Thousands of casual miners working in Central Queensland and the Hunter Valley are each owed, on average, around $33,000 per year in back pay, making them victims of Australia’s largest wage theft.
During my discussion with Ms. Booth and Mr. Scully, I inquired about the calculator that people can use to determine if they are being paid correctly under an Agreement or Award. It is crucial for workers to be paid at least the award rate of pay.
Ms. Booth described the calculator as an interactive template designed to cover all the awards.
An analysis of five significant labour hire coal mining enterprise agreements operating in Queensland and the Hunter Valley, all involving the CFMEU, revealed that all five agreements underpaid the award – see below. I also asked Ms. Booth to provide information on how many requests for assistance had been made relating to underpayments by the Chandler Macleod Group regarding the black coal industry.
It’s worth noting that in the Black Coal Mining Industry Award, there are no rates of pay specified for casuals, raising questions about how so-called “casuals” can use the FWO pay calculator.
The Five Agreements that Underpaid the Award
Per Person – Per Year – On Average
The Core Staff Enterprise Agreement 2018
$22,600
The FES Enterprise Agreement 2018
$27,000
The Workpac Enterprise Agreement 2019
$33,500
The Chandler Macleod Agreement 2020
$39,340
The TESA Group agreement 2022
$40,000
Transcript
Senator ROBERTS: Thank you for being here again, Ms Booth and Mr Scully.
Ms Booth: A great pleasure, Senator Roberts.
Senator ROBERTS: I refer to the Fair Work Ombudsman website and the black coal mining industry award that asks ‘Pay and entitlements less than the award?’ The Fair Work Ombudsman’s answer is, and I quote,
Employees must be paid at least award pay rates and entitlements.
There’s another instruction or invitation:
If your pay rates are less than the award, go to Help resolving workplace issues to follow our step by step guide on how you can fix it.
Does the Fair Work Ombudsman have a standard process or template it uses to assess whether an employee is being paid less than the award?
Ms Booth: The Fair Work Ombudsman has a pay calculator that allows anyone—an employee or an employer—to provide information as requested. It calculates the correct award rate. That is the case for all sectors.
Senator ROBERTS: So it doesn’t have a template, but an individual can step his or her way through it?
Ms Booth: I think the pay calculator could be described as a template. But it’s interactive. It’s a series of smart forms that you complete and then you get a response at the end which tells you what the award rate is. For further information on the pay calculator, I could turn to my supporters here. Mr Scully, would you like to talk more about the pay calculator for Senator Roberts?
Mr Scully: We call it PACT, which is pay and conditions tool. It is an online calculator that has hundreds and thousands of pay combinations and calculations that can be provided and is tailored to the particular award and classification and the like that the user keys in. It is a very popular tool. I think last financial year, something like 6.4 million people used it. There were something like 7.1 million pay calculations provided, I think, for the year, so it’s widely used by the community.
Senator ROBERTS: So there’s a template that an individual can attempt to check?
Mr Scully: Correct.
Senator ROBERTS: Is that tailored to cover pay rates subject to the coverage of the black coal mining industry award and the rosters that are used in Central Queensland and Hunter Valley?
Mr Scully: It covers all awards, Senator.
Senator ROBERTS: I know it is a very complex situation involving the 12-hour rosters in the Hunter Valley and Central Queensland.
Mr Scully: I would need to check that. I don’t know that it would go to the rosters. It is more awards and classifications. It goes to weekday rates and weekends and shift penalties and the like.
Senator ROBERTS: It’s a very complex roster. People have difficulty. Would the Fair Work Ombudsman agree to undertake an assessment with regard to the application of coal enterprise agreements and provide the outcomes to me?
Ms Booth: The Fair Work Ombudsman certainly will respond to any employee who has a question. We will provide information.
Senator ROBERTS: Is that current employees or can they be past employees?
Ms Booth: I will ask Mr Scully to answer that question on the basis that the info line is available to anyone. We don’t ask people to verify their employment status. I’m going to say that anyone can ring the info line and ask a question. Would that be right, Mr Scully? You would not have to be an employee to ring the info line and ask a question? We don’t seek to verify people’s employment status?
Mr Scully: That is correct.
Senator ROBERTS: I wasn’t thinking about calling up myself. I was thinking about past people who have left the industry but have been underpaid dramatically.
Ms Booth: So when a call comes, information is given. If that information doesn’t satisfy the caller and the caller still has a dispute that they regard as unresolved, we call it a request for assistance. We identify that and we move it through to an assessment team. That assessment team will speak directly with the employer and the employee and attempt to resolve the matter. I think you also know that it will go forward beyond that through inspector support to our investigator and inspectors to conduct investigations should it not be resolved by the assessment team. That is the pathway.
Senator ROBERTS: Thank you. By the way, a team of workplace lawyers, consultants and coalminers reviewed and analysed five significant labour hire coal mining enterprise agreements and the work roster that are operating in Queensland and the Hunter Valley. The CFMEU and the Mining and Energy Union were involved in, or were a party to or signed off on, all five agreements. The Fair Work Commission approved all five agreements. The enterprise agreements all underpay the award. The core staff agreement, for example, 2018 enterprise agreement yearly underpayment is estimated at $22,600. The FES agreement 2018 yearly underpayment is estimated at $27,500. The WorkPac agreement 2019 yearly underpayment is estimated at $33,500. The Chandler Macleod agreement 2020 yearly underpayment of casuals is estimated at $39,341. The TESA Group agreement 2022 yearly underpayment was estimated at over $40,000. But let’s come back. Between 2012 and the present day, could you please provide the number of requests for assistance made regarding underpayments by the Chandler Macleod group relating specifically to the black coal mining industry award and associated enterprise agreements?
Ms Booth: I think we’d have to take a question like that on notice. We collect information at the info line on a range of demographics. I wouldn’t be sure whether we could go to that degree of disaggregation. I think it is important to reinforce that the Fair Work Ombudsman enforces the law as it exists. As you know, a fair work instrument includes an enterprise agreement that has been approved by the Fair Work Commission. We don’t play a role in interrogating the approvability or otherwise of such an instrument. Once it is in existence, we must take it on its face value.
Senator ROBERTS: Thank you. You can take it on notice. Again, in relation to Chandler Macleod and the black coal mining industry award, how many requests for assistance were closed with the following general determinations—under the award, you can be casual; the 2007 workplace agreement covered your employment; or the insertion of section 15A into the Fair Work Act determines you are a casual? You can take that on notice, too, please.
Ms Booth: It would certainly be a degree of detail that I do not have at my fingertips. Is there anything, Mr Scully, you can say about that?
Mr Scully: I can only advise that from July 2019 to 31 December 2023, we resolved 30 disputes that relate to the coal mining industry. I haven’t got any further details about that. There are 30 over the last 4½ years.
Senator ROBERTS: Thank you, Mr Scully, that’s in coal. This is specifically Chandler Macleod and the black coal mining industry award. You will have to take this on notice too. How many proceeded to the investigation stage? Have any of them not been formally closed? If so, which ones? Thank you, Mr Scully. Thank you, Ms Booth. Thank you, Chair.
https://img.youtube.com/vi/3-XqCQp-264/maxresdefault.jpg7201280Senator Malcolm Robertshttps://www.malcolmrobertsqld.com.au/wp-content/uploads/2020/04/One-Nation-Logo1-300x150.pngSenator Malcolm Roberts2024-03-06 16:22:452024-03-14 17:14:59Casual Wage Theft and the Fair Work Ombudsman
Thousands of “casual” miners in Central Queensland and the Hunter Valley are each owed an average of $33,000 per year in back pay for every year of service for wage theft.
When inquiring with the Fair Work Commission about applying the Better Off Overall Test (BOOT), I asked if they would expect the pay under an Enterprise Agreement (EA) to at least match that under the relevant Award. Mr. Furlong confirmed that the EA would indeed be compared with the Award. I highlighted that there are workers under EAs who are earning significantly less than the Award, with these EAs being sanctioned by the Fair Work Commission and devised in collaboration between employers and the CFMEU.
I reiterated to Senator Watt that I could not support legislation that goes against the interests of workers and conceals the wrongdoing of unscrupulous unions. Minister Burke is shirking his responsibilities by refusing to deliver justice for thousands of workers ensnared in the casual rort stemming from enterprise agreements crafted in collusion with the CFMEU and labor hire firms, resulting in the largest wage theft in Australian history.
Transcript
Senator ROBERTS: Thank you all for being here. Good to see you again, Mr Furlong. When the Fair Work Commission assesses the application of the better off overall test, the BOOT, to a proposed enterprise agreement, would it be a normal expectation that the pay rate under the enterprise agreement should be clearly equal to or above that of the relevant award?
Mr Furlong: As you are aware, and as we have discussed in previous estimates, the agreement making process involves a statutory decision-holder, a member of the commission, looking at the facts of the matter and then applying a legal test, the better off overall test. There are some other elements that they are required to satisfy. On the basis of that, they make a determination about whether or not the agreement is to be approved or not.
Senator ROBERTS: Would it be a normal expectation that the pay rate under the enterprise agreement should be clearly equal to or above? That is a normal expectation?
Mr Furlong: Yes. The better off overall test—
Senator ROBERTS: Thank you. Are there circumstances in which, when considering the better off overall test, the BOOT, for an enterprise agreement, the Fair Work Commission would not do a comparison against the relevant award?
Mr Furlong: The answer to that question is that there would be an award that they will refer to in terms of the application of the better off overall test. Through that process, they will determine whether or not that agreement as made is better off overall than the underpinning agreement.
Senator ROBERTS: So they would do a comparison against the award?
Mr Furlong: Yes.
Senator ROBERTS: Thank you. If the enterprise agreement pay rate were not equal to or above the relevant award, and instead paid substantially less than the award, what would be the criteria used to justify that the enterprise agreement still passed the better off overall test, the BOOT?
Mr Furlong: It’s not a line-by-line comparison.
Senator ROBERTS: No. What would be the criteria? Broad criteria? Line by line? Whatever you want?
Mr Furlong: It is the better off overall test. The Fair Work Act prescribes what the member must take into consideration in determining whether or not that agreement meets the requirements that have been approved.
Senator ROBERTS: Are pay rates prescribed in there?
Mr Furlong: They will be. The decisions of the members—the independent tribunal members—will outline the reasons for the approval of those agreements, including whether or not they satisfy the better off overall test.
Senator ROBERTS: That is a wonderful point. Thank you so much. Even if the award excluded certain classes of employees from its provisions, would that exclusion create the legal circumstances to pay such excluded classes of employee less under an enterprise agreement than what they would or could earn under the award if the class of employees were not award excluded? Just to be clear, I’m not posing a theoretical question here. I refer to the black coal mining industry award exclusion of casuals as an example. Casuals are not specifically referred to in the black coal mining industry award.
Mr Furlong: I understand that. As we have discussed in previous estimates, the fact that there are no casual coalminers under the black coal mining award doesn’t preclude an enterprise agreement being made.
Senator ROBERTS: I understand that. I am talking about the pay. If an award excluded certain classes of employees in the coal industry—casuals—from its provisions, would that exclusion create the legal circumstances to pay such excluded classes of employee less under an enterprise agreement than what they would or could earn under the award if the class of employees were included in the award?
Mr Furlong: Senator, I have tried as hard as I can to be helpful in terms of the second part—
Senator ROBERTS: You are being helpful.
Mr Furlong: that we have provided. My role as the general manager is to provide administrative support to the president on the efficient running of the tribunal, in essence. The matters that you are going to now traverse instances or occurrences that may end up before tribunal members for their determination. I can’t answer that question.
Senator ROBERTS: Okay. That’s fine. Thank you. Minister, what would be the attitude of the government where workers working under enterprise agreements were paid less than the award even though the workers were doing exactly the same job they would under the award?
Senator Watt: Well, I would want to know more about the circumstances there. In general, the idea behind enterprise bargaining is for people to obtain pay and conditions above the award level.
Senator ROBERTS: Why is Minister Burke shirking his responsibilities and refusing to provide justice for thousands of workers caught in the permanent casual rort that is the result of enterprise agreements agreed between the CFMEU, now known as the Mining and Energy Union, with some labour hire firms, all with the Fair Work Commission’s approval? When will Minister Burke address this, the largest wage theft in Australian history?
Senator Watt: Well, as we’ve discussed many times, Senator Roberts, Minister Burke is not avoiding that. In fact, Minister Burke has led the government’s efforts to address and fix the permanent casual rort, including through the legislation that we passed only last week. I actually don’t remember how you voted in that legislation.
Senator ROBERTS: I voted against it because it would not address the issue that I am talking about right here. It buries the issue and buries the culpability of the unions.
Senator Watt: I thought you probably voted against that legislation last week, because One Nation has pretty consistently voted against the legislation that has been designed for workers.
Senator ROBERTS: We vote against it, as I explained, because it doesn’t address the issue. It buries the issue.
Senator Watt: Just as you voted against the closing loopholes bill last year, which is all about trying to put labour hire workers on an even footing with other workers.
Senator ROBERTS: Not true, Minister.
Senator Watt: Well, One Nation has consistently voted against these things.
Senator ROBERTS: You are consistently avoiding the issue of thousands of casual coalminers in the Hunter Valley and Central Queensland, our own state. I want that addressed.
Senator Watt: I’m not. We’re not. We’ve gone over this ad nauseam.
Senator ROBERTS: To make a point here concerning the validity of an enterprise agreement that removes the minimum statutory protections of any award, I quote the following paragraph from the full bench Federal Court decision in One Key Workforce Pty Limited v Construction, Forestry, Mining and Energy Union, decided in 2018. I go to paragraph 227. This is from the court decision:
It is uncontentious that, where a statute requires an administrative decision-maker to reach a state of satisfaction about a matter, the opinion as to the state of satisfaction must be reached by a rational, reasonable and logical process.
I will go to paragraph 204. I quote:
It is an error of law to fail to have regard to relevant material in a way that affects the exercise of power. An administrative decision-maker who makes such an error exceeds his or her authority and acts without jurisdiction.
I’m going to read—
CHAIR: If we keep to the time line, I am giving you a heads-up.
Senator ROBERTS: I’m nearly done. I have two questions and I will read some material. We had a team of workplace lawyers—I emphasise the plural—consultants and coalminers review and analyse five significant labour hire coal mining enterprise agreements and their work roster, which is complicated. The CFMEU, now the Mining and Energy Union, was involved in, was a party to or signed off on all five agreements. The Fair Work Commission approved all five agreements. The enterprise agreements all underpay the award dramatically. Specifically, in the core staff enterprise agreement 2018, the yearly underpayment for casuals working under that award is estimated at $22,623. It is wage theft. The FES agreement in 2018 has yearly underpayment estimated at $27,563 of wage theft for casual workers. The WorkPac agreement in 2019 showed yearly underpayment for casuals estimated at $33,555. Wage theft. The Chandler Macleod agreement 2020 has yearly underpayment estimated at $39,341. Wage theft. The Tesla group agreement 2022 yearly underpayment is estimated at $40,645. Wage theft. The Fair Work Commission has ruled that at least five black coal mining industry enterprise agreements exceeded their authority. Minister, what avenues will Minister Burke and your government take to restore basic entitlements lost under agreements that the CFMEU, the Mining and Energy Union, signed with various employers and that the Fair Work Commission approved?
Senator Watt: Well, Senator Roberts, I have personally sat through probably at least half a dozen estimates committee hearings where you have raised these issues repeatedly. Various officials have answered these questions repeatedly. The matters have been investigated, as I understand it, and dealt with. I understand that you are not satisfied with those answers, but I can’t add to what we’ve said about these things before.
Senator ROBERTS: Does it bother you that I have explained that the Fair Work Ombudsman has used a fraudulent document that has been deemed fraudulent by the Australian Taxation Office as evidenced against five others? It is solid evidence, including a court hearing.
Senator Watt: If that were true, of course I would be bothered by it.
Senator ROBERTS: You would be. Okay.
Senator Watt: But I’m not sure that is true.
Senator ROBERTS: Okay. This is my last question. Why has the process that the Fair Work Commission has adopted since 2010 in approving coal industry enterprise agreements that remove the minimum statutory protections of the black coal mining industry award clearly devoid of any form of rationality, reasonableness or logic?
Senator Watt: What was the beginning of that question?
Senator ROBERTS: Why is the process that the Fair Work Commission has adopted since 2010 in approving coal industry enterprise agreements that remove the minimum statutory protections of the black coal mining industry award—its entitlements, pay rates, the wage theft that I’ve just illustrated—clearly devoid of any form of rationality, reasonableness or logic, as the Federal Court requires?
Senator Watt: That is obviously your opinion, Senator Roberts. I know that it is a strongly held opinion. I don’t think that opinion is shared more broadly.
I’ve been raising the issue of the exploitation of miners for years. Miners and small businesses need to be heard because they are the losers in this ongoing rort. We need an extensive inquiry into it now.
The Fair Work Act is designed for the “industrial relations club,” not for workers and not for small businesses.
I’ve written twice about this issue to the previous member for the Hunter, Joel Fitzgibbon. I’ve also written and hand delivered a letter to Dan Repacholi’s office. I asked them to get involved. Both have failed to respond, yet they stand up and talk in this chamber about closing the loophole.
There is no loophole! There is only people not doing their job and letting down miners and small businesses.
When will these people find it in themselves to care, or at least do something about the fact that everyday Australians are being ripped off and the authorities are enabling it?
Transcript
Thank you, President, Senator Birmingham. For four years, I have been raising the issue of the exploitation of the permanent-casual rort in central Queensland miners and Hunter Valley miners—four years!
I have written twice to the previous member for Hunter, Joel Fitzgibbon. I have written once and hand delivered to Daniel Repacholi’s office a letter asking them to get involved. They both have not replied. They never replied. They stood up and spoke in this chamber about closing the loophole. There is no loophole. We know what the cause of this is. There is no loophole; it is people not doing their jobs.
Four years and Labor has not done a thing. They put the crow bar through the spokes to stop me. This is an insult to miners. We need an inquiry that is going to have hearings in Central Queensland and in the Hunter because these miners need to be heard.
We’ll show you where the loophole is. There’s a huge loophole but it’s not the loophole the Labor Party is talking about. This bill has an Explanatory Memorandum 520-something pages long because it’s a cover-up bill. The bill itself is up to 240 pages.
I’ve been talking in this chamber on many occasions about how the Fair Work Act is already complex, intricate and designed for the IR club, not for workers—and not for small business. This will make it far worse. We need to have a complete and thorough inquiry of it, and extensive scrutiny.
I will not be supporting the government’s amendment of the coalition’s amendment.
Miners need to be heard and small business, in particular, need to be heard because they’re the two losers from the Fair Work Act, due to its complexity and its prescriptiveness.
So I will not be supporting the Labor government’s amendment of the coalition amendment. I will support the coalition amendment.
https://img.youtube.com/vi/Bsl5tF7GqWY/maxresdefault.jpg7201280Sheenagh Langdonhttps://www.malcolmrobertsqld.com.au/wp-content/uploads/2020/04/One-Nation-Logo1-300x150.pngSheenagh Langdon2023-09-25 14:19:082023-09-25 14:56:23Miners and Businesses from QLD and the Hunter Valley Let Down by the Fair Work Act
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.
For many years I have been pointing out the exploitation of casual workers who are paid less than workers doing the same job next to them. Despite Labor’s promises, they have failed to do anything to fix this problem.
My Equal Pay for Equal Work Bill prevents the exploitation of workers through the use of casual labour hire contracts in 7 industries where the award mandates full time employment, including the Black Coal Industry.
My bill targets large labour hire companies who are using enterprise agreements to allow mine owners to move full time employees over to casual employment, on rates of pay that are up to 40% less than the directly-employed mine employee working next to them.
Half of the workers in the Black Coal industry are now employed on these contracts.
The ALP have been promising to fix this problem since 2018 and have done nothing. This may be because the CMFEU has signed off on these enterprise agreements in return for union dues, superannuation contributions and a fee from the Mining Companies for each contract adopted.
Nationals Senator Perin Davey spoke against my bill today because in her words, the wording of the bill may allow the Minister to extend the provisions to agriculture.
The Nationals are giving half the picture. Any extension requires the consent of the Parliament by way of a Disallowable Instrument. If the Minister has the numbers for an instrument to pass, this would also mean the Minister has the numbers to amend the Fair Work Act 2009 on their own accord.
The Fair Work Amendment (Equal Pay for Equal Pay) Bill 2022 will not impact on rural or small businesses.
In opposing my bill the Nationals are using a dishonest argument to align themselves with labour hire companies against the interests of coal miners and coal mining communities.
With State elections coming up in NSW and Queensland, it is clear a vote for the Nationals, Liberals or the ALP is a vote for corporate interests over coal mining communities.
One Nation is proud to stand for coal miners, and with the workers affected by labour hire exploitation including airline air and ground crew.
Labor has also indicated they will not support the bill. So much for the party of the workers.
Transcript
As a servant to the people of Queensland and Australia, my Fair Work Amendment (Equal Pay for Equal Work) Bill 2022 was drafted in response to exploitation of casual coalminers in central Queensland and the Hunter Valley. It’s since been widened. My bill was referred to the Education and Employment Legislation Committee for inquiry, and I thank the committee for organising a public hearing so miners could testify about their exploitation personally. The committee found there was a need for my bell yet then recommended waiting for the government’s version. Labor announced its hollow ‘fair work for fair pay’ idea back in 2018, four years ago. Labor and the unions campaigned on their bill in the 2019 state election in New South Wales and the 2019 federal election.
The problem is that Labor’s bill did not exist. I confirmed that and began drafting my bill in April 2021. Labor’s bill was not introduced into parliament until December 2021, a month after my bill was completed and three years after Labor first promised it. If the Labor Party were serious about fixing this issue, their bill would have appeared in 2018, not four years later after One Nation repeatedly called them out.
Labor’s bill was a dog’s breakfast, so the government has chosen to start over. Now, I accept the government saying it’s just started meeting with stakeholders, yet a briefing with the minister’s advisers last week revealed that consultation has only been with the companies and union bosses that perpetrated this scandal. The miners, air crew, ground crew and other workers ripped off for tens of millions in wages have not yet been consulted after six months, which of course means the Labor Party, the CFMMEU and the industry are trying to find a way to keep these labour-hire contracts going. I’ll explain why in a minute. And so I’m advancing my bill, preparing for a vote early next year. I thank Senator Babet for allowing me to use his bills time today.
Early in my career, I spent three years in the union as an underground coalface miner, including in the Hunter and Queensland. My father was an underground coalface miner, senior executive and later Queensland Chief Inspector of Coal Mines. He was awarded an Order of Australia for eliminating black lung in our state’s coal industry. Having completed an honours degree in engineering, I returned to manage coalmines, which involved daily interaction with the CFMEU in the Hunter and in Queensland. This issue is very personal to me because the CFMEU and its predecessor, the Miners Federation, were once strong unions that looked after and served their members. The reports I received in my Senate office in 2019 from Queensland and the Hunter have shocked me. After visiting these areas repeatedly and listening to miners, I was no longer shocked. I am outraged at the injustice.
The big picture is this. Labour hire companies were employing casuals in black coal industry production despite the award not allowing it. It was illegal. Exclusion of casuals extends beyond the black coal industry. It includes airline flight crew and other awards, which I will speak to in a moment. Back to the black coal award. Casuals are excluded for a good reason. Coal mining can be dangerous. It requires training and constant skilling to improve productivity and, most importantly, for safety—safety of an individual miner and safety of the whole mine and everyone in it.
Underground miners typically retire ahead of most other industries, when they can no longer do the physical work. That’s why proper unions like the old Miners’ Federation negotiated high rates of pay. The modern award is much lower than negotiated rates because it assumes miners can be reskilled and redeployed into other industries after they exit from mining, allowing for a full working life. That’s a fairytale. That simply ignores the reality of life in the coal industry. Labour hire contracts are used to cut miners’ wages. This represents a 40 per cent cut in wages against the pay a permanent miner earns in a mine’s direct employ, doing the same job, side by side. Two Australians working side by side doing the same job on the same shift, and one is getting 40 per cent less than the other. That is wrong.
This has been going on for ten years under the Hunter CFMEU, working with some mining companies and with protection from the local Labor members, Joel Fitzgibbon and now Dan Repacholi. Casual coal workers on labour hire contracts supposedly receive a loading for loss of holiday and sick pay; yet their pay packets are still 40 per cent less. What caused this large reduction in pay was not the absence of loading, because that was supposedly paid. It was the very low base rate that the CFMEU installed.
In 2021 One Nation supported the concept of not enabling workers paid for casual loading because that was paid. What we did was to ensure that workers retained their rights under industrial laws to take legal action for illegal pay rates. Yet the CFMEU then lied, shouting that One Nation stopped workers from getting what was theirs. No, we upheld miners’ rights to pay and entitlements while at the same time protecting small business from being forced to pay casual loading twice, as some union bosses dishonestly demanded. It was the union that signed up on these enterprise agreements that robbed workers of 40 per cent of their pay. The Hunter CFMEU pocketed union dues from labour hire casuals and money from labour hire employers for dodgy enterprise agreements with low pay rates. It was the Hunter CFMEU that jointly directed coal long-service leave funds that under-accrued and avoided paying employer contributions to labour hire casuals. I exposed that, and a government review later confirmed me as correct. It was originally a Hunter CFMEU owned labour hire company that collected fees from the mines for supplying labour under a labour hire contract. The CFMEU is clearly directing labour to protect their nice little earner, even at the expense of the workers that the Hunter CFMEU supposedly pretends to represent, while hypocritically and deceitfully speaking badly of casual employment and workers.
The committee report accurately describes the effects on communities of the reduction in local spending due to taking wages out of the community. I was lucky enough to find a lawyer who drew these agreements up on behalf of Hunter labour hire companies and who has since seen the error of his ways. His advice informed my bill. Many exploited workers contributed to my bill. I have the most knowledgeable legal minds on labour hire contracts in the coal industry contributing to my bill, and I have generations of personal experience in the coal industry. What confuses my critics is that I’m not lining the IR club pockets with overly complex wishy-washy nonsense that opens more loopholes than it closes, as Labor’s short-lived dog’s breakfast did.
My bill will fix this mess. My bill sets an additional provision for Fair Work Australia to require an enterprise agreement to pass before being approved. It allows an employee to appeal an existing enterprise agreement to Fair Work if an enterprise agreement breaches this new provision. The provision is simple: a worker on a labour hire contract must be paid the same rate of pay, including allowances, as a worker who is directly employed doing the same job on the same shift roster. That is clear. If the whole crew is labour hire, then the commissioner must make a judgement on what the rate of pay should have been based on historical information and a comparison with similar mines in similar conditions. That is clear. The cost of using labour hire contractors will now fall on the employer rather than the worker. The intention is to require the employer to project their labour requirements, employ, train and nurture their people—like employers used to.
One complication is that some workers are on day shift and others on rotating shift. My bill takes that into consideration. Clause 3(b) of the bill expressly provides that the roster the employee is working must be considered in the assessment of equal pay for equal work. The committee report correctly identifies when labour hire contracts subvert the black coal mining industry award 2010 and the aircraft cabin crew award 2020. I’ve circulated an amendment to this bill to include the airline operations ground staff award 2020 which makes provisions for casuals that foreign companies bypass to exploit workers through labour hire contracts. I know Senator Sheldon is leading a fight against that exploitation. My bill will give him the ammunition to drag the whole situation back to Fair Work. I urge Senator Sheldon and Labor to adopt it.
My bill’s simplicity will prevent lawyers feasting because it allows Fair Work commissioners discretion to make value judgements. I reckon they’re up to it. The remaining awards are excluded in the Fair Work Amendment (Equal Pay for Equal Work) Bill 2022 as a line in the sand. While labour hire agreements are not being abused in these industries, explicitly including those awards in this legislation was designed to ensure labour hire firms do not treat these awards as a new profit centre once the opportunity for exploitation is removed from coalmining and aircraft operations.
Witnesses who discussed their treatment under labour hire contracts were pleased to have the opportunity to publicly testify, and I thank the committee. These workers were not always afforded that opportunity. Stuart Bonds, from the Hunter, listed case after case after case where miners have been employed under labour hire agreements with a 40 per cent reduction in pay rate. More troubling were the stories of exploitation and victimisation these workers received, especially following a safety report or physical harm.
Simon Turner testified to the committee on his inhumane experiences as an injured worker. He’s one of many, sadly. Workers like Simon tried for years to get justice. The mine owner and the labour hire company completely ignored him—tossed him on the scrap heap. The Hunter CFMMEU betrayed workers. Local Labor MPs let them down. Only when workers came to One Nation was progress made.
Another worker on a labour hire contract saw a safety issue—water trucks laying down too much water, creating slippery conditions—and reported it. This worker was required to report that safety issue. Her contract was terminated the next week. There’s no job security in labour hire contract arrangements. Workers injured at work were refused medical treatment and not paid workers compensation or accident pay as legally required. Workers were afraid of reporting safety issues for fear of being sacked.
Workers were rostered two years in advance to work 52 weeks of the year straight—no holidays. If you’re working a full-time 12-hour shift and being given these shifts two years ahead then you’re not casual. You are a permanent worker. Despite being, in effect, permanent these workers are unable to get home loans, car loans and provide a future for themselves and their families because banks won’t lend to casual labour hire employees. When I say exploitation I mean exploitation!
All this happened with the Hunter CFMMEU doing deals enabling mining companies more interested in profits than basic human decency. Labour hire deals and contracts are used to lower wages across an entire industry. Qantas pulled this stunt on their ground crew. They fired thousands of workers and re-employed them through labour hire companies at the lowest rate of pay. What’s a worker to do? Refuse the deal and have no job or take the deal and try to get by on 40 per cent less? Qantas are using these tricks on flight crew and pilots as well. Senator Sheldon can speak to this, so I won’t. Correct loading on a plane is vital to flight safety and people on the ground.
In my meeting with Qantas, their executives defended their behaviour as being ‘necessary to maintain viability’. Qantas have run their staff into the ground, cut staff pay to the bone, moved staff from full-time secure jobs to casual junk jobs, worked staff on shifts with not enough time to recover, provided insufficient training and supervision—and now things are going wrong. What a surprise! And they belted loyal, long-serving employees with COVID injection mandates. One Nation’s Fair Work Amendment (Equal Pay for Equal Work) Bill 2022 remains the only legislation before parliament designed to correct this unfair and dishonest corporate behaviour. It should have been in the government’s Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, but it’s not. Yet it’s not too late. Here it is.
I’ll now discuss the specific topics in the committee report. Firstly, the bill does not act widely enough. My bill allows the minister to add more than the seven awards this bill currently covers by using a disallowable instrument where exploitation occurs. It allows the minister to remove that listing should an industry stop exploiting. This is surely best practice? Only act where there’s a problem, and only for as long as the problem exists. Adding 700-plus awards ‘just in case’ will needlessly add to the cost and complexity of our industrial relations system.
Secondly, definitions of key concepts. The definitions enabled every submitter to correctly understand my bill’s intent, yet some of them went on to say the definitions were incomplete after correctly identifying the meaning of the words used. The wording was chosen carefully because once a term is given a specific meaning, that meaning is considered the term’s full meaning. Cunning lawyers use detailed definitions to limit a term’s application. This allows for deficiencies in definitions to be exploited as loopholes. I will not play the industrial relations club’s game. It’s up to the Fair Work Commissioner to decide if a labour hire agreement falls under this bill’s provisions. Should the Fair Work Commission fail to honour this legislation’s intent, then and only then should we wander into the legal minefield of definitions that become exclusionary rather than inclusionary. It’s time to start using clear language expressing clear principles and rely on the Fair work Commissioner to exercise their wisdom and knowledge and to follow these principles in their judgements.
My bill’s intention and action: my bill provides a provision to existing provisions that enterprise agreements must pass to meet the Fair Work Commission’s approval. This test is in section 321 of the Fair Work Act 2009 to show this equal pay for equal work provision is separate and additional to the better off overall test—the BOOT test. Section 321 is exactly where this provision belongs.
In conclusion, the supposed downside that some vested interests attribute in broad terms comes from the same entities who turned industrial relations into a club for their own profit and power at the workers’ expense. These entities do very well from complexity. Workers pay the price in so many ways. This must stop. If the government is serious about equal pay for equal work, get on with it. I thank senators contributing to this debate and look forward to bringing the bill to a vote at the next opportunity.
Labor’s Industrial Relations reforms have been rushed through the Parliament. The entire crossbench had previously agreed to hold off on passing the changes until the 273 page bill filled with technical changes could be properly analysed and understood.
Unfortunately, Labor has secured support after horse trading with Senator David Pocock. Senator Pocock caving in means that the rushed legislation (which is still being significantly amended up to the final hour) will sail through Parliament before anyone can understand any of the unintended consequences.
This is not how we should run the country.
Transcript
As a servant to the people of Queensland and Australia and to the workers and small businesses of our nation, I want to firstly thank the minister’s staff and the departmental staff for their briefings. I want to thank the many companies, unions, employer entities and workers. We listened.
The Hawke-Keating years broke the previous harsh, adversarial, mutually assured destruction policy in industrial relations in this country. Then we went back with the Fair Work Act from Julia Gillard in 2009—complex, prescriptive. The creators of this act do not understand industrial relations. A senior practical Labor MP whom I regard very highly said that Gillard’s Fair Work Act was a ‘backward step’, damaging Australia. It’s failed. Many want it changed. I know that union bosses like David Noonan and Michael Ravbar, for whom I have some regard, and Alex Bukarica and the ETU’s Michael Wright say that we need to change, that we need to get back to basics. Employer and industry groups say the same. Parliamentarians in this chamber say the same. How hard is it for workers to know their entitlements with this? It’s impossible. How hard is it to run a small business these days? It’s very difficult. This thing justifies the industrial relations club’s existence. Workers now kowtow to the industrial relations club.
Let’s go back to basics. Unions were formed in the 19th century to protect workplace basics; to protect pay, safety, entitlements, job security, retirement; to ensure fairness; and to strengthen workers’ bargaining power. Then we got laws to protect state and federal workers. Unions were doing a vital job. Politically they were omitted from being held accountable the way other organisations and company directors were. After successful union campaigns, governments legislated worker protections in employment, safety, industry and health legislation. Unions were no longer needed for those basic protections because they were enshrined in legislation, yet they had immunity from many provisions under the law and were effectively monopolies, with no competition among unions within industries. As with all monopolies, this was the result of government legislation. As with all monopolies, they faced no accountability from competitors. As with all monopolies, some union bosses abused this privilege.
In recent years, in this cosy life with no competition and no accountability, we saw abuses in the HSU, the SDA, the AWU and the CFMMEU in which union bosses stole workers’ money for personal, financial and other benefits, including brothels. In the 1990s I was good friends with Jim Lambley, the then CFMEU vice-president. He shared with me his thoughts that the union, which was once strong and powerful and genuinely committed to miners, was sloppy and not providing a service to its members. Times had changed; it needed to lift its game because traditional services were already legislated. As a result of neglect of union members, union membership in the private sector outside the Public Service is just nine per cent and falling.
Not all large unions have a monopoly or bosses that want to exploit them. I single out and compliment the TWU. They’ve had turmoil, just like every entity, but they’ve sorted themselves out. They’re represented here by Senator Sheldon and Senator Sterle—excellent advocates for the trade union movement, excellent advocates for workers, excellent advocates for Australians. One of the reasons is that the TWU contains not only employees and truck drivers but small businesses. The TWU is the largest entity with the largest membership of small businesses in this country. They work together to provide a service.
I was going to discuss the sheer abuse and exploitation of people in the Hunter Valley at the hands of the CFMMEU, combined with BHP, combined with Chandler Macleod, which is part of Recruit Holdings from Japan, the largest labour hire company in the world. Instead, I will ask a few questions of anyone watching today.
Labor titles its bill the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill. Let me give you facts and ask you what you think. Firstly, the new bill omits any hint at the Fair Work Amendment (Equal Pay for Equal Work) Bill, my bill that has been pushed for months now and which aims to lift casual pay rates. Why? The Senate committee of inquiry agreed on the need for my bill. They said, ‘Let’s wait for Labor’s version,’ but it’s not in the bill that we see before us. My bill is ready to go, with certain awards that found no issues with it. How long do abused miners and airline staff need to wait? Let’s get the experience before widening it. Why not include my bill in this? We’ve researched it thoroughly. I asked last week and the minister’s staff said, ‘They’ve barely started consultation.’ Then they did so with the perpetrators of the heinous acts in the Hunter Valley and Central Queensland. They’re not interested in better pay. They’re not interested, and they’ve done nothing to include it.
Let’s look at job security. Well, look at COVID mismanagement; the phasing out of the coal industry and jobs under the Liberals, Nationals and Labor; the erosion of our rights and freedoms under COVID mismanagement; increasing energy prices; killing manufacturing and hurting agriculture; the lack of much-needed tax reform and much-needed economic reform; increasing debt; work health and safety systems being bypassed; Australia’s productive capacity being destroyed; the failure of our industrial relations systems and more; tax reform; high immigration flooding in and putting downward pressure on wages; and inflation. They’re not interested in job security at all.
Then let’s have a look at the summit. It was a sham. It was not a genuine, Paul Keating-style consultation. The government knew beforehand what they were going to do after the summit. The key items in this bill that they’ve now got in front of us in the chamber were not even raised in the summit topics. I wrote to Joel Fitzgibbon, the previous member for Hunter, on the abuses in the Hunter valley, and he refused to reply to me. It was the same with his replacement, Dan Repacholi, and the same with Minister Burke. They are not interested in job security, fairness or the law.
Now we’ve got a bill before us that is another 249 pages plus government amendments—150 amendments to their own bill in the lower house. That’s another 34 pages. They’re going to add more complexity, make it thicker, make it more difficult for people to understand. These 150 amendments confirm that the bill was hastily introduced and not thought through. If there are so many amendments needed and so many flaws can be identified in such a short time, how many will implementation in the real world expose, and who will pay for that? Workers will pay for that. Small business will pay for that. This is so flawed the government is making amendments to its own amendments!
This is a spit-and-hope bill. When the Australian Building and Construction Commission was introduced, there were months of consultation. When it was abolished, there was none. The same should apply to the whole bill. It needs debate. It needs to be deferred and considered properly. Who pays for this mess? The people: union members, small businesses, workers, communities and the nation.
Let’s have a look at the bill now. There are 27 parts, 13 substantive. Some are simply tidying, and that is good. Some are worthy improvements—minor but worthy—and that is good. Some big issues are not thought through. Some big issues have been thought through yet deceptively hidden because they don’t want the people to see them. Some issues were designed deliberately to confuse and to obfuscate. All is slapped behind the false labelling of enabling a pay rise and more secure jobs. This is what you get out of the south end of a north-facing bull. There is no mandate for stuff that’s been hidden—no mandate at all.
On 22 November 2022, Minister for Small Business Julie Collins failed to answer two core questions: how many small businesses will be drawn into wage bargaining and how much it will cost. They added another definition to the already 140 definitions of ‘small business’ across government departments. The government tells the people of Australia that the whole rationale behind this bill is to get wages moving, yet there’s no specific detail: how, when, who? There is nothing concrete, just broad, fluffy statements, typical of the Labor-Greens-teal coalition governing the Senate. Labor claims it will improve the bargaining position of small business and workers, so why do thousands of small businesses oppose it? Could it be due to this?
Why are union bosses given the power of veto to frustrate the bargaining process? Even if employees agree with the employer, they still can be vetoed by remote union bosses. Why are smaller employers locked into a process they do not support if they have a head count of more than 19 people, including those who choose to work only a few hours a week? Why isn’t the full-time equivalent used? As a result, large businesses can negotiate conditions smaller businesses cannot compete with. That aids large businesses to kill off smaller competitors, leading to fewer jobs, plus small businesses lack the resources to deal with the red tape.
The abolition of the Australian Building and Construction Commission illustrates the government’s aims and intent: rewarding union bosses with power. That’s what’s behind this bill. It means a return to the damaging days of industrial thuggery. Remember the BLF? The Dyson Heydon royal commission revealed so much thuggery in the CFMEU. There were court cases and criminal convictions. The ABCC worked. Labor abolished it. The coalition reintroduced it. Labor is now abolishing it. There were millions of dollars in fines. What will happen to them? There was violent behaviour, industrial blackmail, killing small businesses and restrictive work practices that cost taxpayers an additional 30 per cent on building costs. Who’s going to enforce the law now?
This bill will in the long run harm unions. It gives more power to union bosses over members and industry and generally in the community. Monopolies discourage responsibility and competitiveness of service and they reduce accountability. This bill entrenches the monopoly and makes it stronger.
Unions may receive a short-term boost, yet, long term, it will accelerate, sadly, the slide of declining union membership. Look in Queensland. Premier Palaszczuk aims to kill the Red Union. She is protecting the Queensland nursing union, who are big donors to Labor. She is trying to kill the Red Union, which is starting freely, because she wants to kill any competition to her union bosses that donate. This is not about higher pay and job security; it’s about giving union bosses power over industries, over companies and employers and over workers. Instead of returning to the pre-Hawke days, we need the reverse. We need to restore the primacy of the workplace, the employer/employee relationship, with employees free to bring in unions when they choose.
The big picture is that industrial relations needs comprehensive reform. We need to get away from the industrial relations adversarial approach that has plagued this country. It locks managements, executives, union bosses, consultants and lawyers into industrial relations games and not into improving businesses. Instead of having the brightest and best lawyers and accountants focused on how we can smash the opposition in this country, we need to focus on how we can smash the opposition in South Korea and Japan and China. They are our overseas competitors.
Industrial relations reform needs to be comprehensive, focus on the primacy of the employer/employee relationship and return to the days of Hawke-Keating, at least for a start. People need to focus on their business, not the corporation. Always around the world in workplaces people are focused on their workplace—that’s what people love. We need industrial relations reform that develops responsibility for the business. We need a short bill, instead of this monstrosity. We need about 20 pages of basic entitlements, and, instead of getting off the hook through lawyers with this monstrosity, we need clear provisions so that, if these basic provisions are violated, people go to jail. Workers are getting abused in this country. Small businesses are getting abused in this country. We need simple provisions and severe penalties.
Let’s consider the teals—David Pocock as a teal and the Labor-Greens-teal governing coalition. The governing coalition in this Senate is Labor-Greens-teal. Fifteen amendments he announced on Sunday. The government was going to do nine anyway! Four are corrections and another four are corrections to government oversights in the bill! The JobSeeker rate is irrelevant to the bill—horse trading! That leaves one amendment that Senator Pocock initiated. Union bosses will still be able to drag small business into multi-employer bargaining, and to get out of multi-employer bargaining those businesses will have to engage in expensive litigation. Welcome to the new Labor-Greens-teal coalition running this country, where the love of power is more important!
In conclusion, instead of the lies and pretence of this bill, we need honesty. Instead of boosting union bosses’ power, we need to make the employer/employee workplace relationship the focus to get Australia’s talent to the fore and to make us competitive again. Instead of adding more complexity and regulations, we need comprehensive industrial relations reform—simplicity, honesty, efficiency and real protection. This mess bypasses protections and leaves workers vulnerable and exposed. Above this building, we have one flag. We are one community, we are one nation and we work like hell to protect workers, protect small business and restore honesty in governance.
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.
https://img.youtube.com/vi/3XfTHqGBUEY/0.jpg360480Senator Malcolm Robertshttps://www.malcolmrobertsqld.com.au/wp-content/uploads/2020/04/One-Nation-Logo1-300x150.pngSenator Malcolm Roberts2021-06-03 09:31:192021-06-03 09:31:29Fair Work Commission – Award Modernisation & Small Business
