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Exposing the Permanent-Casual Rort

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I detailed one of the most outrageous wage thefts in the country last night in the Senate. Despite having all of this information, the Labor party continues to cover it up, voting down my amendment that would give back-pay to victims.

Casual coal mine workers are being individually underpaid up to $33,000 per year under union-negotiated deals. Minister Tony Burke is aware of this yet he does nothing about it.

The so-called ‘Loopholes’ Bill will only protect the union bosses at the Construction, Forestry and Maritime Employees Union (CFMEU) and give them more power. It will protect labour-hire companies including the big, foreign-owned ones, and it will protect the government’s Fair Work Commission who is failing Australian workers.

The only loopholes I see are the ones protecting big business and the government and there’s nothing ‘fair’ about it.

Labor has abandoned the workers. One Nation will not stop fighting for ripped off casual coal miners to receive what they’re owed.

Transcript (click here)

As a servant to the people of Queensland and Australia, I rise to speak on the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023. In doing that, I will illustrate why this bill is a sham that does not protect workers like the name implies.

Nothing in this bill will fix the absolute scandal that One Nation has uncovered. The Labor government is giving more power to union bosses, which is putting the fox in charge of the henhouse. As I will explain, union bosses are the ones that have been ripping off workers, and the government regulator, the Fair Work Commission, has endorsed it. I challenge anyone to explain to me in detail how the closing loopholes No. 2 bill will fix the cases I’m about to explain.

An independent report details the largest wage theft scandal Australia has ever seen. Coalmine workers have each had tens of thousands of dollars stolen from them every year. Labour hire companies, union bosses and governments have been covering it up for a decade or more. The culprits are labour hire companies supplying casual workers to some Central Queensland and Hunter Valley coalmines. The CFMEU—the Construction, Forestry, Mining and Energy Union—enabled and supported the wage theft. The Fair Work Commission signed off and endorsed the enterprise agreements, enabling the wage theft.

One Nation commissioned an independent analysis which shows that hardworking, casual coalminers are each being shafted on 2023 pay rates by an average of around $33,000 every year. This is systemic wage theft resulting from collusion between labour hire companies—including major foreign multinationals—the CFMEU and the Fair Work Commission. My grave and disturbing allegations are based on solid facts and hard data.

A quirk in the Black Coal Mining Industry Award makes this scam possible. Under that award it’s illegal for mine employers to have casual employees. Yet, if casuals were legal, everyone in Australia knows that the employer would have to pay casuals 25 per cent more than the award full-time rate, as a 25 per cent casual loading for loss of basic entitlements like leave, sick leave and others. While the award prohibits casuals, labour hire companies—with the CFMEU—created enterprise agreements to employ casuals without any loading. The CFMEU negotiated, approved or sought to become a party to these agreements.

The closing loopholes No. 2 bill claims that all of these problems in industrial relations can be solved if we get the union bosses more involved and give them more power. What is the use of giving the CFMEU bosses more power when they negotiated and approved agreements that have ripped off casual workers for more than a decade? The Fair Work Commission should be policing and rejecting these agreements, yet it approved them. The rates under the agreements were less than the award with a 25 per cent loading. This means that the enterprise agreements are paying much less than what should be paid under the award if it allowed casuals. Some casuals were paid even less than the full-time award through technical legal trickery. All parties claim these agreements are legal, yet everyone knows a casual gets a 25 per cent loading on the hourly rate of a full-time worker. Paying them any less is wage theft. It appears that, once the Fair Work Commission approves an enterprise agreement that pays less than what should be paid under the award, the underpayment then becomes legal.

Yet One Nation is awake. All Australians deserve honest pay for an honest day’s work. We have spent nearly five years investigating wage theft. Nothing in this bill will fix up the absolute scandal One Nation has uncovered. Tonight I launch our major report detailing the extent of the wage theft scam. In 2019, after the CFMEU brushed off many years of casual coalminers’ complaints, the miners brought their underpayment complaints to us in One Nation. We took action. I’ve been holding the Fair Work Commission accountable for nearly five years. We asked the Fair Work Commission to provide their copy of the better-off-overall test—the BOOT—they’ve done on relevant enterprise agreements. The BOOT is supposed to be a safety net that rejects underpaying agreements and protects workers from underpayment. Yet the commission handed us no documents. There are no spreadsheets, no tables comparing conditions and benefits and no real assurance that they’d properly weighed it up. The response was along the lines of, ‘Trust us; it passes.’

The CFMEU has been signing off on dodgy agreements for more than a decade, and the Fair Work Commission is either asleep at the wheel or complicit. Either way, both enable or are responsible for massive wage theft. Last year we raised this issue with the Fair Work Ombudsman and with Minister Burke and his department. Responses from all three have been like that of the Fair Work Commission. ‘Trust us,’ they say, yet they provide no hard evidence.

One Nation then commissioned independent research, with the results in the report. The first part presents the facts of coalmining casual work patterns. It marries those patterns against what the award would require if casual employment were possible under the award. The second part exposes how this scam has been allowed to continue in breach of proper, commonsense application of the law. The report details that coalminers are required to work any time, 24 hours a day, seven days a week, close to a 44-hour week—Saturdays, Sundays, public holidays, days and nights. It’s long, hard work that can be dangerous. The report shows that, according to the award, for example, a full-time mine worker doing 12-hour shifts will earn about $120,849 per year or $53.84 an hour. Taking what a full-time mine worker should earn under the award and adding a casual loading, a casual mine worker doing the same hours should earn $151,061 a year, or a flat rate of $66.40 an hour, regardless of hours worked.

The independent analysis One Nation commissioned looked in detail at mine workers’ hourly rates under the five most common enterprise agreements covering casuals in coalmining. We found that none of the enterprise agreements were paying casual workers anywhere near the $66.40 an hour they should be receiving. Some were even paying casuals less than the hourly rate a full-time worker gets under the award. The fact that a casual worker could be paid less than the hourly rate of a full-time worker under some of the agreements should have set of alarm bells at the Fair Work Commission. Every single enterprise agreement—all five—has the CFMEU’s fingerprints on it, and the Fair Work Commission signed off every single agreement.

The research assessed five of the major enterprise agreements in consultation with independent analysis, lawyers and coalminers. Let’s go through them. The CoreStaff NSW Black Coal Enterprise Agreement 2018 pays casual mine workers $56.16 an hour, much less than the $66.40 a casual should be paid. The CFMEU is recognised under the agreement. The Fair Work Commission approved the agreement. The underpayment of each casual coalminer each year is $22,623. For FES, in Rockhampton, at a hearing of the inquiry into Labor’s closing loopholes bill we received evidence that the FES agreement 2018 pays casual employee Dwayne Arnold $54 an hour, well short of the $66.40 a casual should be paid. This agreement was made with the CFMEU. The Fair Work Commission signed off on the agreement. The underpayment of each casual coalminer each year is $27,563.

The WorkPac Coal Mining Agreement 2019 provides four different pay rates for a casual mine worker: between $42.99 and $51.38 an hour, depending on the day—all less than the hourly rate of a permanent worker. Calculations use the highest weekend rate even though this is more than what an average mine worker will get. It’s far short of the $66.40 that should be paid. The CFMEU negotiated and approved the agreement. The Fair Work Commission signed it. The yearly underpayment for a casual coalminer is $33,555. The Chandler Macleod agreement in 2020 pays a casual $48.85 an hour, far below the $66.40 that should be paid and less than the hourly rate of a permanent worker on the award. The CFMEU was a bargaining representative for the 2015 agreement, supported its approval and is a party to the 2020 agreement. The Fair Work Commission approved the agreement. The yearly underpayment per mine worker is $39,341.

Let’s go to the TESA group. The agreement in 2022 pays a casual $48.28 an hour, far below the $66.40 that should be paid and less than the hourly rate of a permanent worker on the award. The CFMEU is a party to the agreement. The Fair Work Commission approved it. The yearly underpayment per worker is $40,645. That’s almost $41,000 per year underpaid. Across these agreements a casual mineworker loses on average almost $33,000 every year compared to what they should be paid on the standard casual loading on the award rate.

One Nation challenges each of the parties in this scam. To the labour hire companies, the CFMEU union bosses and the Fair Work Commission, One Nation says: prove to us that our report is wrong. Don’t give us the excuse of the legal construct that you have created to enable and endorse the wage theft. Prove to us that the payments to the coal workers is higher than would be paid if the award allowed casual workers. Prove to us casuals are paid a loading. You will fail. Casuals are not paid a casual loading. It’s wage theft. It’s masterful wage theft. It’s hideous wage theft.

There are potentially tens of thousands of victim mineworkers in the history of dodgy agreements we can track over a decade. The total wage theft is massive. The failure of the Fair Work Commission and the Fair Work Ombudsman is shocking institutional failure. The fact they covered it up after we informed them is a disgraceful failure. It calls into question the entire structure, promise and integrity of the system in Australia that is supposed to protect Australian workers from underpayment, from wage theft.

Nothing in this bill will fix the absolute scandal One Nation has uncovered. Minister Burke’s bill aims to hide those responsible. Failure of the CFMEU bosses is even more obvious. We have a signed letter from the Hunter Valley CFMEU and labour hire company Chandler Macleod. In that letter, the CFMEU promises to never take action against Chandler Macleod for any breaches of worker entitlements. Our report details that the CFMEU has had commercial business dealings in the coal sector for decades. The CFMEU pretends to be a union. In fact, it is one of the employers, the bosses. It started labour hire casuals in the Hunter. It employed labour hire casuals. It started it. This theft must stop. CFMEU union bosses must be held to account for failing to represent workers, for betraying workers. The Fair Work Commission must be held to account for failing to stop dodgy enterprise agreements.

My amendment that I will be moving in the committee of the whole will ensure that those workers underpaid in the black coal industry will receive their fair pay entitlements in full. It adds transparency missing from the Fair Work Act and will ensure that the Fair Work Commission does its job, while the overprescriptive provisions of the Fair Work Act hide or ignore basic protections for workers. The Fair Work Commission has previously admitted that the Fair Work Act does not provide sufficient oversight of the Fair Work Commission when it fails to do its job.

One thrust of Minister Burke’s appalling bill is to cover up and bury Australia’s largest ever wage theft. Thousands of coalminers have each been underpaid on average around $33,000 per year because their union bosses did a shady deal with their employer. I have detailed proof of this. My amendment will put an end to these dodgy deals and enterprise agreements that pay much less than the award and it will ensure workers are reimbursed their stolen wages. Nothing in the closing loopholes No. 2 bill will hold the unions or the Fair Work Commission to account. Instead, Anthony Albanese’s solution is to give union bosses even more power with no accountability and no scrutiny. With what I have detailed in this speech, it’s obvious that that would be simply putting the fox in charge of the henhouse.

The changes contained in the so-called closing loopholes No. 2 bill will be far-reaching and have devastating impacts on the way almost every operation in Australia is forced to do business. We have had countless meetings with unions, small businesses, employees, workers, industry associations, law groups and more. The overarching message that all of them could agree with me on was that the Fair Work Act is simply too complicated for any worker or business to understand. The act is already a bulky 1,341 pages. It’s a sledgehammer that’s killing our economy. It’s so big it has to be split into three volumes so they can print it. It started 15 years ago as just a 652-page act. In the last five years alone, the Fair Work Act has increased by over 300 pages. What hope has someone who runs a bakery? What hope has an individual worker? The only ones who can keep up with all of the legislation changes and the complicated legal sections and find the loopholes are big corporations and big union bosses. They make the loopholes. I call them the industrial relations club. It includes big corporations, industrial relations consultants, lawyers and big union bosses.

Big corporations love a complex Fair Work Act because it stops small businesses who can’t figure out all the red tape from competing with them. Industrial relations lawyers love it because it keeps them in a job. Union bosses love it because it forces them into the conversation, whether the employees want them there or not. That’s why you hear so much support for this bill from the big money players. Genuine small-business owners who are too busy trying to run small operations and to pay their staff don’t have time to write parliamentary submissions or understand some amendments that may come into law. If this bill is passed, the 1,341-page Fair Work Act won’t get smaller and easier to understand. It will make the act longer, more complex, more prescriptive—the opposite of everything we need to fix industrial relations in this country. As a servant to the people of Queensland and Australia, I know only One Nation will fight to make sure workers receive their entitlements, and my amendment will do exactly that. We don’t need a so-called loopholes bill; we need enforcement of the award.

See all related material

Casual Coal Wage Theft

Related Parliamentary Speech and News Article

Labor are Not the Party of the Workers
The Decade-Long Scam Robbing Some of Our Miners
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ABC Interview: Union bosses neck deep in casual exploitation – Closing loopholes

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The union bosses claim that Labor’s latest Industrial Relations legislation will “close the loophole” of casual workers being paid less than permanents, especially in the mining sector.

You can’t step on site without a union enterprise bargaining agreement, so how are casual workers getting ripped off when they’re working under union negotiated agreements?

The answer is that some union bosses are getting kickbacks from labour hire companies in exchange for passing through dodgy agreements that allow casuals to be exploited.

The Fair Work Commission is meant to stop this, but they’re either asleep at the wheel or deliberately not doing their job.

Transcript

1 November 2023

Presenter

The Fair Work Legislation Amendment, known as the, “Closing Loopholes Bill,” held its hearings in Rockhampton this week. Announced by the federal government in September, the Closing Loopholes Bill aims to criminalise wage theft, introduce minimum standards for workers in the gig economy, close the forced permanent casual worker loophole, and close the labour hire loophole.

It’s all about that thing that we’ve been talking about for yonks, and that is, if you’re doing the same job as someone else, you should get the same pay. One Nation Senator Malcolm Roberts is in Rockhampton for the hearings, and he’s been raising the issue of the exploitation of the permanent casual workers in CQ miners for years. Frazer Pearce asked him if the proposed legislation would provide a better outcome for miners.

Malcolm Roberts

Look, my position on this Fair Work Act for a start, the current act as it stands, without Labor’s latest draft amendments, is 1,200 pages long, and they’re wanting to add another 800 pages. It already makes the workers vulnerable because there’s no way any single worker or small business can understand it; and it helps the IR club. All regulations in that help the major groups like the major banks, the big pharma, and the Industrial Relations Club.

That’s the lawyers, the Union bosses, the Industry Associations for multinational companies. It hurts the workers. I’ve seen that firsthand in Hunter, the Hunter Valley, and in Central Queensland. The second point I’d make is that we wouldn’t be having this inquiry if it wasn’t for the fact that the cross bench has moved it to extend the opportunity, to extend the reporting date from October through to next February. We would not be here listening to the views of industry unions and individual workers, if it wasn’t for the fact that we got an extension till next February.

The Labor Party voted against that extension. They don’t want to listen to people. We voted in favour of it. It’s a very important bill. It’s a huge bill. Big ramifications for workers as well as all players in the industry. The third point I’d make is that current employment in the coal industry at least, is that illegal employment of casual, supposedly casual, in coal is only possible, only possible, with a mining and energy union endorsed enterprise agreement.

We’ve seen that. I can go into detail if you need, but this is probably not the time. But the Mining Union in the Hunter Valley in particular, and to some extent in Central Queensland, has been passing enterprise agreements that do not protect the basic rights of workers. They don’t meet the award criteria as a basic minimum. They don’t meet the National Employment standards as a basic minimum.

They have been selling out workers in the coal industry and what we need for a solution is just a simple enforcement of the Fair Work Act. Now, early on in the proceedings and dealing with these issues, I proposed the, “Same work, same pay” bill. It’s very simple bill. But what I’ve since realised in doing more work, listening to miners, is that all that’s needed is to enforce the current Fair Work Act.

Frazer Pearce

What’s the level of, do you think of exploitation against these workers? Are you saying it’s widespread or it’s just isolated?

Malcolm Roberts

Yes, it’s widespread and it varies in severity. They’re paying well below the award and as I said, the award is the basic minimum. They have not done , they’ve not done the boot test, which is the, “better off overall test”. And that’s how these dodgy agreements have got through that are shafting coal miners in Central Queensland and the Hunter Valley. They have left out basic leave entitlements.

They don’t pay casual loading. Casuals are not legally allowed to be employed in the coal industry other than in a dodgy agreement, which is unlawful in itself; because they bypass the normal processes. People are missing out on leave entitlement. People are, as a result of being hired casual, short term, are threatened with dismissal at any time, people are afraid to raise safety incidents.

There’s a culture of fear there. There’s a culture of fear at many mines from people standing up and and afraid of standing up. There’s also been a lack of reporting of injuries. New South Wales in particular, we suspect also Queensland. There’s a, basically there’s a loss in some cases of workers insurance, workers’ compensation, accident pay. These are fundamental rights.

Frazer Pearce

Is this going to be a strong platform for you in the next election? Was it a vote winner for you in the last one?

Malcolm Roberts

We don’t do things to get votes. We do things because they’re right.

Presenter

That’s One Nation Senator, Malcolm Roberts having a chat with ABC Capricornia Frazer Pearce, talking about the closing loopholes bill. The hearing’s being held in Rockhampton at the moment. It’s a couple of minutes to eight.

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Miners and Businesses from QLD and the Hunter Valley Let Down by the Fair Work Act

I’ve been raising the issue of the exploitation of miners for years. Miners and small businesses need to be heard because they are the losers in this ongoing rort. We need an extensive inquiry into it now.

The Fair Work Act is designed for the “industrial relations club,” not for workers and not for small businesses.

I’ve written twice about this issue to the previous member for the Hunter, Joel Fitzgibbon. I’ve also written and hand delivered a letter to Dan Repacholi’s office. I asked them to get involved. Both have failed to respond, yet they stand up and talk in this chamber about closing the loophole.

There is no loophole! There is only people not doing their job and letting down miners and small businesses.

When will these people find it in themselves to care, or at least do something about the fact that everyday Australians are being ripped off and the authorities are enabling it?

Transcript

Thank you, President, Senator Birmingham. For four years, I have been raising the issue of the exploitation of the permanent-casual rort in central Queensland miners and Hunter Valley miners—four years!

I have written twice to the previous member for Hunter, Joel Fitzgibbon. I have written once and hand delivered to Daniel Repacholi’s office a letter asking them to get involved. They both have not replied. They never replied. They stood up and spoke in this chamber about closing the loophole. There is no loophole. We know what the cause of this is. There is no loophole; it is people not doing their jobs.

Four years and Labor has not done a thing. They put the crow bar through the spokes to stop me. This is an insult to miners. We need an inquiry that is going to have hearings in Central Queensland and in the Hunter because these miners need to be heard.

We’ll show you where the loophole is. There’s a huge loophole but it’s not the loophole the Labor Party is talking about. This bill has an Explanatory Memorandum 520-something pages long because it’s a cover-up bill. The bill itself is up to 240 pages.

I’ve been talking in this chamber on many occasions about how the Fair Work Act is already complex, intricate and designed for the IR club, not for workers—and not for small business. This will make it far worse. We need to have a complete and thorough inquiry of it, and extensive scrutiny.

I will not be supporting the government’s amendment of the coalition’s amendment.

Miners need to be heard and small business, in particular, need to be heard because they’re the two losers from the Fair Work Act, due to its complexity and its prescriptiveness.

So I will not be supporting the Labor government’s amendment of the coalition amendment. I will support the coalition amendment.

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Fair Work and Coal LSL at Senate Estimates

The Industrial Relations system in this country is a mess. One Nation is committed to untangling the web of over-regulation.

The Fair Work Ombudsman

The Fair Work Commission Part 1
Fair Work Commission Part 2

For three years I have been raising the issue of casual coal miners being fraudulently dudded out of Long Service Leave entitlements. Finally, I was able to secure an audit into the Coal Long Service Leave Scheme from the previous government. Yet, exactly how much needs to be paid back to casual coal miners is still unclear. We’ll be following this up again at next estimates and ensuring casual workers receive the leave payments they are entitled to.

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Fair Work Commission – Award Modernisation & Small Business

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

Transcript

Senator Roberts.

[Roberts] Thank you Chair.

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

[Luby] Uh…

[Furlong] Ms. Luby

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

[Roberts] Okay.

With respect.

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

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

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

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

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

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

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

[Roberts] It overrides the Award. So, people

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

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

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

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

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

[Hehir] Thank you Senator

[O’Neill] situation.

[Hehir] O’Neill.

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

[Roberts] Oh that test is

[O’Neill] Get

[Roberts] Yeah.

[O’Neill] the reasonableness

[Hehir] I think

[O’Neill] Test. Yep, yep.

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

Yep.

[Hehir] Well I’m sure…

[O’Neill] Well it’s it’s gonna matter

[Hehir] Council, Senator Roberts.

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

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

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

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

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

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

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

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

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

[Roberts] Thank you.

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

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

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

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

Um..

[Roberts] Vote, inform themselves

[Luby] I guess

[Roberts] So they vote in an informed way.

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

[Roberts] Thank you.

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

[Roberts] Okay. Have they been

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

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

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

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

Yes.

[Roberts] Thank you.

That’s correct.

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

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

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

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

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

About 80%.

[Roberts] Thank you.

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

[Roberts] Okay.

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

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

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

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

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

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

[Roberts] Yes.

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

[Roberts] Is it progressing on schedule?

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

[Roberts] So…

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

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

[Roberts] Okay

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

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

Certainly. Senator. We agree.

[Roberts] Thank you. Thank you, Chair.

[Chair] Thank you, Senator Ro…

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