Posts

Underpaid Coal Miners: FWO’s Investigation

,

I congratulate the Fair Work Ombudsman (FWO) for at last taking the many complaints from underpaid coal miners seriously and treating them professionally. It’s only taken me five and a half years of persistent questioning to reach this point.

I was informed that preliminary results of the FWO’s investigation would be available around mid-2025. The six-year time limit that applies for enforcement under Section 544 of the Fair Work Act does not prevent investigations from extending beyond that period.

Determining the legality of Enterprise Agreements (EAs) is outside the scope of the FWO. If the Fair Work Commission (FWC) approved an EA, the FWO would consider it legal until a court rules otherwise.

The Senate passed my amendment to a recent Labor bill. That amendment requires the Minister for Employment and Workplace Relations to investigate this wage theft. Minister Watt agreed to provide me with updates and mentioned that the investigation might take up to 18 months to complete. We will persist in holding the Minister accountable in increasingly detailed ways as to progress in his investigation.

After five and a half years of holding government departments and agencies accountable, and doing our own research we continue to pursue Australia’s largest case of wage theft. More than one BILLION dollars of underpayments involving as many as 5,000 workers. Our research has led to miners recently submitting complaints to the Fair Work Ombudsman -. i.e. a miner has been underpaid $211,000 and some miners have had at least $41,000 stolen per year of employment.

Transcript

Senator ROBERTS: Thank you for being here. I want to congratulate and thank the Fair Work Ombudsman for responding to the Independent Workers Union of Australia request for underpayment assessment on behalf of IWUA casual miner members. I hear that the Fair Work Ombudsman is treating these requests with seriousness and professionalism and that you’ve set up a specific process for handling the claims. Given that the underpayment claims involve detailed investigation of documents relating to each miners’ annual income, their pay rates and so on, going back as far as 2013, I appreciate that the investigations may take some time. Does the Fair Work Ombudsman have any idea of the timelines involved? I’m not urging or wanting a fast outcome. Rather than a rushed job, I’d prefer a thorough high-quality investigation.

Ms Booth: Thank you for the question and the compliment. I’ll ask Mr Campbell to commence, but Mr Ronson has direct knowledge of that investigation, I believe.

Mr Campbell: I don’t know that we’ve got a timeframe at this point, but I’ll ask Mr Ronson to assist with an answer, given his immersion in the subject.

Mr Ronson: We’ve put together an overarching project plan in response to the requests to investigate the sector. In terms of preliminary findings—this is a guide, not so much necessarily for each request for assistance or each employee—we’re looking at preliminary findings by at least the middle of next year. The challenges we face, of course, as we go back to 2013, are those records, available witnesses and so forth.

Senator ROBERTS: Thank you; that’s good. When you said ‘next year’, I suddenly realised we’re nearly at the end of the year. I understand that the Fair Work Ombudsman’s investigation is subject to a six-year time limitation. Can you advise of the specific legislation, regulation or policy that creates that six-year time limitation?

Mr Ronson: That’s section 544 of the Fair Work Act. But there’s an important distinction to make, and this is one that we’ve put into our plan. That provision relates to enforceability. If I can just take you back—if someone puts in, as we’ve received, claims that go back to 2013, that does not prohibit us from investigating back to that period. However, if we were to find underpayment and request an employer or previous employer to compensate the employee for their underpayment, we would be restricted or limited by the impact of section 544. What that really means is: say we had to take someone to court. It would mean that at the time we file proceedings—I’m happy for chief counsel to help me here—we’d only be able to enforce an underpayment that goes back six years.

Senator ROBERTS: To 2018. Thank you; that’s pretty clear.

Mr Ronson: That doesn’t preclude us investigating historic underpayment.

Senator ROBERTS: That’s even more encouraging. Thank you so much. My next question is: is the Fair Work Ombudsman able to investigate back beyond—yes, you’ve said that. The One Nation report detailed coalminers’ wage theft and detailed the way casual coalminers’ underpayments have been justified by the people involved. The report identified what was called legal trickery that argued that, because the black coalmining industry award does not allow for casuals, a comparison to what would ordinarily be a casual rate under the award could be ignored in assessing the claimed underpayments of the national Independent Workers Union of Australia member coalminers. What is the approach of the Fair Work Ombudsman to this legal argument that claims to justify underpayments? What bearing does or would this argument have on the Fair Work Ombudsman’s investigations?

Mr Ronson: In terms of the requests for assistance that have come from workers who are being assisted by the Independent Workers Union of Australia, their argument is that the enterprise agreements are unlawful. There are various reasons they have put forward, probably in line with the report you just held. The question of whether those agreements are unlawful is outside our scope. The chief counsel, I think, on previous occasions gave evidence to this committee as to why we don’t go to second question. Nor can we guess the enterprise agreement approval process. What is in scope—what is in jurisdiction for us—is whether there was any coercion or any breach of general protections in the making of the agreement. As to the foundation or the status of the enterprise agreement, if it’s been approved by the Fair Work Commission, we take it as approved. There are a whole range of questions that flow from that, but that’s it in summary.

Senator ROBERTS: So, it’s not necessarily compliant with the law just because the Fair Work Commission approves it, but it has been approved.

Ms Volzke: Senator Roberts, I think we’ve traversed these issues before. It’s the Fair Work Commission that approves agreements, and it’s our job to apply the law to any particular case. As Mr Ronson said, that is exactly what we’re going to do with all of those requests for assistance that have been made. Certainly, there have been issues of legal complexity which still haven’t been authoritatively determined: what actually is the effect of the black coalmining award not providing for casual employment in operational roles. Certainly, there’s been some commentary around that, but it hasn’t been formally determined.

Senator ROBERTS: Thank you. In undertaking the investigations, will the Fair Work Ombudsman report to the Senate on the progress of the investigations, findings and follow-up, obviously within the bounds of required confidentiality in relation to each miner?

Mr Ronson: We’re very happy to, at these appearances, provide updates, if you like, without jeopardising the integrity of any particular investigations. So it’d be at a fairly high level, but we’re more than happy to provide updates.

Senator ROBERTS: Thank you. I have questions to Minister Watt. Minister, when will you start your investigation that the Senate ordered on 16 May by passing my successful second reading amendment to the government’s recent so-called closing-the-loopholes Fair Work Amendment Bill?

Senator Watt: I would have to go back and take a look at that, Senator Roberts. I must admit I—

Senator ROBERTS: It was at the time Minister Burke was in the chair.

Senator Watt: Okay, that’s probably why I’m not familiar with it. Let me take that on notice and come back to you.

Senator ROBERTS: I’m surprised that you’re not aware of it. No-one in the handover made you aware of it?

Senator Watt: I don’t remember anything like that in the terms you’ve described, but Ms Volzke might know.

Ms Volzke: Yes, certainly. Minister Watt wrote to us—I think it was in August, so a couple of months ago— in relation to tasking us to effectively look at investigations of underpayments in black coal mining.

Senator Watt: Yes, I do remember that now. Sorry, I forgot.

Senator ROBERTS: So you are interested in workers?

Senator Watt: I think my record shows I am pretty interested in workers, including coalmining workers, Senator Roberts. I sign a lot of letters, but I do remember that one now.

Senator ROBERTS: Okay, I can understand. What’s your planned format, in terms of reference and scope, for the investigation?

Senator Watt: That’s probably a question for the—

Mr Ronson: That’s what I’m working on, and that’s where we’re developing what we’re calling an overarching project plan. What we’ve got at the moment is around 20 workers who have already approached the Fair Work Ombudsman, and obviously each of those persons will be very helpful to our investigation, because we’ll be able to talk to them about the sector. I can just give you a couple of key features of the project plan. One is to map out and identify who are the key players, the key influences. Senator, you’re on the record, for example, as saying that there are five labour hire entities of significance that you claim warrant attention.

Senator ROBERTS: We think there are more, but we’ve only investigated five.

Mr Ronson: Yes. Labour hire entities will obviously be a sharp focus for this plan.

Senator ROBERTS: Good.

Mr Ronson: Just in the nature of the industry, there are tensions, which we’ve already talked about before, between entitlements that are owed under the award and those under the enterprise agreement, so that’s in scope. We’ll also be working and talking with other regulators—for example, the coal long service leave board—where there are entities of mutual interest. We might be able to collaborate with that agency to enhance our capability and capacity.

Senator ROBERTS: So it’s broad, and—

Mr Ronson: Yes. There’s an overarching plan that will take us around the next 18 months to deliver, but within that we’ve already set up, for example, a dedicated email address for anyone in the sector to approach us. We’re in communications with the Independent Workers Union. They’ve already started using the dedicated email address. We’re active and open for business now, but there’ll be other initiatives and steps we take to enhance awareness of this investigation.

Senator ROBERTS: I might come up with some more questions, but I’ll put them on notice. You’ve told us it will be about 18 months?

Mr Ronson: Yes.

Senator ROBERTS: Okay. Minister, I refer to the letter from the Independent Workers Union of Australia to the CFMEU administrator in relation to the Independent Workers Union of Australia’s application to the Fair Work Ombudsman for investigation—you and I were copied, as was Senator Cash—and the activities of the Fair Work Ombudsman in relation to those underpayments. The IWUA sent you a copy. Have you made yourself, or do you intend to make yourself, cognisant of the Fair Work Ombudsman’s reviews of the underpayment assessments.

Senator Watt: Certainly I will no doubt be informed of the result of the work that the Fair Work Ombudsman is doing.

Senator ROBERTS: Before the 18 months for the overarching inquiry.

Senator Watt: I’m sure the ombudsman will keep me informed of that, as they do on a range of matters.

Senator ROBERTS: Thank you. Have you made yourself, or do you intend to make yourself, cognisant of the One Nation report on this matter, specifically with a view to understanding the CFMEU’s role?

Senator Watt: I haven’t read the report, but you and I have talked about this many, many times at estimates, so I think I’ve got a bit of an understanding of the issues that you’ve raised.

Senator ROBERTS: You’ve always been sceptical, but I encourage you to read the report.

Senator Watt: I’m sure it’s top-quality work, coming from you, Senator Roberts.

Senator ROBERTS: Well, we commissioned it. I didn’t do it.

Senator Watt: Oh, okay.

Senator ROBERTS: I just informed some parts of it.

Senator Watt: I’m sure it would have been better if you’d written it yourself.

Senator ROBERTS:Have you investigated, or do you intend to investigate, the historical activities of the CFMEU where the CFMEU either negotiated, oversaw, were aware of, approved, endorsed or were a party to the agreements that are in discussion?

Senator Watt: My recollection is that those complaints that have been made have been investigated previously and, in some cases, are still being looked at. I’ve got full confidence in the authorities that are looking into those matters.

Senator ROBERTS: They haven’t been investigated yet.

Senator Watt: I think there has been some work looking at the veracity of those allegations. From what I’ve seen, there’s a different view compared to what has been put forward by that group of people. I respect the fact that you believe in and support the people who’ve made those complaints. I guess there’s a different point of view.

Senator ROBERTS: On notice, could I have copies of that advice, please.

Senator Watt: I’ll get you anything that we’ve got, yes.

Senator ROBERTS: Have you investigated or do you intend to investigate whether officers of the CFMEU or persons associated with the CFMEU engaged in any collusive activity such as conspiring with other people or entities to enable the underpayment of casual labour hire coalminers?

Senator Watt: Senator Roberts, we should make the point that when you’re talking about the CFMEU you’re talking about what was the mining and energy division of the CFMEU. It’s now a separate union.

Senator ROBERTS: It’s the Mining and Energy Union now.

Senator Watt: There’s been a lot of discussion about the CFMEU today, and we’re not talking about the construction division. Again, my understanding is that a number of those matters have been looked at already— or, at least, you’ve had them referred to authorities. I’d be relying on the work that’s already happened there.

Senator ROBERTS: Could you, on notice, give us copies of what you’re relying on.

Senator Watt: Sure. I thought, Senator Roberts, that you had actually referred some of these matters to authorities for investigation already. If I’m right in thinking that, I’ll come back to you on what’s happened. If I’m not right about that, then I’d encourage you to refer those, whether it be to the Fair Work Ombudsman or to other groups.

Senator ROBERTS: I think the correct avenue is now being followed by the miners.

Senator Watt: Exactly, so we’ll wait and see the outcome of that.

Senator ROBERTS: If you have anything on what the department has done with it, I’d like to see that.

Senator Watt: Sure.

Senator ROBERTS: Thank you. Given the alleged extensive criminal activity within the CFMEU—I know that was a different division, but the divisions do talk—have you investigated or do you intend to investigate whether any criminal activities, such as bribes or other things, could have resulted from or were a feature of the CFMEU’s involvement with the enterprise agreements, resulting in a shameful massive underpayment of casual coalminers? It seems it could not have happened without this.

Senator Watt: I don’t think anyone has ever produced any evidence of bribes or corruption involving the Mining and Energy Union or, previously, the mining division of the CFMEU. If you’ve got evidence of that, then I would strongly encourage you to refer that to the police for investigation, but I’m not aware of any evidence.

Senator ROBERTS: I believe that two miners that I accompanied, along with a barrister in my office, gave evidence to the Department of Employment and Workplace Relations and to the former minister’s staff—Minister Burke.

Senator Watt: Okay. I’ll take a look at what happened with that. As I say, if you’ve got evidence of someone taking a bribe or engaging in corrupt activity, then I’d strongly encourage you to take that to the police. They’re the authority who can lay charges.

Senator ROBERTS: Do they involve the Fair Work Ombudsman as well? They’d be interested in the motive, wouldn’t they?

Senator Watt: I think what would typically happen, if you’re talking about bribery, corruption or criminal offences—if they came to the attention of the Fair Work Ombudsman, the ombudsman would refer them to the relevant police. The Fair Work Ombudsman has responsibility for enforcing workplace laws, so offences against the Fair Work Act, but criminal offences, whether it be bribery or any other criminal offence, are a police matter.

Senator ROBERTS: To remind you, Minister Watt, this is Australia’s largest wage theft case. It’s outside the legislation that’s been passed since you came to office, and it’s not due to a loophole. Fixing the wage theft and preventing recurrence simply require compliance with the Black Coal Mining Industry Award. Did the government introduce the so-called closing loopholes bill to hide and bury Australia’s largest wage theft case?

Senator Watt: No.

Senator ROBERTS: There were no loopholes that enabled this. It was just straight-out noncompliance with the award.

Senator Watt: No, that’s not why we introduced the law.

Senator ROBERTS: Okay.

Senator Watt: We introduced the closing loopholes laws to, among other things, fix the labour hire rort that was being used by some employers.

Senator ROBERTS: This is the rort, Minister Watt.

Senator Watt: What I’m saying is that the purpose of our introducing the legislation was, among other things, same job, same pay. As I’ve pointed out to you before, Senator Roberts, you didn’t support that law.

Senator ROBERTS: Because there was no loophole. This is the cause of the underpayment. This is the cause of Australia’s largest wage theft case.

Senator Watt: If you didn’t think there was a loophole with coalmining labour hire workers getting underpaid, then I don’t agree with you. I think that was a massive loophole that was being exploited.

Senator ROBERTS: It was just noncompliance with the award. Given the extreme wealth of the CFMEU, have you or do you intend to investigate and consider whether you have, at minimum, a moral obligation to cause the CFMEU to financially contribute to compensation to affected coalminers who have been underpaid? Can you do that?

Senator Watt: I’ll take that on notice.

Senator ROBERTS: Okay. Can the CFMEU administrator do that?

Senator Watt: No, because—I wouldn’t think so, because the CFMEU administrator is responsible for the Construction and General Division of the CFMEU not the Mining and Energy Union, which is a standalone union these days.

Senator ROBERTS: Can you legislate to force those responsible for Australia’s largest wage theft case to pay the miners what they’re owed, if the findings show that?

Senator Watt: I guess, theoretically, governments can legislate on anything, as long as they’ve got a constitutional basis for that legislation.

Senator ROBERTS: I’m pleased to hear that.

Senator Watt: You could bring in a private senator’s bill. I probably shouldn’t have suggested that, should I?

Senator ROBERTS: Thank you, Minister Watt. Thank you, Chair.

Senator Watt: Can I say this really quickly. Senator Roberts, we’ve had a bit of a joke as we’ve gone along, but we take any report about wage theft seriously. All I can do is keep encouraging people like yourself, if you’ve got evidence of things—there are bodies whose role it is to investigate these things, and I’d encourage you to take them forward.

Senator ROBERTS: Yes. The Independent Workers Union of Australia is showing its mettle.

Senator Watt: They can make complaints to the Fair Work Ombudsman.

Senator ROBERTS: I understand they have.

Senator Watt: We’ll wait and see how that goes.

/0 Comments/by

Labor is Hiding Australia’s Largest Wage Theft

,

After five and a half years of holding government departments and agencies accountable, and doing our own research, we continue to pursue Australia’s largest case of wage theft. More than one BILLION dollars of underpayments involving as many as 5,000 workers. Our research has led to miners submitting complaints to the Fair Work Ombudsman (FWO). For example, a miner has been underpaid $211,000 and some miners have had at least $41,000 stolen per year of employment.

In this session with the Fair Work Commission (FWC), I asked Mr Furlong, General Manager of FWC, how many applications for regulated Labour Hire Agreements were currently under the Commission’s consideration. He stated that 55 applications had been submitted, with 11 Orders made—9 in the mining industry and 2 in the meat processing industry.

I then asked a series of questions about the relationships between Awards, Regulated Labour Hire Agreements, and Enterprise Agreements. Mr Furlong confirmed that, under the Labor government’s recent legislation, it’s standard for casual workers performing the same job as full-time workers under a Regulated Labour Hire Agreement to receive an additional 25% in pay as compensation for entitlements they do not receive. Mr Furlong agreed to look into which Awards would have applied in the absence of Labour Hire Agreement Orders and provide that information on notice.

I’ve raised this issue at every senate estimates hearing since late 2019 and finally the Fair Work Commission and Minister seem to be taking this issue seriously. Until recently, bureaucrats and Ministers have been in denial of what has been happening right under their noses and that raises questions of integrity.

Australia’s largest wage theft case has been possible only with the participation of the relevant union bosses in the CFMEU/MEU, labour-hire firms, mine owners and the FWC’s approval.

Transcript

Senator ROBERTS: I’m interested in exploring the nature of labour hire arrangements and their relationship with associated awards, and also partly the CFMEU administrator. What’s the total number of labour hire arrangements currently before the commission to date? 

Mr Furlong: I might start here and then ask Ms Scarlett to assist. My understanding is that to 30 September we’ve received 55 applications for regulated labour hire authorisation orders. And of that— 

Senator ROBERTS: What do you mean by ‘regulated’? 

Mr Furlong: Of that number? 

Senator ROBERTS: No, what does the term ‘regulated’ refer to? 

Mr Furlong: That’s the term— 

Senator ROBERTS: ‘Come before you guys’? 

Mr Furlong: given under the loopholes mark 1 changes. In terms of the number of orders that have been made, there are 11. Nine of them, I understand, are in the mining industry and two are in the meat-processing industry. Ms Scarlett, is there anything you’d like to add? 

Senator ROBERTS: That number was how many? 

Ms Scarlett: It was 55. As Mr Furlong has said, 11 labour hire arrangement orders have been issued since the commencement of the provisions. 

Senator ROBERTS: What sorts of orders? 

Ms Scarlett: Regulated labour hire arrangement orders. Of the 55 applications, 11 orders have been made, a number of applications have been withdrawn and the remaining matters remain before the commission. 

Senator ROBERTS: What’s the breakdown of these labour hire arrangement orders for each award that would otherwise have covered the employees? You might have to take that on notice. 

Ms Scarlett: Yes. I’m not sure that we can go to the award. The regulated labour hire arrangement orders apply where there is a covered employment instrument such as an enterprise agreement in place. So it’s not necessarily an assessment of the award which applies, rather whether an enterprise agreement is in place that would cover the work of the labour hire employees if they were working in the business. 

Senator ROBERTS: The enterprise agreement would be in an industry or work site that is covered by an award, but the enterprise agreement supersedes the award; is that right? 

Ms Scarlett: That’s correct. 

Senator ROBERTS: So would there be any such sites that only have an enterprise agreement and no back-up award? 

Ms Scarlett: I don’t believe there would be, but I’d need to take that on notice. 

Senator ROBERTS: If you could, please do. I’d like to know the connection to the award, or to the award that would be in place if the enterprise agreement wasn’t there? 

Ms Scarlett: I understand. 

Senator ROBERTS: Can you advice whether there would be a general expectation that anyone working as a casual should or would receive 25 per cent more than a full-time employee doing similar or the same work? 

Ms Scarlett: The regulated labour hire arrangement order provisions provide for a 25 per cent casual loading for regulated labour hire employees. 

Senator ROBERTS: Casuals. 

Ms Scarlett: Casuals. 

Senator ROBERTS: Can you advice if there is specific legislation, regulation or policy that requires that a casual employee should or would receive 25 per cent more than a full-time employee doing similar or the same work? I know that it’s a community expectation and it’s a right almost, but is it enshrined in law, statute or policy? 

Ms Scarlett: I’m not aware of a specific provision in legislation that requires a 25 per cent loading. 

Senator ROBERTS: Are you able to check that? 

Ms Scarlett: Yes. 

Senator ROBERTS: You’ll take on notice to check it? It is fairly normal that awards require casual employees to receive 25 per cent more than a full-time employee doing similar or the same work? Can you point to any award that does not require a casual employee to be paid 25 per cent more than a full-time employee doing similar or the same work? 

Mr Furlong: I can’t point to an award, but I’ll happily take it on notice. There are 155 modern awards, Senator. 

Senator ROBERTS: Yes, so I’d like to know if that’s normal. 

Mr Furlong: Can I clarify the question so we make sure that we provide you with the information that you require? 

Senator ROBERTS: Yes, sure. Is it fairly normal that awards require casual employees to receive 25 per cent more than a full-time employee doing similar or the same work? That’s the first part. 

Mr Furlong: Yes. 

Senator ROBERTS: The second part is: can you point to any award that does not require a casual employee to be paid 25 per cent more than a full-time employee doing similar or the same work? 

Mr Furlong: We’ll take it on notice. 

Senator ROBERTS: Thank you, Mr Furlong. In applying the better off overall test, the BOOT, to enterprise agreement applications, would it be the normal expectation of the Fair Work Commission, having regard to pay rates of casual workers, that casual employees should or would receive 25 per cent more than a full-time employee doing similar or the same work? 

Mr Furlong: I will ask Mr Corcoran to assist you, Senator. 

Mr Corcoran: Each application is considered on its own merits by the member. They take into account the circumstances in their entirety. It’s not a line-by-line assessment that the member will make; the better off overall test is a global assessment. 

Senator ROBERTS: A global assessment. If an award did not allow for casual employment, would this create the circumstance in which casual employees working under enterprise agreements subject to the set award would be paid less than full-time employees and/or be paid a rate that would be less than that of a full-time employee plus 25 per cent? 

Mr Corcoran: A casual employee wouldn’t be paid less than a full-time employee, I wouldn’t have thought, in normal circumstances. 

Senator ROBERTS: A casual employee would be paid less than a full-time— 

Mr Corcoran: I thought they would not have been paid less. 

Senator ROBERTS: Sorry. And they’d be paid full time plus 25 per cent? 

Mr Furlong: With some of these questions, I return to the correspondence I provided you on 11 January this year regarding information published on your website but also relating to the better off overall test and the Chandler Macleod Northern District of NSW Black Coal Mining Agreement 2015. I’m not too sure if you still have access to that correspondence. 

Senator ROBERTS: I do. It’s sitting on my desk—with an intent to reply. 

Mr Furlong: This series of questions has been covered in that correspondence. I’m happy to table it, if that would assist. 

Senator ROBERTS: No, that’s fine; I know exactly where it is on my desk. Can you envisage a circumstance in which, if a union objected to an enterprise agreement because the pay rate of casuals would be less than that of a full-time employee plus 25 per cent, the Fair Work Commission would ignore the objections of the union and endorse the agreement despite the union’s objections? 

Mr Furlong: As we’ve discussed several times, the better off overall test, as Mr Corcoran said, is a global assessment to ensure the employees are better off overall. It is always determined by a member of the commission. Members, as you’re aware, are independent statutory office holders who are required to ensure that, in their decisions, they are satisfying the obligation, functions and prescribed content of the enterprise agreements before they can be satisfied and then ultimately approve the decision to make the agreement operational. If a party to that agreement or someone who has a valid interest in that agreement is unsatisfied, is concerned with that agreement application, they can seek to have the agreement overturned through the mechanism of an appeal; that is their right. The other thing I’d like to add here— 

Senator ROBERTS: Just on the answer to that question: would the commission ignore the objections in assessing the enterprise agreement? Would the commission ignore the objections of the union as part of that? I’m not talking about passing it and then objecting to it; I’m talking about objecting as they’re processing it. 

Mr Furlong: Prior to the application being made? 

Senator ROBERTS: Yes. 

Mr Furlong: It would be the subject of deliberation of a member before the tribunal. 

Senator ROBERTS: It’d be pretty unlikely, though, wouldn’t it? 

Mr Furlong: I can’t speak on behalf of our members and their independent decision-making. 

Senator ROBERTS: Have you ever seen a member overturn a union objection? 

Mr Furlong: As we’ve discussed, my role is to provide administrative support to the president of the commission to ensure— 

Senator ROBERTS: It’d be pretty unlikely, wouldn’t it? 

Mr Furlong: I can’t answer that. 

Senator ROBERTS: Alright. I cut you off there. 

Mr Furlong: I was just going to say that if an agreement has reached or passed its normal expiry date, then a party to that agreement can seek to have the agreement unilaterally terminated. They will then fall back to the underpinning award—or they can have the right to negotiate a new enterprise agreement. 

Senator ROBERTS: Thank you for the extra detail; it goes outside what I’m looking for. In the process of getting approval for an enterprise agreement from the Fair Work Commission, if a union objected to an enterprise agreement because the pay rate of casuals would be less than that of a full-time employee plus 25 per cent, the Fair Work Commission would hardly ignore the objections of the union and endorse the agreement despite the union’s objections. 

Mr Furlong: It’s a case-by-case basis, on the information provided to the members in the consideration of whether or not— 

Senator ROBERTS: What would be the likelihood? Have you heard of any? 

Mr Furlong: As I said, it’s not my role to comment on cases determined by members of the commission. It’s my responsibility to provide the president with administrative support, as the general manager, to ensure the commission can operate effectively. 

Senator ROBERTS: I’m not asking you for your opinion. 

Mr Furlong: I can’t comment on cases that come before the commission. 

Senator ROBERTS: I’m not asking you to. I’m not asking for your opinion on the member making the decision. I’m asking: would it happen, and has it happened? 

Mr Furlong: I don’t have any oversight of particular cases that move through the tribunal side of the commission. 

Senator ROBERTS: Would anyone else care to comment? It seems to me to be almost impossible; I won’t say it is impossible! 

Mr Corcoran: I would say a member would always consider the views of the parties, but ultimately the member must be satisfied that the requirements of the act have been met. 

Senator ROBERTS: Thank you. I have some questions for the minister; I think most of them will be pretty simple, Minister. I table this letter from the Independent Workers Union of Australia; it’s the letter that was sent to the CFMEU administrator, copied to you, me and Senator Cash. I think these questions will be fairly simple, given your background, Minister. Why is the CFMEU administrator not here at Senate estimates? 

Senator Watt: They’re not a public official. I think pretty much every person who attends estimates is either a minister or a public servant. The administrator is not a public servant. There are probably other reasons but that would be one of them. 

Senator ROBERTS: Who pays his salary? 

Senator Watt: He’s being paid by the CFMEU in the same way that officials of the union have traditionally been paid. 

Senator ROBERTS: That explains that. What responsibilities does the CFMEU administrator have with or to the Fair Work Commission? I imagine he’d have to deal with them a fair bit. 

Senator Watt: Mr Furlong might be better placed. 

Mr Furlong: Under the registered organisations act, I am the regulator of registered organisations. 

Senator ROBERTS: So you’re overseeing it? 

Mr Furlong: I oversee all the registered organisations, employer and employee alike. 

Senator ROBERTS: Could the CFMEU administrator authorise payment of the underpaid miners from the CFMEU mining division using CFMEU funds? 

Mr Furlong: I can’t speak on behalf of the administrator. I don’t think you were here for this section of my evidence: the administrator operates independent of government. He will make decisions on behalf of the union as he sees fit. 

Senator ROBERTS: Can he investigate wage theft from casual miners in Central Queensland and the Hunter Valley? 

Mr Furlong: In representing the interests of his members, he can look into the underpayments. It’s a core function of trade unions to do that. 

Senator Watt: Noting that the administrator is the administrator of the Construction and General Division of the CFMEU. To use the colloquial, his members are members of the Construction and General Division of the CFMEU, not, for example, members of the maritime division and certainly not people who are now members of the Mining and Energy Union. His only responsibility is for the Construction and General Division, and its members. 

Senator ROBERTS: The government said it needed the parliament to create the CFMEU administrator to deal with alleged CFMEU illegality and criminality, didn’t it—amongst other things? 

Senator Watt: I might look back at what we said. We had a debate this morning about it. It’s not possible for me to go into the intention of the administration because of the High Court litigation. I’m sure you can look back at what was said in the second reading speech. 

Senator ROBERTS: That was my impression, so correct me if I’m wrong. Now, management of this is not subject to parliamentary scrutiny. You said it would be a matter of immense public importance. 

Senator Watt: I think there has been a lot of public interest in this issue. 

Senator ROBERTS: Yes—so wouldn’t it be better to have him subject to parliamentary scrutiny and Senate estimates? 

Senator Watt: I’m looking around at our lawyers. I might get Ms Godden, the departmental chief counsel, back up, if that’s okay. I know departmental people don’t normally appear at the table for this. Senator Roberts, I don’t know if you were here this morning but we had a discussion about issues that we could answer questions on and issues that we couldn’t because they might involve the High Court case. I don’t want to say anything which will interfere with that, and I know you don’t want me to either. Could you ask the question again, so I can get some advice on whether I can answer that. 

Senator ROBERTS: My understanding is the government said it needed parliament to create the CFMEU administrator to deal with the alleged CFMEU illegality and criminality. Now the oversight of the CFMEU administrator is not subject to parliamentary scrutiny, and yet it was said to be a matter of immense public importance. 

Senator Watt: I have no doubt it’s a matter of great public interest. I was saying before to Senator Payman that either the legislation or the scheme of administration requires the administrator to provide a report to me every six months, which I’m required to table in the parliament, so there is a form of parliamentary accountability through that. That was considered to be the appropriate amount of reporting for a role that is completely independent of government. 

CHAIR: Senator Roberts, I know you’ve been very patient during the day, but this is— 

Senator ROBERTS: Given a report in the media on 12 April this year—I mentioned this in a speech in the Senate, but there was no answer to it—is the real reason for the CFMEU being placed in administration to stop John Setka taking over Labor in Victoria, as he reported? And why wouldn’t constituents be suspicious of the arrangement? 

Senator Watt: As I said in response to an earlier question, I’d really like to be able to answer that question but it’s probably not wise that I do given the High Court litigation. 

Senator ROBERTS: Thank you, Chair. 

Senator Watt: But I’m told you might want to have a look at paragraph 11 of the revised explanatory memorandum, which provides some reasoning for the legislation. 

Senator ROBERTS: Thank you. 

/0 Comments/by

Labor’s Union Ties and Cover-ups

,

Anthony Albanese and his Labor government have lost the people’s trust and support. Labor is tied to the CFMEU because of the union’s massive donations. They are also hiding the largest wage theft in Australia’s history, especially among miners in Central Queensland and the Hunter Valley, who are owed significant back pay. 

Recent actions by Labor, such as the late submission of bills, suggest a cover-up to avoid scrutiny. Unions like the CFMEU have lost their way, evident during the COVID-19 lockdowns when members rebelled against their union’s lack of care. Labor abolished the ABCC despite criminal issues within the unions. Labor’s relationship with the CFMEU is a problem and is driven by donations.

As a former union member, I value true unions like the Miners Federation. Today, many union bosses prioritise personal gain, neglecting their members, as seen with the CFMEU and Mining and Energy Union. Workers are forced into monopolistic unions without choice, but alternatives like Queensland’s Red Union exist.  Protecting union monopolies will further their demise and lower wages. Choice is crucial. 

Look at this: Chandler Macleod Group, part of Recruit Holdings, the world’s largest labour hire company, works with the CFMEU and Mining and Energy Union in Hunter and Central Queensland.  The federal government spends billions on labour hire – and the Fair Work Commission has approved these questionable arrangements. BHP, with union help, forced workers from permanent jobs to lower-paying Tesla labour hire, then to Chandler Macleod with another big pay cut.

We need open scrutiny and an inquiry, not just window dressing. The Bill should go to committee, or at least be heard on Friday.  We want to amend the Bill to enable challenges to the Minister’s regulations.  We are committed to seeing criminal charges laid against union crooks, reinstating the watchdog and pushing for comprehensive industrial relations reform.

Transcript

Trust has been lost. Anthony Albanese and his Labor government have lost the people’s trust, lost the people’s confidence, lost the people’s support. Labor supports the CFMEU because the CFMEU gives it massive donations—millions and millions of cash for election campaigns. Labor is wedded to the CFMEU. Labor is dependent on the CFMEU. 

Labor is hiding the biggest wage theft in Australia’s history. Five years I’ve spent exposing the scam. We have an excellent independent report, Coal miners wage theft, done in February this year. It vindicates what I’ve been pushing for five years. Some miners in Central Queensland and the Hunter Valley are owed $41,000 per annum in wage theft. The Independent Workers Union, a new, fair-dinkum union operating in Central Queensland and the Hunter Valley, has lodged complaints for many miners because the CFMEU and the Mining and Energy Union have not bothered to do so. They won’t go after the back pay of the wage theft. 

I’m aware of a complaint lodged just recently, in the last couple of days, to the Fair Work Ombudsman by the Independent Workers Union, seeking, for one person alone, $211,000 in back pay—$211,000 in wage theft that this Labor government condones and hides. The CFMEU drove the theft of wages from Central Queensland and Hunter miners. The workers’ former protectors in the CFMEU are now their exploiters. They’re hurting workers. I wonder: will Labor’s administrator allocate the CFMEU funds to make good the miners’ wages? For one person it’s $211,000; there are over 5,000 miners losing up to or around $41,000 per year of service. 

Labor MPs are complicit because there has been a protection racket for their mates in the CFMEU. Labor MPs in the Hunter denied and then ignored my claims—my claims put to them in writing. I hand-delivered, to Dan Repacholi’s office here in parliament, my letter to him explaining this. Not a peep! Instead, we got lies from Mr Repacholi in the Hunter, and similar from Joel Fitzgibbon. Minister Watt in the Senate has denigrated, ridiculed and dismissed more than 5,000 miners’ legal improvement entitlements. And I have been proven correct. 

Let’s return to Monday and Minister Gallagher’s word, ‘urgent’. ‘This is urgent,’ she said, as to the administrator for the CFMEU. I add two words: ‘cover up’. It’s a cover-up. Minister Gallagher says Labor’s administrator is ‘urgent’, yet Minister Watt dropped this bill on us late on Monday night. What gives? Do you expect us to believe that it was drafted on Sunday—that they did an all-nighter in the department on Sunday with lots of coffee? Why did Labor drop it on us without giving it to us earlier? Is it to avoid scrutiny? Yes—I can see some senators agreeing. When did the Greens and the teal Senator Pocock get copies? We’ve had instances in the past where they have got copies of new bills two weeks before we have and they’ve been dropped on us at the last minute. 

Then Senator Gallagher sought exemption from the normal bills process. Speaking of exemption, Senator Gallagher said, ‘The Albanese government says it’s a clear path.’ Yet the bill is littered with the word ‘may’. It’s a very unclear bill. It needs the word ‘will’. Secondly, she said, ‘The people of Australia are expecting a clear response.’ With an unclear bill? I echo Senator O’Sullivan’s call for a hearing. Then Senator Gallagher said, ‘We will give you a firm view at the end of the week.’ You will only get a firm view with a hearing. We need a firm view and scrutiny of this legislation. We need ‘may’ to be replaced by ‘will’ quite often. We need an opportunity for bipartisan input. 

I’m a former member of three unions. I know genuine unions are necessary. The genuine union movement has a long and proud history, going back to Wales and the lodge system in the Miners Federation, which I was a proud member and participant of. Yet today so many union bosses have forgot their workers and members. Why? Today workers’ protections are enshrined in law—as they should be—including safety, wages, conditions, security, retirement, health and many other provisions. Now the union bosses erode and steal these for personal gain, as the CFMEU and the Mining and Energy Union have done in Central Queensland and the Hunter. Personal gain and power, that’s what it’s about now, not looking after members. Why? Because they’re an untouchable monopoly. Workers need choice. Workers don’t have choice. They must join the union in their industry. That’s it. There’s no choice. The Red Union in Queensland and around Australia and in New Zealand is giving workers choice. 

Thirdly, the Fair Work Commission and the Fair Work Ombudsman have failed to protect miners and workers. The Fair Work Commission has overseen and approved the theft of wages from casual coalminers in the Hunter Valley. As a boy, I lived in Central Queensland and the Hunter coalfields. My dad was in coalmining. I graduated with a mining engineers degree, an honours degree, and then decided I’d better go and learn something, so I worked at the coalface.  

I came across Bill Chapman, the legendary president of the Northern District Miners Federation. He was a wonderful man. I sided with him in an open-air meeting when I worked at Westfalen’s No. 2 mine when I worked on the night shift there. My dad was complimented, highly, by Bill Chapman at my father’s retirement. My dad and Bill used to argue a lot, but they respected each other, because Bill was genuinely concerned about workers. I knew Mattie Best before he died. I worked with him. I played football with him. He was my football coach in Central Queensland when I played rugby league. He was a genuine union delegate who had respect from workers and management and fellow union bosses. He called out safety issues when they were abused. 

I am proud to support real unions that work in workers’ interests. I worked as a mine manager with the CFMEU union bosses. We developed a landmark award that I instigated, and I instigated many previously undreamt-of provisions because they were to the benefit of the workers and productivity. I worked with the union. 

The rank and file in the CFMEU in Victoria during the COVID mismanagement erupted in a mutiny against vaccine mandates and lockdowns. The members realised their union bosses did not care, and they revolted. Labor then abolished the Australian Building and Construction Commission. Senator Watt said, ‘Australians expected parliament to deal with criminal allegations inside the recalcitrant union promptly.’ How, looking at this vague bill? Where is the trust? It’s been smashed. Labor supports the CFMEU because of donations; Labor is wedded to the CFMEU because it’s dependent on donations.  

Yesterday we heard Senator Pocock, a teal senator, say: ‘We need to be cleaning up the union.’ Has he forgotten that he supported the abolition of the ABCC? The CFMEU has assisted in theft from miners, as I’ve explained. They’re now exploiting miners. The Labor Party has been complicit. Both Joel Fitzgibbon and Dan Repacholi reportedly get campaign donations from the CFMEU. Then we get Labor’s fabrication. 

The ACTING DEPUTY PRESIDENT (Senator Allman-Payne): Minister McAllister? 

Senator McAllister: I wonder if Senator Roberts could be asked to refer to people by their proper titles.  

The ACTING DEPUTY PRESIDENT: Thank you, Senator.  

Senator ROBERTS: Labor fabricated an imaginary loophole, which the miners in Central Queensland and the Hunter Valley told me was a fabrication, and I worked out it is. Then they pretended to close the loophole with their closing loopholes bill. All it needed was enforcement of the Fair Work Act and the Black Coal Mining Industry Award. Minister Watt and Minister Burke, his predecessor, and Mr Fitzgibbon and Mr Repacholi are complicit in this way theft, the largest in Australia. Labor enabled casuals— 

The ACTING DEPUTY PRESIDENT: Senator, please resume your seat. Minister? 

Senator McAllister: Senator Roberts is reflecting very directly on a range of people, including ministers who represent the government in this chamber, and he should withdraw. 

The ACTING DEPUTY PRESIDENT: It would assist the chamber. You were certainly straying into impugning members of the parliament. 

Senator ROBERTS: To assist the chamber, and for that reason, I will withdraw. But Labor enabled casuals in coalmining. The Black Coal Mining Industry Award prohibited casuals on production; it still does. Labor, under Prime Minister Gillard, changed the coal long service leave provisions legislation to include casuals. I’m told that Anthony Albanese read the bill into parliament early in 2011. That’s what enabled this wage theft. 

The ACTING DEPUTY PRESIDENT: Senator— 

Senator ROBERTS: Sorry—Mr Albanese, the Prime Minister. 

The ACTING DEPUTY PRESIDENT: This is happening reasonably regularly throughout your contribution. Could you please make sure that you refer to everyone to whom you are referring using their correct titles. 

Senator ROBERTS: Certainly. Labor has forgotten workers. It’s actually helping union bosses—union bosses from the CFMEU—to exploit workers. Minister Watt knows of the wage theft, because he advised us of the Mining and Energy Union’s application for a new enterprise agreement. We advised him the application confirms our work. And yet there has been no Mining and Energy Union application for back pay. Why? Because when they were part of the CFMEU they deliberately conjured up illegal enterprise agreements. We’ve had no word from Minister Watt regarding the investigation into wage theft that the Senate required thanks to my amendment to a bill earlier this year. We do not believe that Minister Watt is fit to oversee the CFMEU administrator. It’s a furphy. 

Look at the other unions, the health and safety unions, stealing from the lowest-paid workers in Australia, and SDA union bosses corrupt. The Fair Work Act covers union bosses’ greed, theft and abuse. Look at Craig Thomson. We’re tired of the cover-ups. 

Let’s get on to the root cause. It was publicly revealed in the Australian Financial Review on 12 April this year. Their journalist David Marin-Guzman wrote an article headlined ‘CFMEU push to take control of the Labor Party’. I quote: 

John Setka is planning to use the militant construction union’s hundreds of delegates and members to boost the CFMEU’s influence on internal Labor politics in the Victorian and federal parliaments. 

Another quote: 

Such a large membership drive could give the CFMEU significant control over Labor preselections and party conferences, which elect the party executive and vote on policy— 

even the Premier in Victoria. That’s what’s going on here; it’s a power play. 

Then we see Labor Premier Steven Miles in Queensland accused of silencing the Crime and Corruption Commission. Mark Le Grand, who spent 10 years as chief investigator at the then Criminal Justice Commission in the wake of the 1989 Fitzgerald inquiry, told the Australian there would have been no point in having the royal commission if Fitzgerald could not report on its investigation. Labor want to shut down the reporting. I could go on with more quotes. 

We then have Robert Gottliebsen telling us of the dire predicament of Australia’s productivity decline. Falling productivity—yeah, that’s the key to wage rises! The CFMEU is guilty of destroying productivity. When productivity falls it kills industry, kills the future and kills jobs. Add that to the energy prices, the industrial relations policies, the inflation, the productivity decline. It’s killing the economy, killing national security and killing the standard of living. 

This is about more than just the CFMEU administrator; this is about trust. We see in Queensland that the Labor Party and the union movement are not two separate entities; they are one entity. Minister Grace Grace, when she lost her seat and Campbell Newman took over a decade ago, went straight into a job at $180,000 a year at the Queensland Teachers Union. Then, when Labor got back into power, she slid straight back into working directly with the Labor Party. The whole time she worked with the Labor Party. We’ve seen the Labor government in Queensland outlaw the Red Union because it’s competition for the Queensland Teachers Union and the Queensland nurses union. There’s a monopoly in industrial relations and no accountability. Then we have provisions. I draw people’s attention to provisions such as to 323B in the new act, clause 1, clause 2, which I do not have time to go into at the moment. These are things we are focusing on. Section 323C clause 2, section 323D clause 1—so loose, so vague, so open. We need accountability. We need competition amongst unions with better service to members. We need higher sustained wages now and into the future, because an industry that is healthy will pay higher wages. That is a proven fact. 

Protecting union monopolies will continue union demise and lead to lower wages. Choice is essential. Look at the players in this: Chandler McLeod Group, part of Recruit Holdings, the world’s largest labour hire company working with the CFMEU and the Mining and Energy Union in the Hunter and Central Queensland. Federal government itself uses billions of dollars of labour hire. The Fair Work Commission has approved these awards. BHP forced people to change from being BHP people with permanent employment to Tesla labour hire with a big pay cut, thanks to the union, and then forced to go to Chandler Macleod with another big pay cut. 

We need open scrutiny, we need a hearing, not window-dressing. It needs to be sent to committee, or at least get a hearing on Friday. We are thinking of an amendment requesting the administrator investigate coalmining wage theft as per one union report and organise for the CFMEU finances to cover that—but it is not part of the bill, so we won’t be doing that. We want to amend the bill to allow disallowance of the minister’s regulations. We want to see criminal charges. We want to see the watchdog brought back and comprehensive reform to industrial relations. 

/3 Comments/by

$1 Billion Exploitation of Workers Backed by Labor

,

The CFMEU has stolen over a billion dollars in Australia’s largest wage theft case, exploiting the very workers it was meant to protect. CFMEU union bosses colluded in this theft, as confirmed by an independent report I commissioned called Coalminers’ Wage Theft. An analysis of five enterprise agreements in Central Queensland and the Hunter Valley shows wage theft ranging from $21,000 to $41,000 per person, per year.  

The Independent Workers Union of Australia has lodged multiple complaints with the Fair Work Ombudsman, including one for $211,000 owed to a single worker. Despite the Mining and Energy Union splitting from the CFMEU, it has recently applied to negotiate a new enterprise agreement, but won’t seek back pay for miners, as they know this would expose them.  The Independent Workers Union now represents miners in Central Queensland and the Hunter Valley, charging union dues less than half of the Mining and Energy Union because they don’t donate millions to the Labor Party. The same is true for other sectors, like teaching and nursing, where new unions have much lower dues. We must end monopoly unions and introduce competition, which will allow members to hold unions accountable. 

Labor Ministers, departments and agencies are colluding to enable wage theft, especially in the Hunter Valley electorate, where Labor MPs are complicit. Despite a Senate investigation being ordered months ago, nothing has happened — Labor is turning a blind eye, likely because they rely on millions in donations from the CFMEU. Minister Watt’s push for “no disallowance” is about maintaining control, with the party entangled in a power struggle with the CFMEU. 

The CFMEU, tied to criminal bikie gangs, shows no concern for its members’ health, wages, or retirement. Union bosses, sitting on agency boards meant to protect workers, are either stealing from members or allowing it to happen. The conflicts of interest, particularly with CFMEU members holding positions on superannuation boards, are enormous.  Labor won’t fix this, and their collusion with the CFMEU puts them above the law. 

Transcript

The CFMEU stole more than a billion dollars from members it was supposedly protecting in Australia’s largest ever case of wage theft. The key to this theft was CFMEU union bosses appointed as directors to oversight agencies supposedly protecting workers. They colluded and enabled that theft from their own members. This is verified. The figures are verified in an independent report that I commissioned called Coalminers’ Wage Theft, printed earlier in the year. 

We have seen an analysis of five enterprise agreements in Central Queensland and the Hunter Valley with the wage theft varying from $41,000 per person, per year to $21,000 per person, per year. The Independent Workers Union of Australia, now getting members in the mining sector in the Hunter Valley and Central Queensland, has just lodged a number of complaints with the Fair Work Ombudsman. One of the complaints is for $211,000 in money owed due to wage theft for one person. 

The CFMEU drove that theft of wages, so what we can see is the former protector of miners has been their exploiter, with collusion of the regulator, the Fair Work Commission. It’s been verified independently because the Mining and Energy Union, which split off from the CFMEU—it couldn’t handle the CFMEU—and which looks after miners recently applied to the Fair Work Commission to negotiate a new enterprise agreement. The uptick in wages has been around $50,000. It’s been verified they’ve been underpaid. What has not happened is that same union, the Mining and Energy Union, which used to be part of the CFMEU, will not go back and seek back pay, because they know that will expose them. There is no back pay. They will let these miners lose $211,000. They will let these miners lose $41,000 per person, per year. 

So now we have the Independent Workers’ Union of Australia making inroads in the mining industry in the coalmines of Central Queensland and the Hunter Valley. Their union dues are less than half of the Mining and Energy Union. Why? That’s because they don’t pay millions of dollars in donations to the Labor Party. It is the same with the Queensland Teachers’ Union. The new Red Union’s dues are less than half of the Queensland Teachers Union. It is the same with the nursing union, where the dues of the new Red Union and the Nurses’ Professional Association of Queensland are less than half of the Queensland Nursing Union. What we need to do in the union side of things is end monopoly unions and make sure unions have competition. That will fix it. Members can scrutinise when there is competition. 

Let’s move to what I said earlier in my opening statement. The directors in the coalmining agencies that oversaw this theft from coalminers, the directors of Coal Mines Insurance, ignored the plight of miners. We even know of miners who failed to get their Coal Mines Insurance that they were entitled to, scrimping and saving and sleeping on their parents’ garage floor in the Hunter Valley. That’s what the CFMEU directors have done. They turned a blind eye to their duty to look after miners. 

Coal Mines Insurance is a statutory agency with the CFMEU providing half the directors. AUSCOAL Superannuation, another one supposed to look after super, has provided admin services to coal long service leave, another government entity. So AUSCOAL Superannuation, which has directors from the CFMEU, provided the administrative services for coal long service leave and that enabled the hiding of the wage theft, because the CFMEU directors were 50 per cent of Coal Mines Insurance, AUSCOAL Superannuation and Coal Services, which looks after basic things like health checks, medical checks. AUSCOAL, by the way, has been renamed Mine Wealth + Wellbeing—that’s a cute little phrase!—and now Mine Super. These directors have prevented many of the benefits that they should have been overseeing going to miners. They stole the rights and entitlements of their own members. 

By the way, the Labor Party under Julia Gillard changed the coal long service leave legislation in 2011 to enable the use of casuals, because casuals are not allowed in the black coalmining industry award. They wouldn’t have been able to get their super. So the Labor Party, to enable this scam, changed the coal long service leave legislation in 2011. The next thing: we can’t rely upon the normal back stop, which is the Labor ministers, departments and agencies. I’ve just explained how the agencies are colluding, the departments are colluding and the Labor ministers are colluding. This wage theft would not have occurred without the deliberate collusion of Labor Party MPs in the Hunter electorate, who just hid this atrocious theft. The Senate ordered an investigation a couple of months ago into this. Two ministers since then, Minister Burke and Minister Watt—they’ve done nothing. They had not even reported back to the Senate—they’ve done nothing. That’s the Labor Party. So much for looking after the workers! 

I wonder if it’s because the Labor Party relies on millions of dollars of donations from the CFMEU? Would that be the answer? Would it? 

Senator Hanson: Yes. 

The Labor Party is wedded to donations from the CFMEU, the crooked CFMEU. Minister Watt, in section 323B(2) of his legislation, to which we have an amendment, wants an absence of a disallowable regulation. He wants no disallowance, so that he can control the whole show. Then we see the Labor Party also being tainted by John Setka. In a report in the Australian Financial Review, on 12 April this year, David Marin-Guzman, a journalist with the Australian Financial Review, said that ‘the core issue here is that John Setka stood up and said he will take over the Labor Party and move members of the CFMEU into branches and then preselect various candidates, and also the Premier’. That’s what we see going on here—the Labor Party in a massive cover-up and massive wrestle with the CFMEU. By the way—I think Senator Hanson mentioned it—the size of the funds in question is just short, $1 billion short, of $100 billion in funds. That is twice the Australian defence budget. That’s more money than Belgium makes in a year. And we want to take it away from parliamentary scrutiny? Like hell. That’s why we need this reference to the committee. 

Then we see more tainting, with the CFMEU being connected with bikie gangs, criminal bikie gangs. Then we see Senator Hanson’s terms of reference. I must commend Senator Hanson for introducing this motion. The first term of reference that I want to highlight—I’ll read it for the reference committee: 

  • … the broader impact of public allegations of misconduct within the CFMEU on the governance and trust management practices of industry superannuation funds … 

That’s basic. These people have shown that they don’t care about their members—their members’ lives, their members’ health, their members’ workers compensation, their workers’ livelihoods, their workers’ wages or their workers’ retirement. They don’t care. They bypassed the retirement provisions. The next one I want to read out is term of reference (a): 

  • … the implications of CFMEU members holding board positions on these superannuation funds, and the potential conflicts of interest that may arise … 

The potential conflicts of interest are enormous. We can’t rely on the Labor Party to clean it up, nor on departments and agencies from the Labor government. We see them tightly knit together. The second of Senator Hanson’s six terms of reference is: 

the adequacy of the independent expert review mandated by the Australian Prudential Regulation Authority (APRA) in relation to trustees’ compliance with their duty to act in the best financial interests of beneficiaries of the funds; 

This is absolutely essential. The CFMEU union bosses who are directors of agencies—statutory bodies charged with the responsibility to protect members—are stealing from the members or enabling their agencies to steal from members. This lot are above the law. Senator Hanson read out the note from the person from Cross River Rail who is not a member of the CFMEU. They are ‘intimidated’, ‘frightened’ and ‘scared to work’—in our country, they are scared to work. We have now a proven record of the CFMEU stealing from members and workers. Wouldn’t it be going on in the $100 billion of super funds they manage? I support the referral of this matter to committee, to protect members so that they can retire with security and dignity. 

/by

Fair Work Ombudsman Denies Responsibility for Enterprise Agreement Validity

,

I enquired about the number of requests for assistance that had been sent to the Fair Work Ombudsman (FWO) and was informed that none had been received during that week, attributing this to potential delays in processing. They mentioned that their preferred method for addressing issues is via phone calls and stated they wouldn’t be establishing any new methods for submitting materials that exceed the current 1000 character limit.

Furthermore, the FWO made it clear that they wouldn’t be accepting responsibility for the validity of any enterprise agreement approved by the Fair Work Commission.

Transcript

Senator ROBERTS: Thank you for appearing again.  

Ms Booth: Senator.  

Senator ROBERTS: How many complaints has your office received about stolen wages from coalminers working for labour hire companies?  

Ms Booth: We may or may not be able to give you that information right now, but I cannot. My staff may be able to assist. Ms Volzke, do you have those numbers?  

Ms Volzke: I don’t have the exact number. The requests for assistance are low, but you know that we have had a number of formal investigations in relation to black coal mining employees.  

Senator ROBERTS: Ms Volzke, three requests for the Fair Work Ombudsman to investigate worker underpayment under the Black Coal Mining Industry Award were sent to your office recently.  

Ms Booth: We could ask Mr Scully if he has that information, as he’s the responsible person.  

Mr Scully: As for your first question, the information I have before me is that, with respect to disputes received from employees or participants in the coalmining industry, in the 2022-23 financial year there were nine; in this current financial year to the end of March there were six.  

Senator ROBERTS: Does that include the recent ones I have learned about?  

Mr Scully: Of the recent ones you are referring to, one was in October 2021, another was in April 2022 and another in June 2023. I understand that they would be included in those numbers.  

Senator ROBERTS: I have learned of three others that were submitted. The Independent Workers’ Union of Australia submitted, I am told, via email address, three requests for the Fair Work Ombudsman to investigate worker underpayment under the Black Coal Mining Industry Award, each of the three on behalf of an underpaid coalminer. That was in the last week.  

Ms Booth: We wouldn’t that have data available yet because it wouldn’t have reached the status of an investigation; they would have to be triaged first. So that will be for another Senate estimates.  

Ms Volzke: Senator, in relation to those most recent complaints, would I be able to ask about the date and time of the underpayments? Are we talking about historical, older underpayments?  

Senator ROBERTS: It varies. Some are over extended years. I can give you some information. The miners whose assessments have been completed have given approval for their data to be shared, with individual names withheld. I can give you their Fair Work Ombudsman reference numbers. One is coalminer Fair Work Ombudsman reference No. 3389142, years assessed 2013-18, and amount underpaid $121,000. That is for one man or maybe a woman; I know that there are women involved. Another is coalminer Fair Work Ombudsman reference No. 3380088, years assessed 2013-21, and underpayment assessed at $104,000. A further one is coalminer Fair Work Ombudsman reference No. 3380122; five years are listed, but he or she is still doing assessments for another three years, and the total there, so far, is $54,000, but it’s expected to top out at $85,000. These are not small amounts of money. My understanding is that many more miners are now applying for the Independent Workers Union of Australia to lodge complaints or, I think you call them, requests for investigation.  

Ms Booth: Requests for assistance.  

Ms Volzke: Senator, in relation to those matters, again, they traverse a period of time when we had the SAJER legislation passed, which was under the previous coalition government, and the Rossato decision; they sit over the top. Now we have the most recent legislation, and I think Minister Watt referred to one of those ‘same job same pay’ orders already having been made. All those matters that you raise still raise those core issues that we spoke about previously, when you and I met, I think, towards the beginning of last year, about the consequences of the black coal mining award not providing for casual employment. The statutory definition changes to casual employment that had retrospective effect—  

Senator ROBERTS: Have you seen their request for investigation?  

Ms Volzke: No. That’s just by the dates that you’ve given me; that’s all. Absolutely, we’ll look at those, but I’m saying that they traverse that same time period.  

Mr Scully: Senator, we call it a request for assistance and, as you’ve indicated, if they’ve come in recently, they will not have got to me or Mr Ronson, who is also with us today. We will find where they are in our system and the circumstances regarding the requests for assistance.  

Senator ROBERTS: Why are complainants limited to only 1,000 characters in their request for assistance or request for investigation—that’s about 130 words—in making a complaint about unfair work practices, including wage theft in the coalmining industry; why are they limited?  

Ms Booth: I would imagine that is in order to have both a website that’s capable of being properly hosted and information capable of being absorbed. The full extent of information that’s provided to the Fair Work Ombudsman is not contained in those characters. That’s a commencement process and, thereafter, individuals who have made those communications with us would be spoken to.  

Senator ROBERTS: Why does the Fair Work Ombudsman refuse to accept complaints that are more detailed than those that can fit within a 1,000-character limit? 

Ms Booth: The area of technology is in Mr Campbell‘s purview. This will be entirely a technological matter, I’m thinking. Mr Campbell, are you able to say anything about the number of characters in our communications form?  

Mr Campbell: I’m going to have to guess a little bit in my answer and I don’t like to do that in this forum. It depends on the channel through which the people you speak of have sought to engage with us. In certain channels we do have limited fields for the collection of information from customers. Normally, that goes to complaints through our anonymous inquiry facility. But through ‘my account’, where we would normally access most of our requests for assistance, there would be the ability to capture more information, and that’s normally because the person has given us all their information that we’ve sought and they’re seeking to provide us with further information to assist us in making an assessment of their RFA, or request for assistance. I’m not quite sure that they’re limited from writing more than the characters that you’ve said.  

Senator ROBERTS: My understanding is that they tried to make an application but couldn’t get beyond the bureaucratic brick wall of that 1,000-character limit, which is roughly 130 words. Why was there no email address on your website, other than one that the submitters are told relates to freedom of information requests? When they couldn’t get their material under the 130-word limit, they then looked for an email, and the only one they could find they used, and were told that it relates to freedom of information requests.  

Ms Booth: Most of our requests for assistance come through a telephone contact. Of course, our 13-13-94 number gives no limit to the amount of information that can be conveyed, so that option perhaps in this case was not one that was undertaken by those people.  

Senator ROBERTS: These are pretty intelligent people. I’m surprised that they did not see it.  

Mr Campbell: I don’t know. I don’t want to speak to that, because I’d be making a judgement about their intelligence, and I can’t do that from here. But our request for assistance online lodgement capability seeks to authenticate the person who’s contacting us, so we know who they are and who we’re dealing with, and information about their circumstances, and that would include seeking them to detail their concerns to us. It’s not my recollection that’s limited. I’m happy to go and have a look because it would seem at odds with how we’re trying to collect information in the authenticated space. As I offered at the start, there is a facility for people to provide us with anonymous information about a workplace or circumstance, and that might have a limited character overlay on top of it, which might be where they’ve started, as compared to seeking to raise with us a request for assistance using online lodgement.  

Senator ROBERTS: With, say, a document with 20, 30 or 40 pages of evidence—these people have a lot of evidence—even just taking a small slice of it, they were wondering initially how they would get that past that bureaucratic brick wall.  

Mr Campbell: I don’t think there is a bureaucratic brick wall.  

Senator ROBERTS: That’s what they tell me.  

Mr Campbell: Perhaps I could take it on notice and confirm it for you.  

Senator ROBERTS: Okay.  

Ms Booth: As Fair Work Ombudsman, could I reassure the committee that there is no bureaucratic brick wall. If anything, the channels of communication into the Fair Work Ombudsman that I’ve observed, since I have been Fair Work Ombudsman, are many and varied, and there is no constraint on the amount of information that can be provided.  

Senator ROBERTS: So you would refute any suggestion that the Fair Work Ombudsman is trying to make it impossible for workers to provide evidence?  

Ms Booth: Absolutely, I would refute that.  

Senator ROBERTS: Could we have a list, on notice, from Mr Campbell?  

Mr Campbell: I’ll take that on notice and come back—  

Senator ROBERTS: Yes, a list of all the optional ways of getting through and maybe some assessment of whether it’s easy to identify those options; that is, whether it would be easy to find, for someone who lands on your website?  

Mr Campbell: Absolutely.  

Senator ROBERTS: How should workers submit a complaint? How do workers communicate with you, and how do workers get through that 1,000-character limit? What are the options?  

Ms Booth: Make a phone call. Ring 131394 and speak for as long as you like to a Fair Work adviser. 

Senator ROBERTS: From there, you would say, ‘Send us the evidence’?  

Mr Campbell: It would be allocated to an officer for assessment and determination about what further assistance we might be able to add or offer. If the circumstance, as depicted to us, warrants an intervention by an inspector, for example, it might be allocated to an inspector, who would then consider it, and they might seek further particulars from the customer or the complainant, depending on the circumstances.  

Senator ROBERTS: Would the Fair Work Ombudsman consider creating an email account where complainants, regarding wage theft, can lodge their complaints in full, with all documentation required to prove their complaint?  

Mr Campbell: No.  

Senator ROBERTS: Why not?  

Mr Campbell: Because it’s an inefficient way to deal with disputes from customers.  

Senator ROBERTS: Why is it inefficient?  

Mr Campbell: Because they are unauthenticated contacts from a customer. Anyone can create an email address. We seek to create a picture of the customer so that we can determine how we can best assess them: understand award coverage, understand which sections of the Fair Work Act might be triggered by their circumstances, make a determination on their level or ability to self-resolve their workplace dispute and find out whether they’re still employed, the business that they work for and the customer details. We have a portal which is used daily and regularly, and very successfully, by thousands of individuals every year. It is consistent with every other regulator in the Commonwealth and probably at the state level, in terms of how they deal with volume complaints from their ‘regulator’ community.  

Senator ROBERTS: Is the Fair Work Ombudsman aware that the Senate has directed Minister Burke to investigate the multimillion-dollar wage theft—we estimate it to be over $1 billion in total—conducted against labour hire coalminers, where their 25 per cent casual loading was not paid and an average of more than $30,000 person per year was not paid?  

Ms Booth: I am aware that a resolution of that nature was passed in the Senate, yes.  

Senator ROBERTS: Are you aware that some miners have been underpaid $40,000 a year, person, for up to a decade?  

Ms Booth: I have no comment on that.  

Senator ROBERTS: The number of miners, we believe, is around 5,000 or more?  

Ms Booth: No comment on that.  

Senator ROBERTS: More than $1 billion in wages stolen, it’s estimated?  

Ms Booth: Again, no comment.  

Senator ROBERTS: Including an Australian subsidiary of the world’s largest labour hire company, Japan’s Recruit Holdings?  

Ms Booth: These are matters that you’re asserting; I have no ability to verify them here, so I will not comment on them.  

Senator ROBERTS: On behalf of some of the world’s largest multinational global mining companies?  

Ms Booth: As indicated.  

Senator ROBERTS: In collusion with the CFMEU, which enabled theft by illegal enterprise agreements, which the Fair Work Commission approved?  

Ms Booth: Again, no comment.  

Senator ROBERTS: Is the Fair Work Ombudsman aware that the CFMEU Mining and Energy Union has recently admitted publicly, in circulars, that wage theft has occurred?  

Ms Booth: I’m not aware of those alleged admissions in circulars, no.  

Senator ROBERTS: They denied it for many years, when I was raising these issues. Now they’re admitting it publicly, in email newsletter form. They’re basically admitting it, and vindicating me in what I’ve been saying for five years, including the amounts owed. Why has the CFMEU Mining and Energy Union not applied for backpay?  

Ms Booth: I can’t read the mind of the CFMEU.  

Senator ROBERTS: Has it applied to the Fair Work Ombudsman for a ruling? 

Ms Booth: A ruling?  

Senator ROBERTS: An investigation. Has it made a complaint to the Fair Work Ombudsman about underpayment?  

Ms Booth: Not that I’m aware of. Mr Scully, as you previously heard, is responsible for that area.  

Senator ROBERTS: It seems not; I would conclude not. That means they certainly haven’t applied for backpay. Perhaps mine workers are now joining the Independent Workers Union of Australia in Central Queensland and the Hunter Valley because they’re finding that they can make applications for backpay.  

Ms Booth: Again, I have no knowledge of that.  

Senator ROBERTS: Will the Fair Work Ombudsman, along with the Fair Work Commission, accept some responsibility for the massive stolen wage bill, an issue that I’ve been raising for almost five years?  

Ms Volzke: We’re aware that the motion has been made and we understand that, in the evidence that was given yesterday, the department is considering their advice to the minister on that, and we will await that as well.  

Senator ROBERTS: I’ve been dismayed—I won’t raise the names—that, on a number of occasions, the Fair Work Ombudsman has relied in Senate estimates hearings on documents that I have argued and documented as being fraudulent, as has Simon Turner, and I showed those documents to be fraudulent. Are you aware of that, Ms Booth?  

Ms Booth: I’m aware of your assertions,  

Senator ROBERTS. My observation is that the Fair Work Ombudsman assesses a request for assistance comparing workers’ actual payments received with their lawful entitlements under their work instruments. That is our obligation and that is what we do.  

Ms Volzke: We provided a formal letter in relation to one of those complainants, under a letterhead dated 23 July 2023, about those allegations of fraudulent evidence.  

Senator ROBERTS: My understanding of that letter is that it ignores documented evidence and decisions from other federal government agencies saying that the document that the Fair Work Ombudsman officers relied upon was not correct and was fraudulent; is that the same letter?  

Ms Volzke: It is. It is, I think, about a six-page response, so I would consider it to be very thorough. The outcome of our investigation into that is included in that letter.  

Senator ROBERTS: I don’t agree that something is thorough or accurate just because it’s lengthy.  

Ms Volzke: I would say that, in relation to the investigations that we have undertaken into a couple of individuals, which I’m sure you’re well aware of, I feel very confident that the Fair Work Ombudsman has undertaken an extremely comprehensive investigation in relation to all of those matters. I feel very confident in the outcomes. In terms of what the law is and what the legal outcome is, I feel very confident in those outcomes.  

Senator ROBERTS: Could we have a copy of that letter dated 23 July 2023, please? That doesn’t have to be right here and now, but could we have that on notice.  

Ms Volzke: Yes, of course.  

Senator ROBERTS: Will the Fair Work Ombudsman continue to deny that the miners have been the victims of a massive fraud that labour hire companies have perpetrated?  

Ms Volzke: Again, as the regulator, it’s our role to apply the law as it currently stands, including when an agreement has been approved as passing the BOOT by the Fair Work Commission. We apply that agreement. That’s exactly what we’ve done in relation to those investigations where there has been an agreement that has applied.  

Senator ROBERTS: What about if the enterprise agreement is illegal?  

Ms Volzke: I don’t think we should speculate around hypotheticals. We know of various cases, and I think in previous estimates we’ve spoken about them: the Warren case, One Key and another more recent one. The reality is that the legal effect of the Black Coal Mining Industry Award not providing for casual employment in operational roles has not been comprehensively argued or subject to submissions by any party, so there has not been an authoritative determination on that issue.  

Ms Booth: I think it really is very important to understand the distinction between the role of the Fair Work Ombudsman and the role of the Fair Work Commission. Whatever we would like it to be is not in our purview; we look at what is, in terms of the law. We look at the law as it stands and not at how the law came into being or what it ought to be in the future. 

Senator ROBERTS: That’s fine. We’re seeing what seems to me to be—and I’ve been advised that this is correct—criminal involvement of some CFMEU or Mining and Energy Union bosses who facilitate, enable and approve the wage theft through illegal enterprise agreements. I’ve asked Mr Campbell for the process that people can follow for various ways of applying. Could you also advise me of any ways that the Fair Work Ombudsman could consider to make the process easier. Maybe think about the perspective of someone making a complaint or a request, including what they would confront when they log on to your website and how that process could be made easier.  

Mr Campbell: I’ve taken the questions on notice and I’ve undertaken to get you the information. I don’t want to open up the dialogue again; I’ve said yes, so I will do it. 

/by

No Progress on Wage Theft

,

I asked officials from the Department of Employment and Workplace Relations (DEWR) if they were aware of the second reading amendment, which requires the government to investigate wage theft in the Hunter Valley. This issue could potentially involve up to $1 billion, impacting around 5,000 miners with losses estimated at $40,000 per person per year.

The officials confirmed their awareness but were unable to specify when the minister had been informed or if any plans or discussions had been initiated to advance the investigation.

Transcript

Senator ROBERTS: My first set of questions relates to a recent Senate second reading motion to a Fair Work Act bill. The motion requires the government to conduct an investigation into massive wage theft occurring in the coalmining industry. I will read the motion. The part that is relevant states:  

but the Senate:  

(b) requires the Government to investigate claims that casual miners working under enterprise agreements in the black coal mining industry are, and have been, underpaid; and  

(c) if underpayments are found to have occurred, facilitate the reimbursement of the underpayments;  

Ms Yanchenko: Thanks. We’re certainly aware of that motion.  

Senator ROBERTS: This is Australia’s largest wage theft case, totalling possibly over $1 billion and involving thefts of up to $40,000 per year per miner, stealing from 5,000 or more coalminers. When was the Senate’s second reading amendment to your government’s latest Fair Work Act amendment bill conveyed to the minister?  

Mr Manning: I am not sure, in the sense that we wouldn’t necessarily have conveyed it to the minister.  

Ms Yanchenko: We were watching along in real time.  

Senator ROBERTS: Did you convey that to the minister?  

Ms Yanchenko: I didn’t personally, no.  

Senator ROBERTS: Is it possible to find out when the minister—  

Mr Manning: When he first became aware of it?  

Senator ROBERTS: Yes.  

Mr Manning: We will have to take that on notice.  

Senator ROBERTS: That is fine. I don’t expect you to know everything; most things, but not everything. I take it then that no discussions have been held between the minister and the department?  

Mr Manning: We are still thinking through our advice to the minister; so, no, not yet.  

Senator ROBERTS: Has the department received or made any instructions?  

Mr Manning: We haven’t yet given advice or a submission to the minister about the motion. We are still working through it.  

Senator ROBERTS: So you haven’t made any instructions to him or given him any advice?  

Mr Manning: Not as yet.  

Senator ROBERTS: Has Minister Burke discussed with you the nature of the investigation the Senate required him to make into wage theft involving Central Queensland and Hunter Valley miners?  

Mr Manning: No, not yet.  

Senator ROBERTS: Have any of your staff raised it with you?  

Ms Wettinger: At this stage we haven’t discussed the matter with any of the minister’s staff, no.  

Senator ROBERTS: Who do you expect will have a role in the investigation?  

Mr Manning: It is too early to say. There is a long history to the matter—  

Senator ROBERTS: A very long history.  

Mr Manning: So that’s what we are considering in terms of getting ready for those discussions and that advice to the minister.  

Senator ROBERTS: Minister, what would you expect of a fair and independent investigation?  

Senator Watt: That it be fair and independent.  

Senator ROBERTS: What would characterise a fair and independent investigation?  

Senator Watt: I think everyone understands what those concepts mean. I know you have an interest in the conditions of coalminers. Have you caught up on the good news about the first decision or agreement resulting from our ‘Closing Loopholes’ laws?  

Senator ROBERTS: I am aware that there is an agreement in application.  

Senator Watt: I think there might even be a couple, actually.  

Senator ROBERTS: I am aware of two.  

Senator Watt: It is good news that we are seeing coalminers receive what they are entitled to as a result of our legislation. I don’t think you voted for that legislation, Senator.  

Senator ROBERTS: We’ll hear more about that. I have already told you why publicly, Senator Watt.  

Senator Watt: It is delivering more money to coalminers.  

Senator ROBERTS: I’ll have more to ask you about that tomorrow, with glee. 

Senator Watt: Sure. 

/by

Government to Investigate Biggest Wage Theft in the Coal Sector

Finally! After 5 plus years of calling out dodgy CFMEU union bosses, Labor and the Fair Work Commission, the Senate has backed my call for an investigation into the biggest wage theft in the coal sector.

The industrial relations community was staggered last week when Australia’s senators voting on a show of voices – no one asked for a formal vote – decided to demand that the government investigate what is potentially the nation’s biggest wage underpayment scandal.

If shown to be correct, the alleged underpayment of New South Wales and Queensland coal miners will involve repayment of more than $100 million.

Read more here: Australia’s biggest underpayment case may uncover a few surprises | The Australian

When I first disclosed this scandal, I called on ALP politicians and other supporters of the CFMEU and Fair Work Commission in the parliament to set aside their links and think of what happened to the coal miners. And that’s exactly what the senators did. Full marks. Now the Senate must make sure the government carries out their instructions in a proper manner.

Some years ago, a small group of coal miners came to me telling him that they believed they were not being paid correctly. I have worked tirelessly to discover that thousands of NSW and Queensland coal miners had worked long hours underground for over a decade as casual labour, but did not receive the 25 per cent “casual” premium workers all over Australia receive.

Motion

Fair-Work-Amendment-Bill-2024_RobertsDownload
/1 Comment/by

Casual Wage Theft Under Fair Work Commission’s Watch

,

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. 

Senator ROBERTS: Thank you, Chair. 

/by

Encouraging Competition Among Unions Will Protect Workers

,

I spoke in support of Senator Lambie’s Fair Work (Registered Organisations) Amendment (Protecting Vulnerable Workers) Bill 2024. For context, I provided the senate chamber with the facts on Australia’s largest wage theft. This casual labour rort stole on average around $33,000 per casual coal miner per year in central Queensland and the Hunter Valley through Chandler Macleod Group, a subsidiary of a foreign multinational, Recruit Holdings — one of the world’s largest labour hire companies.

How did this happen? For a decade, CFMEU bosses have betrayed the coal miners they are supposed to protect. The Fair Work Commission has unfairly betrayed workers by approving dodgy Enterprise Agreements. Meanwhile, the Fair Work Ombudsman, the last line of defence for the workers, has sat on its hands and refused to act. Consultants and industry lawyers, some with over 40 years of experience in industrial relations prepared a report looking into this casual wage theft. They were stunned by what they’ve now confirmed is happening across our coal industry.

The current Queensland government is trying to prevent the development of the new Red Union that is now making inroads into the previous membership of failed mainstream unions like the QNU and QPU that have failed to adequately represent their members in disputes with employers. Membership has passed 18,000 and is rapidly growing. What’s at stake here is the issue of freedom of choice. There are thousands of women working within the Textile Clothing Footware sector which is currently part of the CFMEU. These women need to be able to choose who they wish to be represented by and they should be able to make those choices by secret ballot. This is necessary to ensure that intimidation by certain union leader thugs is kept to a minimum.

I support this Bill as it is good legislation, supports vulnerable women and is a further step in recognising the rights to freedom of choice in determining an important issue of autonomy for women. The ability of these women to choose to demerge from the CFMEU must be confirmed.

Transcript

Thousands of casual miners working in central Queensland or the Hunter Valley are each owed, on average, for wage theft, backpay of around $33,000 per year for every year of service. That’s $33,000 per year. If you’re a casual, you’re likely to be owed an estimated $33,000 per year as a victim of Australia’s largest wage theft. How? It’s due to the CFMEU union bosses betraying and controlling workers, because the CFMEU was the sole union in coal mining production. When entities lack competition, they tend to behave with impunity due to a lack of accountability. They can do whatever they bloody well want. 

We support Senator Lambie’s Fair Work (Registered Organisations) Amendment (Protecting Vulnerable Workers) Bill 2024 because it encourages competition for the unions and gives freedom of choice to workers, and it portrays fairness. I’ll move to Senator Lambie’s excellent bill after closing on the largest wage theft scam, because that illustrates, yet again, the importance of Senator Lambie’s bill to protect workers from unaccountable union bosses. 

A team of experienced workplace lawyers, consultants and coalminers reviewed and analysed five significant labour hire coalmining enterprise agreements. The CFMEU were involved in, were a party to, or signed all five agreements. This is the report of these experts. The Fair Work Commission approved all five agreements. The enterprise agreements all underpay the award. For example, for the CoreStaff 2018 enterprise agreement, the yearly underpayment was estimated at $22,623. It gets worse. For the FES 2018 agreement, the yearly underpayment was estimated at $27,563. For the WorkPac 2019 agreement, the yearly underpayment was estimated at $33,555. For the Chandler MacLeod 2020 agreement, the yearly underpayment was estimated $39,341. For the Tesa Group 2022 agreement, the yearly underpayment was estimated at $40,645. 

It’s all due to collusion between the CFMEU, labour hire companies and the Fair Work Commission. The CFMEU signed and approved all. The CFMEU agreed in writing—we’ve seen the letter—to not pursue complaints that workers raised. The Chandler MacLeod group, one of the parties to the enterprise agreement, is a subsidiary of the world’s largest labour hire company, Recruit Holdings—a foreign, multinational. How did this happen? For a decade, CFMEU union bosses have betrayed coalminers. The Fair Work Commission has betrayed workers in approving enterprise agreements paying far less than the award, and the Fair Work Ombudsman turned a blind eye to it all and refused to get involved. The CFMEU’s mining division, the Fair Work Commission and some large labour hire companies have colluded to screw workers using enterprise agreements that are unlawful. 

As I said, we commissioned an experienced team to investigate Australia’s largest wage theft case involving thousands of miners across the industry for up to a decade. They were stunned at the brazen collusion between the CFMEU union bosses, employers, Fair Work Commission and Fair Work Ombudsman. Some of these consultants and lawyers have over 40 years of experience in industrial relations and were stunned with what they confirmed was happening across our coal industry. The workers’ supposed protectors, the CFMEU union bosses and the government’s Fair Work Commission and Fair Work Ombudsman, have cruelly betrayed workers en masse. I’ve written to the current and former members for the Hunter in federal parliament, to CFMEU union bosses and to Minister Burke. All have done nothing. They buried the issue to protect union bosses. Let’s move to Senator Lambie’s bill. I support Senator Lambie’s bill. The issue she raises is symptomatic of many large unions and the decline of the union movement under unaccountable union bosses, who are tarnishing the movement. Labor’s recent legislation giving enormous power to union bosses will eventually hurt the union movement and unions overall because it entrenches the huge monopoly power of union bosses and removes accountability. The union movement will crumble because of that lack of accountability. Workers will abandon it, as they already are. 

An essential freedom of the Australian workplace scene should be the freedom for workers to choose who they want to represent their interests through a choice as to the union they want to join. There are thousands of women in the textile, clothing and footwear union, currently part of the CFMEU. Many of those women have expressed dissatisfaction with the representation the CFMEU provides them through their membership. Unfortunately, many of these members, who often have limited English language proficiency, are handicapped by having experienced exploitation, underpayment, intimidation and poor working conditions. The Labor government, with the Greens, have to date voted to prevent these women from exercising their right to choose to leave the CFMEU. These women are afraid of intimidation after losing their right to an anonymous vote—women afraid, in Australia, of union thugs. This is as a result of the passing of the draconian Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023. 

As a coalminer working at coalfaces, mostly underground, around Australia, I was a proud union member—back when the coalminers union was the Miners Federation, a strong, honest union. As a mine manager and, later, as an executive general manager, I dealt with many honourable union delegates who strongly spoke for, and served, their members’ interests. The union movement has a proud history, and in Australia that includes a proud history of women playing a lead role in the movement. It’s a fact, though, that as a result of some powerful union bosses who could only be described as cowardly, dishonest thugs or possibly criminals there’s been a decline in union membership and subsequent loss of union power in the Australian industrial landscape. This means a loss of membership funds and other moneys that have historically flowed to the Labor Party. Labor hates to lose campaign money. 

The TCF women do not wish to be members of the CFMEU and to be associated with an organisation that has such a poor reputation and is not providing service in exchange for union fees. In recent years, the CFMEU have been caught selling out their members to benefit large, multinational labour hire firms and enrich the CFMEU, at the members’ expense, by unprecedented wage theft. 

The current Queensland government is trying to prevent the development of the new Red Union, which is making inroads into the previous membership of failed mainstream unions, like the Queensland Nurses and Midwives Union and the Queensland Teachers Union, which have failed to adequately protect and represent their members in disputes with employers. Red Union membership is now almost 19,000 and has rapidly grown in the Nurses Professional Association of Queensland and the Teachers Professional Association, and now it’s growing in every state around our country. Teachers and nurses, not union bosses, lead the new and rapidly growing union. Fees are around half those of the Queensland Teachers Union and the Queensland Nurses and Midwives Union, which provide inferior service and donate membership funds to the Queensland Labor machine. That’s why the Queensland Labor government has stepped in with an attempt to ban the Red Union—to protect the Queensland Teachers Union and the Queensland Nurses and Midwives Union and the millions of dollars flowing to the Labor machine’s election campaign. So we have the Queensland Labor government trying to ban the formation of a new union because it nobbles them. Queensland union bosses publicly and openly showed their power in appointing the new Premier of Queensland. We saw it in Queensland: union bosses saying who would be the next Premier. It’s Steven Miles. 

What’s at issue here is freedom of choice. These women need to be able to choose who they wish to represent them and should be able to make those choices in a secret ballot. This is necessary to ensure that intimidation from thugs is kept to a minimum. I support this bill and I commend Senator Lambie for it. It’s solid, effective legislation. It supports vulnerable women and is a further step both in recognising the right to freedom of choice and in determining an important issue of autonomy for women and for all workers. The ability of these women to choose to demerge from the CFMEU must be confirmed. Union membership must be voluntary and there must be freedom of choice as to who someone’s representative should be. That is for the benefit of the union movement because, with choice comes competition and then accountability. 

We support this bill that gives women and workers rights that union bosses have stolen. We call for a public and parliamentary discussion on restoring industrial justice and basic human rights and freedom of choice to workers. We applaud Senator Lambie for her bill as another step towards freeing workers from powerful union bosses. 

/3 Comments/by

The Decade-Long Scam Robbing Some of Our Miners

,

By Robert Gottliebsen | The Australian

Before being elected to the Senate, Malcolm Roberts was a coal miner, following in the tradition of Australia’s sixth Prime Minister Joseph Cook.

Some five years ago, a small group of coal miners came to Roberts telling him they believed they were not being paid correctly — but they couldn’t work out what was wrong.

At the time, Roberts had no idea he was on the edge of uncovering what he calls a “scam” which has the potential to be Australia’s largest ever wage underpayment scheme.

Read more of the article here: Robert Gottliebsen: Miners underpaid by strange legislative loophole | The Australian

See all material on this issue

Casual Coal Wage Theft

Related Parliamentary Speeches

Labor are Not the Party of the Workers
Exposing the Permanent-Casual Rort
/2 Comments/by