fair Work Commission, which I’m assuming is what occurred here, then we take it as a given that it’s gone through the processes that need to occur within the commission. I know that Mr Furlong—

Senator Roberts: Mr Turner’s evidence shows that it hasn’t gone through correctly. It could not have gone through correctly, because it doesn’t comply.

Ms Parker: We heard our evidence this morning with the Fair Work Commission on that, which is theirresponsibility. We did listen to that.

Senator Roberts: Minister, quite clearly, the Fair Work Act has failed. It needs not just comprehensive reform; it needs replacement. We need something that is short, simple and clear, that workers can understand, that small businesses can understand and that is actually useful not to the industrial relations club but to the actual workers who need to be protected. Workers like these guys that we’re protecting in Central Queensland and the Hunter Valley are without any protection right now. What’s going on with these people is stuff that would come from a Third World country or Australia 100 years ago. It’s unfathomable. I was shocked when I saw it. What is even more shocking now is that no-one can address it. That’s the Fair Work Act and its systems.

Senator Watt: Senator Roberts, you’ve heard from Ms Parker that the ombudsman is investigating thesematters. But, as I said to you before, the government agrees that the Fair Work Act needs a major overhaul tobetter protect the rights of workers and to close loopholes that exist at the moment, many of which you havetalked about. I think, Senator Roberts, you know that I’ve spent a fair bit of time in coalmining regions inQueensland where we’ve seen a lot of exploitation of coalminers, and that was allowed to go on under the formergovernment. So we hope that we can count on your support when it comes to the amendments that we’re puttingforward.

Senator Roberts: You’ll get my support for amendments that actually fix the issue, not prolong it and add more complexity. The problem with this Fair Work Act is its inherent complexity. That’s what has enabled the IR club, some union boss, some large unions, industry groups, employers, consultants, HR practitioners, lawyers and bureaucrats to feed off this monster. It’s the loopholes in the details. If you keep addressing loopholes, you’ll just create more loopholes. We need something that’s gutting the Fair Work Act and replacing it with something for workers and industrial productivity.

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Stop the Lies and Dirty Deals Stealing from Miners!

My letter to Tony Burke MP, Minister for Employment & Workplace Relations, dated 26 June 2023 is clear on the facts that workers were deliberately exploited.

When union bosses collude with dishonest multi-national employers and unaccountable government agencies, workers are left with no protection.

I have been working for four years to reverse the serious violations stripping workers of their rights, protections and entitlements.

That’s why I continue, after almost four years, to champion tens of thousands of workers across Queensland and in the Hunter Valley, NSW.

Why have Labor & Liberal-National federal and state governments ignored basic questions?

Stop the rot, Minister Burke. The ball is now in your court.

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Labor silent on dodgy union deal to rip off coal miners

In order to be endorsed, an enterprise agreement must first pass the Fair Work Commission’s better off overall test (the BOOT). Simon Turner has always argued that in his case this test could not possibly have been satisfied. He’s right.

Evidence from the Fair Work Commission itself has recently emerged, proving this test was never applied to the enterprise agreement, stealing from Mr Turner and hundreds of casual coalminers employed at BHP’s Mount Arthur mine in the Hunter Valley.

Transcript

As a servant to the people of Queensland and Australia, I now bring you up to date with the fraudulent behaviour that’s resulted in huge wage theft and the stripping of entitlements from Hunter Valley coalminers and from Central Queensland coalminers. You may recall from my many previous Senate speeches on this topic that on 14 April 2015 labour hire company Chandler Macleod Group, in collusion with the Hunter Valley CFMEU, submitted an enterprise agreement to the Fair Work Commission for approval. The Fair Work Commission went on to approve the enterprise agreement even though the agreement did not pass the BOOT assessment and contained false and misleading statutory declarations statements from the employer, Chandler Macleod, and the Hunter CFMEU’s Mr Shane Thompson.

The effect of the enterprise agreement was to strip protections of the Black Coal Mining Industry Award from the coalminers, pay them significantly less than the award, and remove entitlements including workers compensation and accident pay, annual leave, long service leave, superannuation, sick leave and holiday pay. The miners were not compensated with a loading to their pay rates, and they were much worse off under the enterprise agreement than under the award. The Black Coal Mining Industry Award did not authorise the use of casuals in the production side of coalmining. The enterprise agreement was contrary to this limitation under the award. The Fair Work Commission accepts—indeed, confirms—that an enterprise agreement cannot provide conditions less than the award, yet this enterprise agreement did exactly that.

At a meeting held on 13 April 2015, the Hunter CFMEU agreed with the employers, Chandler Macleod Group: ‘The CFMEU would agree to cease from any current and future actions and claims in its own right or on behalf of members directed towards ventilating and agitating its view that employees currently engaged by Chandler Macleod companies as casuals to perform black coalmining production work may be entitled to leave and other entitlements associated with permanent employment, or that Chandler Macleod is not paying employees their lawful terms and conditions.’ This letter, of which we hold a copy, is damning as to the sickening deal that the Hunter CFMEU made with Chandler Macleod Group to not represent the interest of the member miners, who were now to be dudded of their entitlements and protections and have their wages stolen.

Injured miner Mr Simon Turner has been fighting for his entitlements since he was injured in the mine almost nine years ago, smashing his back and being denied his rightful compensation. Simon was made totally and permanently disabled for life. It’s now very clear that the Hunter CFMEU, in cahoots with the employer, Chandler Macleod Group, and together with an incompetent or possibly dishonest Fair Work Commission, have denied the back payment of all black coal entitlements for all full-time employees and then doubled down on these actions in endorsing an enterprise agreement that removed the legal minimum statutory requirements.

In order to be endorsed, an enterprise agreement must first pass the Fair Work Commission’s better off overall test, or, as it’s known, the BOOT. Mr Turner has always argued that in his case this test could not possibly have been satisfied. He’s right. Evidence from the Fair Work Commission itself has recently emerged, proving this test was never applied to the enterprise agreement, stealing from Mr Turner and hundreds of casual coalminers employed at BHP’s Mount Arthur mine in the Hunter Valley.

In relation to a request for documents pertaining to the Chandler Macleod Northern District of NSW Black Coal Mining Agreement 2015 and the Chandler Macleod Gunnedah Basin Coal Mining Agreement 2014, a note from the Fair Work Commission says: ‘I have checked both matters and they do not contain the BOOT assessment. It appears the BOOT assessment was not undertaken for either matter. If one was undertaken, a copy of the assessment would be on file.’ The note’s author goes on: ‘has provided you with a complete copy of both files. There is no other documentation or further information we can provide you for these two matters.’ This is damning information. If the enterprise agreement was entered without a BOOT assessment, it could not possibly pass the BOOT and should be considered void. This whole exercise needs to be reviewed so Mr Turner and other coalminers can finally receive their lawful, moral and fair entitlements and compensation.

Despite obstruction and misrepresentations from Labor and LNP governments, we have persisted with this issue for four years. We will continue relentlessly until Simon Turner and his fellow Hunter Valley and Central Queensland coalminers obtain their entitlements and justice. We in One Nation support workers because like our party’s founder Pauline Hanson, we value honesty, fairness, justice and Australians’ values, including mateship and a fair go.

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The market is not abandoning coal, the government is forcing the market to abandon coal

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Australians are constantly told that banks, electricity markets and buyers are all turning away from coal and gas because it’s too expensive or the buyers just don’t like it anymore. It’s bullshit.

It is the Government that is applying direct pressure on coal and gas while it gives wind and solar a free ride. There is a sneaky, hidden piece of legislation called the Renewable Energy Shortfall Charge that is enforced by the Clean Energy Regulator (CER).

It forces your electricity company to buy a percentage of all of their electricity from wind and solar complexes. If your electricity company buys too much coal or gas fired electricity, they have to pay to buy green credits (generation certificates) off wind and solar generators or they will be fined.

Like slowly boiling a frog, the percentage of wind and solar your electricity company is forced to buy has been ratcheted up from 0.65% in 2001 to 18.64% this year. The increases are only accelerating.

So remember when anyone tells you “the market” is abandoning coal that it’s a lie. It’s only the government that’s choosing to abandon coal.

Transcript

Senator Roberts: I want to get help with an issue that constituents want to understand and so do I; I don’t understand it. It has relevance to the primacy of energy costs in the budget. I’m hoping to get into a relatively complex area and get your evidence or confirmation on how the renewable energy shortfall charge, under the Renewable Energy (Electricity) Act, works. Perhaps you could bring anyone to the table who has expertise in that.

Mr Parker: Sure. Mark Williamson has the expertise.

Senator Roberts: Thank you, Mr Williamson. I will try to step my way through the legislation here, and you can pick me up where I’m wrong or missing something. The renewable energy shortfall charge applies to liable entities?

Mr M Williamson: Correct.

Senator Roberts: Which is defined in sections 35, 31, 32 and 33, and essentially talks about entities that make a wholesale acquisition of electricity.

Mr M Williamson: Yes. For simplicity, these are typically electricity retailers.

Senator Roberts: Retailers.

Mr M Williamson: Yes.

Senator Roberts: Wholesalers?

Mr M Williamson: The electricity retailers are typically the liable parties.

Senator Roberts: Okay; they are the liable parties because they sell it to the end user.

Mr M Williamson: Correct.

Senator Roberts: Okay. Thank you. That’s great.

Mr Parker: Or large users, people directly purchasing electricity.

Senator Roberts: So large users who buy direct can also be facing these charges.

Mr Parker: Correct.

Mr M Williamson: Correct.

Senator Roberts: Can I get you to explain who the liable entities for the renewable energy shortfall charge are in simple terms—again, retail or large users?

Mr M Williamson: I need to frame and explain the renewable energy target for you. It sets an obligation on these retailers or large users who are buying direct to surrender to us each year a certain number of large-scale generation certificates and small-scale technology certificates. Those amounts are based on percentages set each year in regulation by the minister. Effectively, if you’re an electricity retailer, you take your acquisition of electricity in megawatt hours, you multiply it by those percentages and that tells you the number of certificates that you need to surrender to us. If a liable entity does not surrender the certificates or surrenders fewer than they should, that makes them liable for the shortfall charge.

Senator Roberts: So it’s not power generators and not wholesalers; it’s just retail and large consumers, as Mr Parker said.

Mr M Williamson: Correct; and they’re only liable for the shortfall charge if they do not surrender enough certificates to us to meet their renewable energy target liability.

Senator Roberts: Can you talk me through the large-scale generation certificates that you just mentioned.  What are they and what is the effect of surrendering them for that company?

Mr M Williamson: Large-scale generation certificates are issued for each accredited power station that’s from a renewable energy source.

Senator Roberts: Solar or wind, for example?

Mr M Williamson: Correct. Hydro, as well, is quite common. They get a certificate for every net megawatt hour of generation. Those certificates can be used on the demand side to equip liability, so they can be sold to electricity retailers or big users, or they can be voluntarily cancelled to prove the use of renewable energy. For example, you may have heard of the GreenPower scheme. That operates in a way that businesses who want to have more renewable energy use proven, other than just the statutory renewable energy target, can buy and cancel large-scale generation certificates.

Senator Roberts: So a coal-fired power station would not get them?

Mr M Williamson: That’s correct.

Senator Roberts: Definitely not. Solar and wind would. And purchasers must buy at least 18.64 per cent right now of solar or wind power or hydro.

Mr M Williamson: Effectively, that’s the case. I think that percentage you’ve mentioned is the renewable power percentage and so, yes, those electricity retailers or big users multiply their electricity acquisitions by that percentage. That tells them the number of certificates that they have to cancel to us.

Senator Roberts: I’ve got some figures in front me about the renewable power percentage. I’ll just go through them. In 2001, it started—so that’s 22 years ago—and it was just 0.24 per cent, about a quarter of one per cent. Then it went up in the following year. You mentioned that this is a ministerial directive.

Mr M Williamson: The minister sets these percentages, based on calculations that we do each year, but the actual targets are set in the Renewable Energy (Electricity) Act. A certain number of gigawatt hours of generation each year was set in the act. That got to the target, which is 33,000 gigawatt hours, which is set in the legislation from 2020, and that same number continues to 2030. That 33,000 gigawatt-hour target was reset in mid-2015 by parliament. In the early stages of the scheme, there was a table in the act that set the numbers that dictated where that percentage would be set.

Senator Roberts: Is that table in section 39(1) of the act?

Mr M Williamson: I’d have to ask the general counsel to try to find the right part of the legislation.

Senator Roberts: While we’re waiting for confirmation, in 2001 it was 0.24. In 2002, the following year, it was 0.62, and it had slow increments, mild increments, until 2010. It took 10 years to get to 5.986 per cent. Then, from 2011 onwards, it rose, in 11 years, to 18.64. So it was 5.6 per cent in the first 10 years and there was a 13 per cent increase in the next 11 years.

Mr M Williamson: These were legislated increases. That was the way that the scheme was designed.

Senator Roberts: I want to understand this. First of all, I’ve focused mainly on the climate, because I haven’t found anyone who can give me the science that proves the need for this. But I haven’t focused on the energy, and that’s where I want to go in the future. That means resolving some of the complexities. I want to no-understand this because we always hear that it’s the market that’s forcing coal-fired generators out and that one likes coal. Yet it appears to me, with this renewable energy shortfall charge—a fine, if you like—that it’s actually the government forcing the retail sellers and the end users to buy wind and solar energy or, essentially, they’ll be faced with this fine. Is that correct?

Mr M Williamson: The construct of the scheme is that the retailers should buy the certificates. The shortfall charge is only where they do not choose to or are unable to get the certificates that they need. So it’s the default mechanism. But the way the scheme works is that the retailers should get in and be buying renewable energy. That should bring through more renewable energy, and that’s the way the scheme works.

Senator Roberts: It appears deceptive from one perspective. I’m not accusing you of doing that, but it appears deceptive from one perspective, hidden in the complex legalese. Have you ever advertised to the public that the government, through you, is forcing retail purchasers and large-end users to purchase more and more wind and solar?

Mr M Williamson: We don’t do specific broad community education, but all of this is regularly published; it’s published by other bodies, such as the Australian Energy Regulator and the Australian Energy Market Commission. It is generally well known that there’s an obligation on the electricity retailers. As I said, a lot of electricity users are choosing to buy GreenPower and to go further than the minimum statutory target.

Senator Roberts: What we have is a consumer faced with a choice of buying electricity. If they don’t buy an adequate amount or proportion of solar and wind, they will have to pay a charge in addition to the subsidies that the solar and wind producers are getting.

Mr M Williamson: No. The obligation is set with electricity retailers. There are a lot of electricity retailers. In a competitive market, they should source the certificates at the best price they can and have the lowest level of input cost for the renewable energy target.

Senator Roberts: My point, Mr Williamson and Mr Parker—you can correct me or confirm—is that, in my opinion, now that I’ve had it clarified, this is the most significant intervention in the electricity market that the government has ever conducted, and not just this government but previous governments as well. By ministerial directive via legislation, they’re ratcheting up the percentage of renewable electricity that every electricity buyer has to buy, or face a fine over the course of 20 years.

Mr M Williamson: Let me clarify, again, that the underlying numbers that lead to those percentages are locked in the act, so parliament took a decision to lock those numbers in. We do complex calculations to convert that to a percentage and they are put to the minister. The act sets out the things that the minister must consider. This is all set in legislation that was passed in parliament.

Senator Roberts: Thank you for affirming that yet again. My mistake: I thought I said ‘in the act’, but maybe I didn’t. Doesn’t this confirm that solar and wind are much more expensive? We’ve all been hearing the fluff that says people are going away from coal because it’s more expensive. Solar and wind get subsidies; plus, if somebody buys coal-fired power, the retailers or large-end users can be up for a charge. Doesn’t this really confirm that, without subsidies and without a throttle on the coal-fired competition, wind and solar are too expensive?

Mr M Williamson: Not in my view; I wouldn’t agree with that at all.

Senator Roberts: On what basis?

Mr M Williamson: There are incentives in the form of those large-scale generation certificates that go to the generators.

Senator Roberts: The solar and wind generators?

Mr M Williamson: Correct. Effectively, who benefits often depends on the nature of power purchase agreements between those solar and wind power station operators and the retailers. But, in essence, the numbers—if you look at the Australian Energy Market Operator’s Quarterly Energy Dynamics report, every time that wind and solar are setting the price in the wholesale electricity market, the prices are very low and, in some cases, in negative territory. It’s quite clear that, in fact, wind and solar are driving down wholesale electricity prices, which are also an input to retailers and to all of us as consumers.

Senator Roberts: I would say that’s an aberration. What’s happening is that coal is actually being forced out by the governments—I say ‘governments’ plural—and it’s a direct market intervention in addition to the subsidies. The subsidies enhance solar and wind; the charge slams coal.

Senator McAllister: Senator Roberts, in your questions just now and, indeed, yesterday, you mentioned subsidies. Are there any particular subsidies that you’re interested in? I think it’s been challenging sometimes for witnesses to engage with your questioning, because you don’t name them and I’m just unclear what it is that you’re referring to.

Senator Roberts: Subsidies on solar and wind.

Senator McAllister: Issued by whom?

Senator Roberts: Federal government, state governments.

Senator McAllister: Is there a program in particular that you’re seeking information on?

Senator Roberts: No, I don’t have any one in mind in particular.

Senator McAllister: I see. Please go on.

Chair: Senator Roberts, I’m going to wind you up as well. We can come back to you, if you need.

Senator Roberts: I’d just make the point that the market is not abandoning coal; the government is forcing buyers to not buy coal. That’s the point.

Chair: Thank you for your statement.

Senator Roberts: Thank you very much, Mr Williamson, for clarifying.

/by

Why is the FWO taking so long to confirm a casual miners employer?

For more than three years now I have been trying to seek justice for casual coal miners who have been robbed of their entitlements.

In this session the Fair Work Ombudsman reveals the vital tool for identifying the true employer in a disputed relationship: the humble ABN in conjunction with ATO data can identify possible wage theft and other dodgy practices of employers and unions.

The question I have then, why is it taking so long?
/5 Comments/by

Coal LSL – Caught Out

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After an independent report vindicated One Nation and casual coal miner’s accusations of unscrupulous malpractice, the pressure has been on the Coal Long Service Leave Scheme to give workers a fair go and on Government to clean up their agency. Coal LSL initially tried to refuse coming to Senate Estimates and over the course of many more sessions repeatedly denied anything was wrong. We now know that was a lie.

Transcript

Chair.

Okay, thank you. I will go to Senator Roberts.

Thank you chair, and thank you for attending again. And, my first question is going to the to the minister, and I note that the KPMG review of Coal LSL report came out today.

Yes.

I haven’t seen it, but it came out.

Yes, it’s out.

So we’re looking forward to reading that. Thank you very much for arranging that.

Thank you for working so constructively with government on it.

Well, it’s a big concern as you know, for us, the coal miners in Queensland and New South Wales. Now, I note that KPMG was engaged to undertake the review of Coal LSL, in relation to the underpayment and abuse of casual coal miners. KPMG has also conducted the audit of Coal LSL. Doesn’t that create a conflict of interest? And what did you do to manage this conflict? Because the audit could have influenced the review and the review could have influenced the audit.

Look, I don’t regard that as giving rise to a conflict of interest. There was no direct financial interest for KPMG to do anything other than act consistently, with its duties as an independent examiner there.

Senator, I’m aware there was an audit,

and commissioned by the corporations, it’s conducted by PWC.

During procurement processor. When we selected an independent review and a KPMG, we looked at any consultant and at the time with engaged to buy. The corporations may causing a perception of a conflict interest, we have exclude them. So at the time we engaged KPMG and the KPMG wasn’t working with the collective corporations or any other projects, but Miss Pearl Kumar may have given updates on. Are they been engaging KPMG on the consult?

You welcome, thank Senator. Thank you, Senator.

I can confirm that KPMG has not been engaged by Coal LSL to conduct any work. They’ve not been involved in our internal audit programmes. They’re not engaged by the ANAO to do our external audit. So, from, yeah, I think we’re confident to say that any conflict of interest certainly wouldn’t exist with KPMG conducting that work on us.

Now I’m going to leave out my second question because the report may, the review report may address that. So I’ll just go straight to my third. When will Coal LSL fix its broken system that disadvantages coal miners, casual coal miners everywhere? And when would you remove the biassed and conflicted members from the board, so workers get a fair go? I’m talking here specifically about what I see and what we’ve talked about for a long time now. The conflicts of interest with having significant, well 50/50 minerals council in New South Wales and CFMEU from New South Wales involved. When will that be addressed?

Senator Roberts, without wanting to spoil your reading, because you know, spoiler alerts are sometimes needed on these things. One of the recommendations in the report is that there’d be independent directors added to the board and the expectation that that would assist with dealing with the problem you raise.

Okay. Thank you. We’re pleased to hear that. Last question, Chair. The one key resources case where many casual coal miners missed out on their fair pay back pay conditions, seems to have been blatant phoenixing to us. Yet, this rip-off of workers was accepted by your government, the courts, labour and the CFMEU and Hunter Valley. More needs to be done to protect casual coal workers to get equal pay and entitlements and safety. One nation has proposed the equal pay for equal work bill to protect casual coal workers. What are you doing to make sure that this doesn’t happen again people have lost there.

The KPMG report and I’ll paraphrase somewhat here, acknowledges that there has been difficulties and confusion associated with a lack of clarity on what constitutes a black coal worker and also the changing environment and timetables on which people work. It plans out our ways in which that can be dealt with so that we don’t face that problem in future. It also provides some good recommendations for how to resolve those concerns as they have arisen in the past. I’m optimistic that as we implement the government’s response to those recommendations, we will have that in a more satisfactory place for everyone involved.

Because this is affecting tens of thousands of families who are significantly underpaid compared with permanent workers doing the same job. But it’s just one of a suite of issues. This is just, it’s very important to coal miners. And we’ve been relentless in this, and we’re pleased to see what you’re doing, but it’s a one tiny aspect of the bigger picture, which we can.

Look, I share your sincere concern for making sure that this works for everybody. And that’s why I’m really optimistic that what’s come to us through the KPMG report, and all the recommendations to government have been accepted, in, you know one form or another. And I’m really pleased to say that we’ll be working to do what’s necessary to make all of that much more functional for the future.

I look forward to reading the report and thank you chair.

Thank you, Senator Roberts.

/by

Government approach to Industrial Relations disastrous

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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

/1 Comment/by

Why are casual coal miners getting ripped off? Coal LSL at Senate Estimates

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Despite possibly tipping more into their entitlements from working more hours, casual miners pull out less on the other end from the entitlements pool at Coal LSL. I also queried $33 million dollars that has been paid out at Coal LSL with no description of why.

If that wasn’t enough, we also believe there are money laundering risks due to insufficient record keeping and the amount of money being held by Coal LSL. The entire model and governance needs a root and branch review as it is totally inadequate.

Transcript

[Chair]

Senator Roberts.

[Malcolm Roberts]

Thank you, Chair. And thank you for coming again. First of all, The Coal LSL Scheme. The Coal Long Service Leave Scheme was established specifically for the Coal Mining Sector. Is that correct?

[Witness]

That’s correct. Back in 1949, The portable long service leave scheme was established.

[Malcolm Roberts]

Thank you. The objective of this scheme is to provide long service leave for employees in the Coal Mining Sector. Is that correct?

[Witness]

For eligible employees who are defined under the Admin Act? Yes.

[Malcolm Roberts]

The scheme provides the ability for employees to request to be paid extra amounts directly rather than contributing into the scheme. If they do this, it immediately becomes their money rather than going into the pool funded Coal LSL. Is that correct?

[Witness]

You’re referring to the clause on Waiver Agreements,

[Malcolm Roberts]

Yes

[Witness]

Senator, I believe and that is underpinned by a separate regulation, but yes Waiver Agreements are enabled under the legislation.

[Malcolm Roberts]

Thank you. Coal LSL has a guidance note explaining how it calculates the “levies” on the eligible wages for coal employees. It provides two formulas; one for casual employees and one for permanent employees. Casual employees are required to pay the levy on all hours worked. Whereas permanent employees contribute based on a maximum of 35 hours per week. Is that correct?

[Witness]

It’s the employers who are paying Senator, but 3B under the Payroll Levy Collection Act does outline how the different calculations are to be performed by the employer. And they are linked to the employees classification, employment classification but the employer is paying that payroll levy.

[Malcolm Roberts]

So, a casual employee though, accept that so casual employee working the same weekly shifts as a permanent employee pays in more because they contribute on all hours worked whereas a permanent pays not more than for 35 hours. Is that correct?

[Witness]

No, the employer is paying the levy and it is a different calculation. So it is linked to different assessment of hours. That’s correct, but the formula is different between the two classifications.

[Malcolm Roberts]

When it comes to a crowing and taking long service leave casuals and permanents are treated differently again. Permanents automatically get long service leave accrued for the maximum of 35 hours , regardless of the hours worked in that week. But the casual only gets it for the actual hours worked in a week. If the roster patterns of a casual don’t fall neatly in a week, there is the potential for them to work the same shift pattern as a permanent employee yet accrue less entitlement than a permanent on the same shift. Is that correct?

[Witness]

Correct. In the sense we’re relying on the hours reported for the employees working week to inform the accrual calculation for the casual employee. That’s correct.

[Malcolm Roberts]

So casual employees working in the coal mining sector can work the same weekly shifts as a permanent employee, but pay more in levies to Coal LSL through their employer and get a lower accrual of long service leave than a permanent employee. This is despite working the same shifts. They pay in more, their employer pays in more on their behalf but they get less out of it. Is that a fair outcome?

[Witness]

I don’t agree that the employers paying more in that scenario Senator, because they are very different formulas that are linked to the wages that are paid for each in different employee. So I don’t agree that is as simple as the way it’s been described. And I’d also say for the casual who is working the 35 hour week, they will accrue the same entitlement as the full-time equivalent. So if they are working the 35 hour week and the employer reports those hours they’ll accrue that full-time equivalent.

[Malcolm Roberts]

A lot of them are not working that 35 hour week, if they’re on production, they’re on a roster.

[Witness]

We’re relying on the hours and yeah

[Malcolm Roberts]

Yeah, we’ve seen what happens with that relying on employers hours. This is in the past, this is all based on a Coal LSL guidance note, which interprets the act. Given the potential for such an inequitable outcome, is it possible that your interpretation is wrong?

[Witness]

No, I’m confident our interpretations right. It’s been through legal channels over the years and that guidance note is verified. It has not been tested in a court as such but it has been formulated based on legal interpretation.

[Malcolm Roberts]

When the coal, this is the last question on this thread. I’ve got some more on others. When the coal long service leave system was established for coal mine workers. Do you think that it was intended to make one employee through their employer pay so much more and get less?

[Witness]

I don’t agree, that it’s as simple as that Senator.

[Malcolm Roberts]

Sorry.

[Witness]

Okay. The intent of the scheme coming back to the intent of a long service leave scheme is for the employee to access a benefit when they meet certain milestones. So i think the intent of the scheme is structured correctly and that all workers should be able to access an equivalent entitlement when they meet the AES qualifying service milestone.

[Malcolm Roberts]

Okay. So moving on to another topic, do you ensure that casuals are made aware that they do not have to pay contributions paid to coal LSL and that they may be able to X to be paid the approximate 2% cash in hand, so they can elect to take the cash instead of having it accumulated.

[Witness]

Colleague will talk to the detail their regs of a Waiver Agreement.

So Peter Kembrey, General Manager legal calls Hill. Senator there is information on our website in regard to the Waiver Agreements. I think it is important to point out that Waiver Agreements are only available for a small category of employees. So they’ve targeted. The intent of that is for people coming to either on high incomes or coming to the end of over 55 that already have the 8 years qualifying service or have no qualifying service to be able to redirect those contributions as you say, to other forms of savings whether that be superannuation, which is the commonly what we see is, is the conversation that we have with people that are interested in that. So most people in this game, can’t quote don’t count

[Malcolm Roberts]

But those who are eligible for the Waiver, are they notified?

[Witness]

Well, they are not notified individually but there is information in respect of

[Malcolm Roberts]

So they’re not notified. They could have to go to a website, which they might not know about.

[Witness]

Senator. We don’t know the ages of people necessarily who are in the fund.

[Malcolm Roberts]

No, but no employers do it either. Is that right?

[Witness]

I can’t speak for what employers do, but

[Malcolm Roberts]

Do you tell the employers that they need to do it?

[Witness]

Well, we don’t instruct the employers to do it but we certainly make it clear to employees that information in regard to aspects of the fund are contained on the website. There is information in regard to Waiver Agreements, better than say the waiver Agreements. There’s no many people in the fund or a significant minority of people in the fund can actually apply for these.

[Malcolm Roberts]

From the research we’ve done into Coal LSL it would seem that when an employer registers an employee with Coal LSL, that Coal LSL just asks for a name and a date of birth. Does this mean that because you did not take a Tax file number that you are not able to verify that people named are indeed real people that they exist. What do you do to verify they are real people and provide me with a summary of the last three occasions when this was done.

[Witness]

Sorry. The last three occasions we verified people

[Malcolm Roberts]

When you verified someone was done.What was real?

[Witness]

My understanding of the process is when a new entrant comes. Firstly, I say, we are not authorised to collect tax file numbers. That would mean amendments in legislations. So it’s not it.

[Malcolm Roberts]

Is anyone raised that with the government?

[Witness]

It’s been raised, but like, it’s there’s very few entities that can do that. But, so we don’t collect tax file numbers at this point in time.

[Malcolm Roberts]

But you collect names and dates?

[Witness]

We collect names and dates of birth.

[Malcolm Roberts]

And you collect money

[Witness]

And we collect money, Yes. We collect money and we keep records of entitlements but we write to those new entrants into the scheme at the time that they appear on it. So we get their addresses, we contact them and we follow them up in regard to this is what we’ve been told, are these details correct? Particularly in cases where there might be employers registering them in registering them in regard to historical service. So we asked, we say this is what the records we’ve been given. Can you verify these are correct.

[Malcolm Roberts]

So let me continue then. Also from the research we have done, I was concerned to see reference to approximately $33 million in levy reimbursements made to entities with a statement beside it saying, “not readily available”. This is a lot of money to have no detail attached to it. Can you explain what’s happening. And I can give you a reference in the report, given last Senate estimates. The report was EEC-BE20-82, pages 121-144. As you provided to me.

[Witness]

Senator, the further detail that we provided in that written response to the question on notice was to explain why that reference was associated to a number of the transactions. So in the Excel spreadsheet that were provided to you which was data from July 17 to June, 2020 had 5,594 lines. And there was a 100 or 407 odd lines, which had that category. The reason being we insourced our operations in 2017. So when we took over the administration from the previous administrator that resulted in us implementing a new financial system. So all the records live in the administration system going back to day one. So all the historical records reside there which is the employees entitlements, the money in and the money out. We, and in our response to we said it would be an unreasonable division of resources to be able to extract that data because we were only migrating it to our new finance system from 2017 where we’re able to readily access the data through reporting frameworks that had been established. So the period of three months where we had that description that we explained in our response to the QON that was that migration stage. And all of the detail, I’ll say migration hadn’t been established but I do assure you, it will always residing in the administration system but it would be unreasonable allocation of time and money to be able to put a reporting framework around that, to extract that data, as you requested.

[Malcolm Roberts]

So you don’t know about it then. You don’t know

[Witness]

No, we do know about it

[Malcolm Roberts]

But you know about it but you don’t know the identities.

[Witness]

No, we do. It lives in the administration system and should we receive inquiries at a transactional level, We will investigate or access that transaction to pay but to pull thousands, hundreds of thousands of lines of records out of that system, establish the reporting framework to extract that in the timeframe that was needed. It was an unreasonable allocation of resources to extract that. And we’ve provided you with the information that was readily available.

[Malcolm Roberts]

Thank you. I note from records provided that registered and unregistered employers, make long service leave contributions. And then in some instances they claim the funds back. Yet I’ve seen no evidence whether these bulk refunds made by Coal LSL are linked to a list of employees or that if employees are referred to that, they are real people. To me, this leaves open the question as to whether the coal LSL could leave themselves open to claims of potential money laundering. Do you ensure that the money laundering does not happen? And if so, how, how do you do it?

[Witness]

It would be highly unlikely for money laundering to be existing in the fund. For an employer to come into this scheme, through a registration project process, we verify their details through ASIC, ABN and verify their bank banking details. So their, the source information that we rely on to ascertain that the employer or the entity is a found entity. The employer would then need to have an employee in their records for years of years of service and paying a levy for that period in order to see that that employee meets the qualifying service provisions and then ultimately access any reimbursement from the fund should that employee access their long service leave. So it is, there are many hurdles that an employer would need to jump through over a very extended timeline in order to launder money through our fund. So first up, Senator Roberts look at the time, we’ve got a minute left. So the one very quick question or we have to ask you to put the rest on notice, please.

[Malcolm Roberts]

How many board members or members of the bodies they represent have been on either registered or unregistered companies that made contributions and or received reimbursements from Coal LSL? Could you please provide a list of them and the entity names and the dollar value of all the transactions.

[Witness]

The current directors?

[Malcolm Roberts]

Yes.

[Witness]

Senator,

/by