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Fair Work Commission – Award Modernisation & Small Business

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The one thing we here again and again from small businesses is that Industrial Relations in this country is simply too confusing. You just about have to be a specialised lawyer to simply employ someone and be across all of the applicable legislation. The awards and language need to be made much simpler if small business has a hope of surviving. A fair day’s wage for a fair day’s work, and a way to punish dodgy employers who dishonestly try to break the rules: that should be the simple basics of industrial relations but we’ve complicated it far too much

Transcript

Senator Roberts.

[Roberts] Thank you Chair.

Thank you again for being here today. My questions cover a broad range. In the Fair Work Commission statement, dated 9th of April, 2021, regarding the Casual Terms Award reviewed 2021. This review must be completed by 27th of September, 2021. Are you on target for this date? And what has been identified as going over that date so far?

[Luby] Uh…

[Furlong] Ms. Luby

Thanks Mr. Furlong, I’ll take this one as well. Thanks Senator. Yes, the Fair Work Commission is definitely on target for that. That’s a date that was set in the statute and where we’re working towards that. So the Commission has issued a number of information papers outlining the range of casual terms that are found in Modern Awards. A full bench has been listed for hearing to consider a small group of Awards that cover either a large range of employees or have sort of quirky casual terms. And so that’ll be some, I guess some principles or precedent will be set by that full bench and then that will be applied to the remaining Modern Awards. So we’re working through that.

[Roberts] Okay.

With respect.

[Roberts] Thank you. Now from the Casual Terms Award Review 2021, at 12 and 13 of the Fair Work Commission Statement, I note that the Black Coal Mining Industry Award, MA000001, has not been included in the initial review. Yet, the background of that is that there’s a lot of confusion and uncertainty, in the black coal mining industry, because there was no provision in the award for casuals on production. But nonetheless, the Hunter Valley CFMEU did a deal to get that into the Enterprise Agreements. So that meant because there was no award provision, there was no, basically anybody under that EA was locked into permanent casual rort and they couldn’t get out. Now with the legislation that the government introduced in March, there is a pathway to permanent work for all casuals, but I think it needs to be clarified as quickly as possible. Many everyday Australians think it should have priority, the Black Coal Mining Award should have priority for definition of a casual mine production worker, given the harm it’s done to so many casual black coal miners, the lack of that definition. Can you ensure that this Award is reviewed promptly, please?

Senator, well, obviously it’s not for me to determine what order that the Awards are looked at. That’s a matter for the President and full bench presiding over that. I’d just like to clarify that the purpose of these proceedings are to determine whether the casual terms in the Awards are compliant or not contradictory with the terms that were introduced in the Supporting Employment Bill. It doesn’t go to whether there are entitlements to casual work in a particular Award. The issue of whether there should be the possibility of casual engagement under the Black Coal Award, was considered as part of the Four Yearly Review. And I think Mr. Furlong spoke into that previous estimates and it’s been covered in some of our Questions on Notice. That’s perhaps a different issue that could be raised at, and it could be raised at any time, if the parties were to seek to include a casual term for those production employees under the Black Coal Award.

[Roberts] Okay, so there’s nothing to stop a casual worker, who’s on permanent casual rort at the moment, thanks to Enterprise Agreements, from actually casual conversion, if they’re offered that conversion now?

No, I’m sorry Senator. There is no provision for casual employment for a production employee under the Black Coal Award.

So if I might. My understanding of the legislation it covers, because it’s been placed into National Employment Standards, it applies broader than all the Awards. So if someone is a casual, whether there’s an Award term for casuals or not, then the provisions within the Act will apply. So yes, there is a pathway to conversion because it’s been put into the National Employment Standards.

[Roberts] Okay, so thank you. So it overall

[Luby] Thank you, Mr. Hehir. Sorry.

[Roberts] It overrides the Award. So, people

[Luby] I apologise I apologise Senator for not getting that.

[Roberts] Yeah. So just to be clear Mr. Hehir, the people who are working as casuals, when the changes were made in March, will now have access to conversion once they’re offered?

So that’s my understanding because it’s been placed into the National Employment Standards. It expands beyond the award system and does apply more broadly.

[Roberts] Thank you. Because there are a lot of people cursing Enterprise Agreements that basically locked them into permanent casuals. How long after this review

[O’Neill] If I could get your attention Mr. Roberts. We asked a couple questions yesterday about these matters with the conversion. Under 15 employees, there will be a different

[Hehir] Thank you Senator

[O’Neill] situation.

[Hehir] O’Neill.

[O’Neill] But I guess one of the things that we got yesterday that’s important was it’s a test of reasonableness about whether those coal miners will actually be able to

[Roberts] Oh that test is

[O’Neill] Get

[Roberts] Yeah.

[O’Neill] the reasonableness

[Hehir] I think

[O’Neill] Test. Yep, yep.

[Hehir] reasonableness is the goal Senator O’Neill.

Yep.

[Hehir] Well I’m sure…

[O’Neill] Well it’s it’s gonna matter

[Hehir] Council, Senator Roberts.

[Roberts] In the Fair Work Commission Statement, dated 9th of April, 2021 regarding the Casual Terms Award Review 2021 at 12, I note the hesitancy regarding the definition of simple terms. Can you advise if your concerns over language will hold up the review process or have they been resolved?

No Senator. I think that we’re still on track to meet that deadline of the 27th of September.

[Roberts] Thank you. So we’ve been advocating for a fair go for Australian workers for a while now. Since the last Senate estimates round, can you tell me what due diligence has been put in place for Fair Work Commissioners to use to ensure that the boot analysis improves and that we do not see any more failures like the Chandler MacLeod Northern District of New South Wales Black Coal Mining Agreement of 2015? My understanding is that there was no Enterprise Agreement. The Chandler MacLeod initially employed miners under the Award, where there was no provision for casuals. Then they came up with the Enterprise Agreement and that breached the boot test from what we can work out. So we need to make sure that miners are protected in future with Enterprise Agreements that comply with the boot test. Can you tell me what’s being done like that to make sure there’s no more failures?

Just a couple of things on this, Senator. It’s actually been on notice and to a reasonable sort of extent, in relation to the decision about the Chandler MacLeod Agreement, it was approved by Senior Deputy President Harrison. And while the decision was short, she did go to the boot, the analysis of the boot. Ms. Luby can provide further and better detail on it. But every agreement application that is made to the Commission undergoes a very comprehensive, administrative checklist and was performed by specially skilled staff to ensure that the statutory requirements and pre-lodgement provisions are satisfied. And in terms of Ms. Luby saying that 95% of those applications are made and provided to members within five days, that is the process that is undertaking that first step.

[Roberts]Okay, I’m having a lot of trouble hearing you or understanding. Could you just explain, perhaps you could explain. I understand that you’ve given us a reassurance that the process is going to be followed. Could you please explain the boot analysis process? What are the main steps that the commission now undertakes and is it applied appropriately to each case?

The answer to that question is easy, yes. There’s a legislative checklist that is completed by as I said specially trained staff at the Commission. The template of that checklist is available on our website as well. If you’d like to have a look at it, we can certainly table it for you to have a look at. Bit it is a consistent checklist that is performed for every Enterprise Agreement application that is made.

[Roberts] Okay, thank you. I heard it clearly that time, so we’ll check that checklist ourself. We’ve heard that some union bosses are saying that it is the worker’s responsibility not the unions for what is put to the Commission in relation to Enterprise Agreements. Can you tell me then how you ensure that the workers themselves are happy with the Agreement? And what checks do you have to make sure that you’re satisfied that it’s the workers that are happy with the Enterprise Agreement?

Ms. Luby might want to add to this. Effectively there’s an access period, a statutory access period, Senator. That all, every employee who’s to be covered by that Enterprise Agreement has got access to that Agreement and that the employer has gone to reasonable lengths to explain the terms of the impact of that Enterprise Agreement. Ms. Luby would you like to add anything to that?

Sure, Mr. Furlong. So I guess there’s a few strands to it that the member who assesses the application will look at whether the terms and the effect of the terms of the Agreement were effectively explained to the employees. That’s an important test that’s been the subject of a number of federal court decisions and quite clearly laid out, in terms of the level of detail that must be explained to the employees to give them an opportunity to vote in an informed way. And then clearly there is the vote itself, so that there must be a majority of employees who vote for the agreement, who vote in favour of it. So they’re the primary tests.

[Roberts] Thank you.

We’re also quite transparent about the fact that an application has been made. So an employee will have an opportunity to make a submission to the Commission if they choose to do so.

[Roberts] So what recourse do workers have through the Commission or anywhere else, where a union boss fails to do what they promise to bargain for or where they might ignore workers’ needs in favour of their own interests? How do we make sure union bosses’ held accountable in this process for approving an EA, Enterprise Agreement?

I think Senator, the Commission, as I said, we are quite transparent in terms of when an application is lodged. It’s always published on our website immediately. So it’s available for the employees to see before the application is approved. And during that time it’s not uncommon for an employee to contact the Commission and their email or letter that they put in will be sent directly to the member who’s dealing with the application. So if they’ve raised any concerns that will be brought to the member’s attention.

[Roberts] So what you’re saying is, it seems reasonable to me. What you’re saying is that if an employee has concerns about the employer, or the union bosses, that they need to go and check themselves and take responsibility for the Enterprise Agreement themselves before they vote.

Um..

[Roberts] Vote, inform themselves

[Luby] I guess

[Roberts] So they vote in an informed way.

Yes, definitely and it’s the employer’s responsibility to inform them of the effect of the Agreement.

[Roberts] Thank you.

[Luby] So that’s an quite a proactive step that the employer needs to take.

[Roberts] Okay. Have they been

[Furlong] Senator may I also, sorry. I may also be of assistance. If an Agreement is reached, or past its normal expiry date, a party of the employees covered by that Enterprise Agreement, that is past its normal expiry date, can make an application for that Agreement to be terminated.

[Roberts] Okay, so it gets fairly complicated, doesn’t it, quickly? Have there been any cases regarding casual conversion put to the Commission for determination since the changes to the Fair Work Act earlier this year? And if so, how many And what have been the issues and the results?

Senator, I can take that one. There’s been one application so far, under the new section 66M, that application was an employee in the social and community services sector. It was only recently received and it’s been allocated to a member for hearing.

[Roberts] Okay, so one application for an appeal to conversion. Correct?

Yes.

[Roberts] Thank you.

That’s correct.

[Roberts] Now moving onto another topic. Have wage theft cases increased or decreased in the last 12 months?

That’s a matter for the Fair Work Ombudsman. I understand that they’re giving evidence later this evening.

[Roberts] Yes, we’ve got some questions for them. Thank you. Small business owners frequently find that the cost of being away from work to defend a sometimes spurious, unfair dismissal case or other complaint is too much and they end up paying “go away” money, which everyone knows about, to the employee. What is the Fair Work Commission doing, or what could you do, to help small businesses and small business employees, especially given that they’ve done the heavy lifting during the COVID restrictions and downturn? And many are finding it hard now, both employees and small businesses.

I’m not too sure. I understand that the notes of the term “go away” money, Senator. I can’t say that I necessarily agree with it. There are, we receive approximately 15,000 unfair dismissal applications every year. About 80% of those applications are resolved through agreement, through reconciliation process.

[Roberts] What percentage, sir? I’m sorry.

About 80%.

[Roberts] Thank you.

For those that and the vast majority of them are conducted online, so on the telephone, at a time that hopefully suits both of the parties through that process. And there is no obligation, for the parties, the small business that you’re talking about employers to the employees, and to the applicants to settle but if they arrive at a settlement through that process, then the matter is finalised. They can obviously decide not to settle at that point and have the matter dealt with by a member through arbitration.

[Roberts] Okay.

Ms. Carruthers, anything else you’d like to add to that?

Thank you, Mr. Furlong. Senator I might just add as a useful bit of context, that in about 2/3 of cases where money is paid, it’s for less than $6,000. So they are modest amounts of money that are paid when payments are made. And payments are made in around 80% of matters that are settled.

[Roberts] Yeah, my point is that the Fair Work Act, when it’s printed out is about that thick, laid on its side, it’s that thick. It is so damn complex that employees and employers, don’t know what, small business employers and employees, don’t know where they stand. Many employees right across industry, all sizes of companies, don’t know where they stand and that’s not good enough. So with that, there comes, it’s much easier for one to rort the other, employer to rort the employee, and also for people to avoid accountability. So the complexity of the Fair Work Act is really hindering employment and hindering the employer-employee relationship, which is the fundamental relationship on a workplace. So that’s why I’m asking that question because we know talking to small businesses, listening to them, that they are not hiring people at times because of the complexity and their fear of what will happen. And we’ve got to remove that.

Senator there is a part of your question that we didn’t get to is about what we can do or what we are doing. There are a couple of very large projects that are underway at the moment to improve the services of the Commission. One of them, and it’s a very large project, is the redevelopment of our website. And at the moment, the language used on our website is, it’s technical. One of the major change, one of the major improvements, is there’s going to be, the new website is going to be written in very accessible, plain language. We’re aiming for someone with a year level literacy of eight to 10. We’ve also just kicked off a forms redevelopment project that applies or that will be applying data and behavioural insights, so behavioural economic insights. To ensure that the regulatory burden associated with making these applications and that people are informed, as best as they possibly can be, are a part of the process. So we are looking at ways that we can improve our service delivery and we’re acting on them at the moment.

[Roberts] Well, thank you. That’s encouraging. Fundamentally though, the Fair Work Act is highly complex and it doesn’t matter how we dress it up in practical language, it’s still going to be complex. That makes it difficult for both employees and employers to know what they’re accountable for and what their entitlements are. I appreciate you raising that. Thank you. Last questions on just another topic here. Can you please undertake to inform on the status of the Award Modernisation process that you’re undertaking?

You’re referring to the Four Yearly Review of Modern Award are you Senator?

[Roberts] Yes.

Okay. Do you have any questions in particular about the review? It’s a very, very large piece of work.

[Roberts] Is it progressing on schedule?

It is. It’s very close to being finalised. There are a number of common issues and Ms. Luby can talk to that for today’s, but one of the major initiatives that’s still being progressed is the plain language writing or rewriting of a number of Awards that’ve got high, high world reliance. So those Awards that have got a lot of employees covered by them or relying on them to set out their terms and conditions.

[Roberts] So…

Ms. Luby, do you have anything else to add to that?

Certainly. Thanks, Mr. Furlong. Thanks Senator. So the Four Yearly Review has, as you know been going on for a number of years. In terms of the Award specific reviews, there’s only seven Awards that are outstanding of the 122 that we started with. There are five of those Awards that are undergoing what we’re referring to as a plain language review, which goes to the point you were just making, and Mr. Furlong was making, about trying to make the terminology less complex. The others are the Nurse’s Award which is probably, it’s very close to completion. We’re hoping it will be completed by the end of July. A final draught has been published of that Award. And it’s just out for comment to ensure that there are no technical or drafting issues that have been incorporated in it. And the final other Award is the Black Coal Mining Award, where there’s one issue in relation to the interaction between shift work and weekend work penalties and the casual loading for staff employees. There was a conference about that yesterday but I understand the parties couldn’t come to an agreed position, so there’s a further conference scheduled in a couple of weeks.

[Roberts] Okay

So they’re the Award specific issues and then there are a number of common issues across the Awards that have progressed. But again, there’s only a small number of those that are left of the vast number of reviews that were undertaken over the last six years.

[Roberts] So while I see it as tinkering, it is a good step for having modernisation and simplification of the language in particular. So everyone knows where they stand.

Certainly. Senator. We agree.

[Roberts] Thank you. Thank you, Chair.

[Chair] Thank you, Senator Ro…

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Why didn’t Fair Work raise the alarm on casuals? Fair Work Ombudsman at Senate Estimates

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In Senate Estimates today, I continued to pursue the case to support casual coal production workers. I showed the FWO that the hunter valley CFMEU bosses sold out casual mine workers and left them significantly underpaid and unsupported. This union ignored casuals and trapped them in the “permanent casual trap”

The FWO made us all aware that the Fair Work Commission has known about the problem with the lack of a definition for casuals that left them fall through cracks in the IR and WH&S systems. Yet they have done nothing. We stood up for small business and successfully put up and amendment to enable a simpler system for casual conversion for small business.

Transcript

[Chair]

Senator O’Neill could you at least let Senator Roberts.

[Malcolm Roberts]

Thank you all for being here today. First question, in correspondence between myself and the Fair Work Ombudsman, I was disappointed to hear your office repeatedly told casual coal miners that you could not or would not help them, even though their abuses were many. This was because you said that casual black coal miners did not exist, and there’s no provision for them in the award. At this point, the Ombudsman became a part of the problem and not a part of the solution. Why did you not report this gap to the minister or an authority that could fix it? And what can you do to ensure that these sort of abuses by your office and other instrumentalities like Coal LSL do not happen again?

[Ms Parker]

So, senator, we are able to provide basic information around black coal long service leave provision. Is that what we’re taking about?

[Malcolm Roberts]

No we’re talking about the-

[Ms Parker]

Now, my apologies. We’re talking about-

[Malcolm Roberts]

This was about why you would not be able to help them, help black coal mine casual,

[Senator Sandra] Yeah. working casuals in the black coal industry.

[Ms Parker]

Okay. So, has anyone got the… All right then we’ll have a look at… So, in terms of casualization there’s a couple of things happening with this, we’ve been monitoring workpac and rosatto I guess what I would say is we have to… our job is to enforce and apply the law as it stands. And I believe Senator that we have done a lot of work in regards to your requests for assistance, your complaints about the enterprise agreement, the award, the conflict as you say, between the two. And I understand what you have been advised is that you know, once an enterprise agreement is in place it doesn’t have to align directly with the award. So, there’s a contradiction between those two things?

[Malcolm Roberts]

Yeah. I guess the heart of my question really goes to, who did you inform? Which ministers did you inform? Which agencies responsible did you inform? Because this was a problem where there’s no classification of casual in the Black Coal Mining Industry Award. Yet the union did a deal with the employer, that vastly decreased pay rates, substantially decreased pay rates, and enabled casuals with no provision for conversion. So, the union basically locked them into casualization forever.

[Ms Parker]

So, Senator the-

[Malcolm Roberts]

So, they were significant problems and I wanna know, what mechanism you either didn’t follow or you need in the future to be given power so, that you can raise these issues with the relevant authorities.

[Ms Parker]

So, senator the relevant authority is the Fair Work Commission, which ratified the enterprise agreement.

[Malcolm Roberts]

That’s true, it did ratify it.

[Ms Parker]

Well, we he had nothing to do with that.

[Malcolm Roberts]

But Mr. Turner and others raised the issue with you that they were locked in by their union which gave them a substandard deal, and the Fair Work Commission approved it. Mr. Turner originally was employed as a casual under the Black Coal Mining Industry Award even though there’s no classification for it. Then he went to what looks to be a dodgy enterprise agreement that the union signed off and the Fair Work Commission signed off.

[Ms Parker]

Quite possibly. So, we regulate agreements and awards that the Fair Work Commission approves, we have no responsibility to alter them or amend them, that’s not our role, not our tribunal.

[Malcolm Roberts]

But if an employee comes to you and says, I’ve got this problem, can you at the moment go to another group, say, look we can’t fix this because it’s sort of locked in by the union and the Fair Work Commission, but this is a problem that needs to be fixed. The casual problem it could have been fixed years ago, should have been fixed.

[Ms Parker]

So, the Fair Work Commission is aware of this issue, yes.

[Malcolm Roberts]

So that’s what you do? You make-

[Ms Parker]

Well, we have no other option because we are there to regulate an agreement that is published, agreed by the Fair Work Commission, or the award.

[Malcolm Roberts]

So, thank you for clarifying. So, if someone was not aware in the Fair Work Commission, you would make them aware? But in this case they were aware.

[Ms Parker]

We do share information with the Fair Work Commission. They are aware of this issue because certainly it’s been running for quite some time.

[Malcolm Roberts]

You’re right it has.

Okay, let’s move on. You may soon be required to prepare, to distribute and to build awareness in regard to the Casual Employment Information Statement, associated with the recent bill that passed, including employment conditions and to educate both business and employees on their rights and obligations. Please detail what you will be doing to ensure integrity and awareness in regard to this information sheet. And also what systems and support will be in place to ensure prompt, clear and informative support for both business and employees?

[Ms Parker]

Certainly. Chief Counsel Financier you can look in it.

[Jeremy O’Sullivan]

Senator, Jeremy O’Sullivan, Chief Counsel Fair Work Ombudsman. You’re quite right. When the bill that’s just passed the parliament, receives Royal Assent, I think there’ll be a new Section 125 capital A that will require the Fair Work Ombudsman to draught and prepare and Gazette a Casual Employee Information Statement. That work is well underway. There’s some consultation requirements because that statement is required to just canvas some of the work of the Fair Work Commission. So, under I think it’s Section 682 sub 2 we’re required to just consult on with the Fair Work Commission on that, that’s occurring now. And so I’m very confident that we will be able to publish that statement as required by the legislation when it comes into force, shortly after it comes into force. We’re also consulting with the department, obviously is it’s novel legislation, and we will be there for appropriate to make sure that the department with the administrative responsibility for the act is comfortable with if you like, giving effect to this new provision.

[Malcolm Roberts]

So, that’ll give you the instructions in a way?

[Jeremy O’Sullivan]

No, that… Sorry, I’m sorry for interrupting I shouldn’t have done that,

[Malcolm Roberts]

No, that’s fine.

[Jeremy O’Sullivan]

But no it’s up to us to form our view on the crick content but obviously we consult with the department. And we are obliged to consult with the Fair Work Commission under the Fair Work Act as it is now.

[Malcolm Roberts]

And then you check with them to make sure the interpretation is correct?

[Jeremy O’Sullivan]

Yeah. Yeah. I mean-

[Malcolm Roberts]

Okay. That’s good.

[Jeremy O’Sullivan]

Well, in as much as… So, I don’t wanna act like… sound like we’re acting on dictation, we have to form our own view and we’re responsible, and as Ms. Parker is often reminds me, unfortunately, the buck stops with her, so, we just make sure… I just make sure that we give our advice so that we’re comfortable. Now, there is a mechanism under the legislation for us to update or change the Information Statement as required. And of course now, if any matters came to light that we thought it could be improved, and just like we do with our Fair Work Information Statement, we improve. In particularly for readability, ’cause this is not to be a document that could only be-

[Malcolm Roberts]

Just a living document.

[Jeremy O’Sullivan]

Yeah. That’s okay a good point.

[Malcolm Roberts]

Okay. Will you be doing a separate sheet to ensure that small business employers and employees are aware of the requirement that casual employees working in small businesses have a right to apply for conversion?

[Jeremy O’Sullivan]

Indeed. We’re also preparing if you like, complimentary web content to make sure that basically you know, we’re providing a one-stop shop for everything you need to know about this new statement. We’re afraid to ask if I can be of burden, but you know that’s exactly… we’re making sure and striving to make sure that it’s readily accessible and it’s ready to go out as soon as, you know, the legislation receives Royal Assent.

[Malcolm Roberts]

After what I’ve learned in the Hunter in the last two years, what more can the Fair Work Ombudsman do to support casual coal employee… casual employees, especially in regard to both understanding the impact of the recent change and on their right to casual conversion? How much is being invested to ensure that there is a helpline and or accessible information available in regard to casual rights?

[Jeremy O’Sullivan]

It’s an excellent question. I was gonna say that this new legislation provides both an opportunity and a challenge for us to deliver on that. So, the proof will be in the pudding.

[Malcolm Roberts]

And there will be arguments. You anticipate there will be arguments with people in larger businesses denied conversion and then the employee wanting to come back later and saying that the denial was not for sound reasons?

And that will be the jurisdiction of the Fair Work Commission,

[Jeremy O’Sullivan]

Right.

[Malcolm Roberts]

Yeah. But you’ll be in touch with them?

[Ms Parker]

I might just clarify to that a little bit. So, the initial conciliation will be the Fair Work Commission, but any disputes we know would go for the small claims court of the Federal Court.

[Malcolm Roberts]

Thank you.

[Jeremy O’Sullivan]

You’re quite correct mam, thanks.

[Malcolm Roberts]

Will Fair Work Ombudsman inspectors be able to help small businesses with things such as, coaching and support? Because it was small business who did most of the heavy lifting during COVID-19 restrictions imposed by governments around the country. And we want to ensure that they’re not burdened with more red tape and unnecessary administrative costs.

[Ms Parker]

The answers is

Yes. Senator, we’ve put a lot of our resources into supporting small business and we’ll continue to do so. We’re certainly developing material for this but we also have a dedicated small business helpline, and we’ve had 34,000 calls to that this year alone as in the financial year. And we have a small business showcase with a whole range of resources. The small business webpage was visited 50,000 times this year, we’ve got best practise guides and we have… So, we do put a lot of effort into small businesses and we’ll continue to do that. It’s important they understand what their, you know, obligations and rights are.

[Malcolm Roberts]

Well, I think it’s important just to mention chair, just in finishing up, that we’ve had a lot of contact with small business and small business organisations who are relieved that the bill went through last week, but now they need to make sure it’s implemented properly. So.

Thank you.

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One Nation Senators preparing amendments to rectify flaws in the IR Bill

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The government is on notice that One Nation is expecting due consideration of its amendments to the Industrial Relations Bill next week in Parliament.

Senator Malcolm Roberts said, “I have doubts about the government’s commitment to comprehensive debate on the Industrial Relations legislation with the committee report due Friday and a vote expected next week.

“This is critical legislation and Senator Hanson and I will not be rushed into a vote before we have had time to consider the report’s recommendations.”

One Nation is proposing a range of amendments including casuals, greenfields, protections for workers in enterprise agreements, awards and compliance.

Senator Roberts stated, “I will not support the Bill in its current form and the government needs to be prepared to embrace One Nation’s amendments to rectify and remove the legislation’s flaws.

“Good industrial relations is about restoring the primary workplace relationship between the employee and employer, and stop the money flowing to the IR club that profits from complexities.

“If the Industrial Relations legislation isn’t doing that, and this current Bill doesn’t, then it isn’t good IR and I am committed to amending the Bill for the betterment of employers and employees.”

One Nation will be seeking a review of this legislation in twelve months to address any unintended consequences and a commitment from the government to undertake comprehensive industrial relations reform within two years.

One Nation’s commitment is to protect honest workers, protect small business and restore Australia’s productive capacity.

“I have written to more than 80 stakeholders including union bosses, peak union groups, employer and industry groups and welfare agencies and listened to their feedback on the legislation. “It’s time to sort this out and Senator Hanson and I are ready to work with the government and all parties,” added Senator Roberts.

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One Nation doing more for workers than Labor

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Workers should be concerned that Labor and some union bosses have abandoned them. Casual workers are being abused and the needs of small business—Australia’s largest employer of workers—have been all but ignored by everyone except One Nation.

Transcript

In serving the people of Queensland and Australia, I note that Labor is fixated on the problems not the solution. The facts are that the government listened to One Nation’s legitimate concerns for employers and employees and it booted out the BOOT. One Nation achieved that. One Nation is doing more for Western Australian workers and employers than Labor. That is, in part, thanks to our Western Australian team, Robin Scott, an ex-Freo sparky who works hard for the people of the mining and pastoral region in WA, and Colin Tincknell, the One Nation WA state leader who proudly represents the South West region. Workers should be concerned that Labor and some union bosses have abandoned them. Casual workers are being abused and the needs of small business—Australia’s largest employer of workers—have been all but ignored by everyone except One Nation.

I have stood up to put a stop to these abuses for casual workers that the unions, the Labor Party and politicians like Joel Fitzgibbon knowingly ignored for years. Recently, the CFMEU mining division agreed with me that their union has ignored casuals for many years. I applaud that person in the CFMEU for having the courage to do that, and lawyers for the ETU and CFMEU confirmed that, in their opinion—and I agree with them—the IR system needs to be free from lawyers. For Labor to say that it’s going to be easier for employers to cut wages and conditions is not enough. Labor need to step up and show everyday Australians what Australia’s IR problems are and what they would do better. Labor, like Joel Fitzgibbon, are all talk and no action.

One Nation wants genuine industrial relations reform for the benefit of employees and employers, especially for small business and their employees, and the best way to do that is to listen and contribute to a better system. We have been listening widely and hearing the concerns from industry, union bosses, employer and employee groups, welfare groups, casual and injured workers, and small business. I care and I will fight to protect workers’ legal and moral entitlements, just as I am doing in Queensland and I am doing in the Hunter Valley, even though it is not in my state. One Nation stands for the workers that Labor and Joel Fitzgibbon continue to ignore.

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The detailed breakdown of the Industrial Relations Bill

https://youtu.be/lU4SFG_Uyl4

I was unable to give this speech in the Senate last night but it’s important you get these details. While the government has backed down on changing the BOOT test after One Nation pressure, there is still much to fix in the casual employment mess. There is a lot of chest beating about this bill but no real detail, only One Nation will give you this amount of detail and transparency about our analysis.

Transcript

In serving the people of Queensland & Australia I want to discuss our shared need for: 

  • Improving industrial relations to protect honest workers and employers, especially casual workers.
  • Our concerns for business, particularly small business.
  • The bigger picture and a vision for a secure future for Australia. Today the government took the first step in recognising One Nation’s legitimate concerns for employers and employees – it booted out the BOOT! 

We listened: We are listening to workers – casual and permanent – across Queensland and Australia. Listening to all stakeholders in employment including welfare organisations. Listening to UB’s and union bodies. Listening to small and medium sized businesses. Listening to employer and industry groups. Listening to the government.Listening reveals that across our country, people are hurting, feeling vulnerable. Afraid for their jobs, worried they won’t be able to pay the mortgage, afraid of the future. Everyday Australians are hurting from government COVID restrictions and lock-downs keeping people away from jobs, businesses and loved ones. 

The Problems with this Bill: There are many problems with this Bill that need to be resolved to make it safer for both employees and employers. There are many ‘hairs’ on this Bill that need to be trimmed to make it fit-for-purpose. Our concern is for the unintended consequences of this government’s so-called reforms that are really just tinkerings. We’re investing the time and effort to work with all parties to improve outcomes for employees and employers. 

The first problem is with the definition of “casual”, The proposed casual definition at Section 15A is lengthy and complex, it suggests that the employer’s intention expressed at the time of commencement of employment is the only important factor, determining employment status. It’s not.  Hunter Valley casual coal miners we’ve championed were clearly permanent and not casual as the dishonest labour hire company, Chandler MacLeod designated. 

This must be clarified in the Bill or Explanatory Memorandum. The definition also refers to “no firm advance commitment” yet many casuals have a firm advance commitment. Because it suits both them and the business as in single parents working during school hours and in takeaway shop. The definition of casuals in S.15(A)(2) is a loose compromise because the term ”as required” is confusing and must be removed. Last week, Mr Bukarica, Legal Director for the CFMEU Mining Division and his team agreed that their union had ignored casuals for many years. The same can be said of this government. The CFMEU in the Hunter Valley and the government have contributed to the exploitation and confusion in the permanent casual rort. 

The second concern we have is with the proposed ‘right to conversion’ Many casuals have a regular pattern of hours, yet Sections 66A and B suggests that this means casuals are actually permanent. This section as it stands throws many burdens on small business and puts the casual loading at risk for workers who enjoy the benefit of a casual loading. 

The proscriptive nature of required record keeping and timeframes for offers of conversion, as in the proposed Section 66B, represent a burden for small business who cannot afford the time off the tools.The answer is to take this unnecessary burden away from small business and likewise to review the silly ‘windows of opportunity’ workers have to apply for conversion.

Even more record keeping. Yet sadly this change will do nothing to change how companies like BHP exploit and abuse casuals through labour hire arrangements. BHP and big business can randomise rosters and extend casual arrangements to suit themselves. Some already are and that disrupts workers needlessly. 

The third concern is the new Section 545A for offsetting claims This introduces a statutory rule for offsetting claims for unpaid entitlements from permanent casuals.  Calling this double dipping in many instances is a lie. Let’s be clear I do not support double dipping on entitlements. Yet employees have a right to entitlements under circumstances where they have been treated differently to a true casual. 

We will fight for retaining and protecting these workers’ entitlements just as we have done for 18 months in the Hunter Valley. The Full Court in the Rossato case clearly stated that the casual loading paid to a casual worker did not offset their entitlement to paid leave as guaranteed to all permanent workers under the Fair Work Act.

The government seems to think it has to change this because the decision could impact big business profits. Section 545A (1) (b) takes this even further and states that it protects employers where they pay a flat hourly rate even when it’s not clear whether a loading is being paid. What’s going on here? How is this fair or making things simple? 

In the Hunter Valley, casual mine workers were put on permanent rosters and in permanent roles beside the permanent workforce. It could not be more clear, yet the IR laws created ambiguity and injured workers are still waiting for their just entitlements nearly six years later. As it stands, this provision could deny workers their lawful entitlements where they were not given a casual loading or when the EA resulted from a flawed process. 

I commend the CFMEU Mining Division’s Legal Director Mr Bukarica for the courage and integrity he showed when in answer to my questions he acknowledged the Hunter Valley CFMEU’s role in colluding with employers to deprive casuals of basic employment entitlements and rights. 

We will work with the government to create a workable solution to ensure workers are treated fairly. This is crucial and not negotiable. Small Business: Small business needs clarity and simplicity. It deserves a fair go and cannot afford the days or weeks away from work to defend a case when the big end of town can dig into deep pockets to pay lawyers and consultants. 

While the overwhelming majority of claims against small business settle before arbitration, small business owners have suggested this is because they have learned to pay ‘go away’ money. Thousands of dollars. We have received representations suggesting that the increases in fines (Schedule 5, Parts 1, 4, and 5) and new criminal penalties (Schedule 5, Part 7) be suspended for 2 years for small businesses to soften the blow for an already damaged part of Australia’s economy. 

We believe this is worthy of support. Small business deserves and needs a tailor-made solution for them. Small business spans multiple awards and cannot afford enterprise agreements. They cannot submit to the inflexible rules that the IR Club creates for its benefit and for lawyers’ financial benefit. 

The IR Omnibus Bill so far: The Prime Minister describes the IR system as, quote: “not fit-for-purpose, especially given the scale of the jobs challenge that we now face as a nation.” Who can forget the Dyson Heydon’s (Royal Commission) diabolical findings on union bosses? The whole nation saw the need for changes to protect workers from lawbreaking union bosses. 

One Nation supported govt legislation to implement the Royal Commission’s findings. We supported the ABCC, ROC and the first Ensuring Integrity bill. Yet we could not support the govt’s ill-considered second Ensuring Integrity bill. Nor can we support this Bill as it stands.

I’ve spoken often about Hunter Valley coal miners being exploited, abused and discarded as a result of the collusion between BHP, Chandler Macleod, the labour-hire firm and the Hunter Valley CFMMEU. And while the government knew about the “casuals” problem for years it did nothing until Rosatto threatened big business profits.

One Nation is standing up to protect workers’ and employers’ rights. One Nation knows that only employers, entrepreneurs, small businesses and workers create jobs. Government COVID restrictions have done enormous damage. Yet the govt-induced recession is not an excuse to cut pay or job security.

Instead, for our country’s sake, let’s make a genuine attempt at IR Reform together. 

We’re ready to work with the government and stakeholders to improve outcomes for employers and for employees. For businesses, especially small businesses and for honest workers.

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Industrial Relations Reform Speech

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Last week in Canberra I was unable to give this speech in the Senate so I recorded so you could hear. The government is proposing changes to the the Industrial Relations system and I wanted to put my views on the record and say to the government that the IR system is broken and needs fixing. And simplifying.

Transcript

I serve the people of Queensland & Australia and want to discuss our shared need for:

  • Improving industrial relations to protect honest workers and employers
  • the bigger picture and a vision for a secure future.

And I will shine a light on the Industrial Relations Club, known as the IR Club. The root cause of most IR conflict.

We have listened to workers – casual and permanent – across Queensland and Australia. From Thursday Island to the Hunter to Tasmania, from Brisbane to Perth. We have listened to union bosses and union bodies. We have listened to small and medium sized businesses. We have listened to employer and industry groups.

We have listened to the government and to the opposition. I’ve worked underground at the coalface in five regions across our country, managed mines and negotiated and introduced IR changes improving safety, productivity and security. As a mining executive I introduced the Australian coal industry’s first radically new enterprise award, one proudly based on matching employees needs and employers’ needs.

Our people set records that stood for decades with extremely high worker retention and Australia’s best safety performance for large underground coal mines. Listening reveals that across our country, people are hurting, feeling vulnerable. Afraid for their jobs, afraid of the future.

Add to that Australians are hurting from the economic fallout from COVID with restrictions and lock-downs keeping us away from our jobs, businesses and loved ones. People feel confused, often despairing, even hopeless. Many feel powerless to improve their situation or their business, frustrated that this government didn’t listen and just listens to the IR Club.

And people like HV miner Simon Turner crippled, exploited and discarded due to abuses proving the complete failure of current Industrial Relations laws. People are angry. The “Industrial Relations Club, the IR Club” is alive and well. It keeps its members fat, well paid and secure – lawyers, courts, employer peak bodies like the BCA, major UB’s.

Driven to perpetuate conflict so they have something to “fix,” a reason for staying in existence. Using complexity to conjure issues that need lawyers and UB’s to sort. The primary workplace relationship between employee and employer has been shoved aside. The IR system is broken. And that’s destroying Australian industry and exporting jobs to China.

The IR Club perpetuates artificial restrictions that needlessly destroy productivity and job security and suppress wages. Restrictions hurting workers and employers. The Building & Construction General On-Site Award is almost 150 pages long with 80 separate allowances on top of the prescribed wage schedule.

Australia’s cabotage is another IR Club casualty – and guts national security, sovereignty and tax revenue. The IR Club’s other victims are small and medium sized business. Our economy’s engine room. The IR Club insists on a one size fits all from large multinationals with huge teams of lawyers through to small businesses. Queensland’s 445,000 small businesses are now under even greater pressure as a result of the govt’s COVID response.

And, as a result of the IR Club, small businesses are left with complex, unworkable IR rules that are not fit for purpose. The IR Club is one reason why small businesses and honest big businesses are angry. We need honest, competent leadership making decisions based on solid data and facts with strength of character and a willingness to serve our country’s people, Australians. A Prime Minister who tries to do good, not just look good.

One Nation protects workers’ rights and knows that only employers, entrepreneurs, small businesses and workers create jobs. The govt’s COVID restrictions have done enormous damage. Yet the govt-induced collapse is not an excuse to cut pay or job security. Instead, let’s reform IR together properly.

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