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Fair Work Ombudsman Denies Responsibility for Enterprise Agreement Validity

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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. 

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No Progress on Wage Theft

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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. 

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Letter to Dan Repacholi and Tony Burke Industrial Relations Minister – Stand up for workers

This letter was sent on 27 July 2022. As of 31 August no reply has been received.

Dear Mr Repacholi

Congratulations on your election to the Australian House of Representatives.

You have been elected to represent the people and workers of the Hunter and in that regard, I ask that you please read my attached letters addressed to your predecessor Mr Joel Fitzgibbon, in which I detail significant abuses of Hunter Valley miners.  Similar letters were sent to the Hunter CFMEU union boss at the time, Mr Peter Jordan.

It is deeply disappointing that neither Joel, nor your party, nor Hunter CFMEU union bosses prevented or rectified the abuses to Simon Turner and many other Hunter casual coal miners.

Among the many severe injustices on which we have fought for Hunter casual coal miners are the following:

  • Loss of basic mineworkers’ compensation for workers injured at BHP’s Mount Arthur Mine and which CFMEU union bosses are aware, yet have done nothing;
  • Loss of miners’ Accident Pay;
  • Employer/mine-owner threats to injured workers to not report serious injuries;
  • Culture of mine management and management “safety bonuses” that threatens casual coal miners who speak up on safety issues;
  • Non-reporting of injuries including serious injuries;
  • Underpayment of up to 40% to casual mineworkers compared with permanent workers alongside casuals on the same roster and doing the same job;
  • Coal LSL under accrual and underpayment for casual miners;
  • Loss of miners’ basic entitlements and protections and the illegal employment of casuals on production under the Black Coal Mine Industry Award;
  • Gaps in the Black Coal Mine Industry Award that left casuals vulnerable and unprotected by the Fair Work Ombudsman; and,
  • Work, health and safety authorities and insurers ignoring injured casuals.

There have been many injustices done to casual mine workers on mine sites in the Hunter and across Australia.  Employers and Hunter CFMEU union bosses continue to exploit and ignore these miners. Labor has misrepresented these miners’ plight in what seems to be an attempt to protect Hunter CFMEU union bosses responsible for donations to your party’s election campaigns.

When Labor and the union bosses ignored miners’ pleas for help to restore basic employment protections and entitlements, we stepped in.  Our One Nation team have been supporting and working for casual workers since July 2019 to restore miners’ entitlements and protections.

Now that you are the Hunter’s voice in Canberra, please consider these facts:

  • CFMEU union bosses set up Hunter labour-hire companies enabling and perpetuating the permanent casual rort.
  • CFMEU union bosses negotiated and signed off on the abusive casual enterprise agreements.
  • Labor’s Jeff Drayton admits he did a deal in 2017 allowing casuals to be terminated with one hour’s notice and gave no entitlement to annual leave, carer’s leave or paid compassionate leave: Daily Telegraph May 2021.
  • The CFMMEU National Legal Director courageously publicly confirmed the union ignored casuals.
  • Mine royalties and mining jobs subsidise our way of life, the schools, the hospitals and the lifestyle that both city and country Australians enjoy.

Labor’s coal and industrial relations policies, actions and omissions are undermining workers and the Hunter.  One Nation has continued to support and fight hard for casual workers’ rights including introducing legislation for equal (or greater) pay for casuals.  Please refer to the attached. 

You are accountable for what happens next or does not happen for the ignored injured coal miners and to jobs and families in the Hunter.

Labor must honour your election campaign promises to Hunter miners and not do deals with the Greens who want to shut down the coal industry. 

I am writing to your Minister for Industrial Relations, the Hon Tony Burke, seeking his support for the Fair Work Ombudsman to conduct an inquiry into the use and abuse of casual mineworkers in the Hunter.  The previous government promised One Nation such an inquiry.  I hope that you will publicly support such an inquiry as a matter of urgency.

I would be happy to meet with you to discuss what needs to be done to further the successes we have achieved for casual coal miners everywhere and to fulfil my aims stated in 2019 to:

  • Restore to workers their legal and moral entitlements and protections and to obtain compensation for the trauma miners have endured;
  • Stop exploitation of permanent ”casual” coal mine workers across Australia; and
  • Obtain justice for Hunter casual miners in light of the collusion between BHP, Chandler MacLeod and the Hunter CFMEU union bosses.

I hope that you and Labor will support my Bill introduced into the Senate earlier this year and re-introduced in the Senate yesterday, and that you will support my call for an independent inquiry.  I look forward to the possibility of meeting with you.

Yours sincerely

Malcolm Roberts

Senator for Queensland

220726-Hon-Tony-Burke-MP
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Coal LSL and mining entitlements fraud – Adjournment Speech 2 February 2020

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I spoke on my ongoing investigation into the case of mine worker Simon Turner. A huge abuse has happened here and government agencies have done nothing.

Transcript

As a servant of the people of Queensland and Australia, I have a duty to raise and fix issues that are both hurting and concerning everyday Australians.  As a Senator I work for the people.

Today, I raise a matter of great concern for everyday Australians – particularly our hardworking coal miners.

Australian workers are feeling afraid for their jobs, for their livelihoods, for their future. Workers need fairness, integrity, trust and accountability.  I’m concerned for the many workers and businesses small and large that have suffered from state and federal govt COVID restrictions.  Business leaders and workers are all looking for direction from this government, yet at the same time a government authority is doing the wrong thing and abusing workers.

What I’ve witnessed since coal miner, Stuart Bonds and I took up the cause of the exploited, abused and discarded Hunter Valley casual coal miners, is a mass of evidence pointing to potential systemic failures and possibly corruption inside a government agency. An agency that Hunter Valley CFMEU bosses and Minerals Council of NSW executives jointly govern and direct.  We Australians cannot afford our own government to continue shonky behaviour at a time when we should be spending our money wisely.

Thanks to Stuart Bonds’ voluntary help for abandoned workers like Simon Turner and others the Coal LSL scam was uncovered.  Simon Turner and many workers wrote for help from their local MPs including Joel Fitzgibbon six times and to this day Joel Fitzgibbons has ignored their letters. Six times.

Joel Fitzgibbon has been the member for Hunter since 1996 so it’s surprising that he does not know that coal miners are the key to this area’s future.

The agency involved is the Coal Mining Industry (Long Service Leave Funding) Corporation – better known as ‘Coal LSL’. An Australian Government corporation established to regulate and manage long service leave entitlements on behalf of eligible employees in the black coal mining industry.

What I hear is that governance isn’t just lacking, it’s absent.  I’m yet to hear why causals get a different LSL rate to permanents on the same rosters, same work.

As an example, Coal LSL’s system seems incapable of checking whether an employee actually receives their correct long service leave entitlement. Coal LSL just accepts an employer letter and pays the employer. No validation or checking of payments to entitlements to actual payment to employees.

A recent analysis of information that Coal LSL themselves provided reveals evidence of duplication, even triplication, of transactions paid to employers. The reporting recently provided to me is unclear[1]. Levy reimbursements during 2018 include a category for details “Not readily available”. For example, the $264,000 of refunds, not reimbursements, paid out from July 2017 to November 2018. What are these refunds, where’s the transparency?   Coal LSL makes lump sum payments that, again, make reconciliation complex. For example, one of BHP’s OS entities in the Hunter Valley received $187,881.77 in a single transaction in May 2020. For who?

It seems that Coal LSL may not be able to confirm employees are even real people as they do not collect ABN or tax file numbers. They simply get a name and a date of birth. They’re operating in the dark ages and need a modern system to prevent fraud?

In some cases we have heard of companies in Singleton being reimbursed for long service leave even though they do not work in coal mining. In one case, Coal LSL paid reimbursements totalling approx. $57,000 to the wife of the owner of a Queensland company with no state office. Why?

We have learned of an employee not receiving on-boarding information about the Coal LSL scheme, particularly in regard to the employee option to opt out of the scheme and save money. In one case recently a coal miner reported that Coal LSL debited his entitlement for 250 hours of long service, when he actually had not taken leave from his employer. Where’s the governance?

Concerns have been expressed to me that Coal LSL’s current processes might enable a bogus company to register and then to possibly launder money through Coal LSL and then reclaim the funds ‘cleaned’ and available to be transferred to criminals. Where are the checks in the system?  The CEO whose annual remuneration is a staggering $430,187 and her Governance Officer have clearly been asleep at the wheel.

I have personally challenged Coal LSL many times in Senate Estimates and even they do not understand how entitlements are accrued, invested, reconciled and paid to individual coal miners. The CEO could not provide a satisfactory response to a simple question in regard to how Coal LSL accounts for monies paid in and monies paid to employees.

The question is that if bogus companies have been paid in the last seven years, then how could this not be picked up? I’m informed that Coal LSL takes registered companies at their word. That has already led to Coal LSL admitting serious errors in miners’ accounts and entitlements.

As Coal LSL has revealed in senate estimates, it has not listened to the complaints of many coal miners who’ve found discrepancies in their entitlements. Once raised, Coal LSL is slow or unresponsive.

I encourage all coal miners to check that Coal LSL has correctly stated their entitlements so they’re not ripped off. Simon Turner, an exploited Hunter Valley coal miner is a case in point where, after years of requests and complaints, Coal LSL took the word of his rogue employer, Chandler Macleod. Over solid evidence and over Simon’s legitimate requests for a fair go.

Coal LSL is lax at informing employees of their options with many casual miners not told that they’re entitled to choose to not contribute to the scheme and to instead take their employers’ contributions as cash in hand. Let’s face it, at the moment Coal LSL receives the employer contributions for many casual coal miners who it never has to pay out if employees do not stay for the eight year qualifying period. Where does this mountain of cash go and how is it accounted for? What I do know is that many casuals would be better avoiding Coal LSL.

There are many, many examples of Coal LSL failing in its obligations and failing to have appropriate checks and balances to verify that employees are getting their entitlements.

For all we know there may be systemic corruption on this governments’ watch. Have unaccountable union bosses and Minerals Council of NSW executives on this Morrison government authority lined their pockets using bogus companies at the expense of coal miners throughout Australia? We just do not know? Clearly, it’s time for change.

We’re talking about an authority that thousands of workers rely on to protect long service leave entitlements. An authority with a culture biased towards pleasing the employer not on protecting and being accountable for employee’s entitlements. This is not the Coal LSL clerical staff’s fault. It’s the Board and management who must stand up and be held to account. Governance does not exist and the culture of Coal LSL is not solutions or customer focussed. Clearly, it’s time for change.

For too long, Coal LSL has operated as a rogue government authority. Until I brought them before Senate Estimates they were never called upon to explain their actions.  It was the suffering of exploited and abandoned workers like Simon Turner that put a spotlight on Coal LSL and its culture that ignores abandoned workers. Clearly, it’s time for change. And it must be now.

Today, Stuart Bonds and I are strongly advocating for change in Coal LSL and a reconciliation of all accounts and entitlements to ensure that workers and employers are not being ripped off.

Stuart Bonds and I pledge to work for justice for workers hurting from the actions of unthinking, uncaring, unaccountable government authorities like Coal LSL. Authorities under the joint control of shadowy union bosses and a Minerals Council acting for uncaring mining conglomerates. The same mining companies and union bosses that enabled the exploitation of casual coal miners in the Hunter Valley.

Clearly, it’s time for a change. Coal LSL needs to be taken out of the hands of self-interested parties. Coal LSL management needs a broom put through it. A change to build an open, honest transparent, accountable culture to protect the entitlements of everyday Australian workers.

I implore all workers and everyday Australians – rural and city – to vote with your feet. Please go and tell your local union branch, member of parliament and senator that you expect that workers’ rights and entitlements to be protected.  Tell Joel Fitzgibbon that the time for talk is over and it’s time for action. Tell Joel Fitzgibbon, the NSW Minerals Council and the CFMEU Hunter Valley union bosses that Coal LSL like all government bodies must demonstrate the highest standards of integrity, to protect workers’ interests, to behave with common sense and transparency. Workers deserve integrity and support.

/1 Comment/by

Red Tape Killling Businesses

One Nation always aims to protect honest workers, protect small businesses and simplify our Industrial Relations (IR) system. The current IR reforms need a lot of work to achieve that.

Transcript

[Marcus Paul]

G’day, Malcolm.

[Malcolm Roberts]

Good morning, Marcus, how are you?

[Marcus Paul]

I’m okay. I’m just having a little chuckle at the wankfest going on in the United States at the moment. I get that it’s a momentous occasion. I understand every time a President’s inaugurated that they have to get celebrities up there to sing songs and carry on. But for God’s sake, enough’s enough, surely.

[Malcolm Roberts]

Yeah, I’ve travelled through all 50 American States. I’ve lived there for five years. I’ve studied at one of the top universities over there and I’ve worked over there in eight different states. And I love Americans. They’re absolutely fabulous people, but they’re different. You know, in many ways they look like us. They dress like us. They have similar habits, they’re casual and they’re formal like us, they love us. But mate, they just go over the top when it comes to celebrating things. it’s just for Australians, it’s too much.

[Marcus Paul]

Well, you’d think that there’s no issue with COVID-19. You’d think that America is all this, there’s no social inequality. You think that there’s no civil unrest. It’s all, I don’t know, look, I’m seeing right now the presidential motorcade with the military escorting Joe Biden back to the White House, the bloke looks like he needs a good lie down.

[Malcolm Roberts]

Yeah, it’s a contradiction in America. Wherever I went you can see contradiction. And, you can get a very energetic country like America but there are so many, so many inequalities as well. But there’s one thing that’s very strong in Americans and that’s the love of their country and their passion for freedom. And so, I think there’ll be a lot of Americans holding their breath right now.

[Marcus Paul]

All right, mate. Now you’re on the road driving down the New South Wales coast, you’re around Singleton, are you?

[Malcolm Roberts]

Yes, and what a beautiful day it is. I used to live in Singleton, worked here several times but it’s a glorious day and blue sky. We just driven up the Valley from Singleton. We’re now in Musswelbrook and we went past Bayswater and Liddell Power Station. It’s just absolutely beautiful.

[Marcus Paul]

Yeah, nice, now the federal government’s so-called industrial relations reforms, you’ve had a fair bit to say about that ahead of Senate estimates hearings in March.

[Malcolm Roberts]

Well, they’re going to try and bring in the legislation into the Senate fairly soon, it’s an inquiry at the moment but we’ve had a good look at it and we still got a lot more work to do on it. But Marcus, you know, our aims are always to protect honest workers, to protect small business. And, in this case, to restore productive capacity. And you know, the government is really just playing at this, it’s not addressing energy, it’s not addressing tax, it’s not addressing infrastructure, it’s not addressing over regulation. It’s still making life hard for people. It’s not a real reform at all, it’s just tinkering to look after his mates and the overriding thing with this so-called industrial relations reform, it’s not reform, it’s tinkering with the deck chairs on the Titanic is that their aim seems to be to not upset anyone and to try and please everyone. And whenever you do that, Marcus, you’re coming out of fear.

[Marcus Paul]

Yes.

[Malcolm Roberts]

And so they’re afraid. And that means the country will suffer. These regulations, they don’t simplify and small business badly needs that. The key aspect of this supposed reform from the Prime Minister is to get jobs, mate.

[Marcus Paul]

Yeah.

[Malcolm Roberts]

It won’t get any jobs. It’s just gonna make things more complex. There are some positives in there but there are overwhelmingly a lot of negatives. We’re just going to have to do a lot of work on this.

[Marcus Paul]

All right, now, obviously, on this trip down the coast you’ve been catching up with people who may have reached out to you, made contact, what are you hearing on the ground?

[Malcolm Roberts]

Well, first of all, I’ve got to say how beautiful the country is on the coast coming south down through New South Wales. It’s just green, it’s glorious. And people, I’ve heard from small business, for example, a guy who run, well, I won’t tell you his business because it’s a boutique business and I don’t want anyone to come back on him but he was really talking about how difficult life is under state, federal and local government. Because they’re making things complex.

[Marcus Paul]

Absolutely, could you imagine all that bloody red tape a business owner has to go through these days? It’s just, it’s almost —

[Malcolm Roberts]

But, Marcus, he was telling me things like if you get a permit from the state government to do something and then by the time you’ve finished dealing with regulations for the local government, the state government permits have expired and you’ve got to get it again. And that means more fees. And he was talking about 20, $30,000, I think, 50, $45,000 in one case, just to get consultants in to do the work for the local government. You can’t afford that.

[Marcus Paul]

No.

[Malcolm Roberts]

But one good piece of news. We visited a workshop here in Philly, a large workshop here, well, in Rutherford which is near Maitland. And they’re telling us, they do a lot of work for agriculture and mining machinery and they’re telling us that the price of coal has gone up quite a bit and they’re hiring again which is good for the Valley. And it’s really good for the whole Hunter Valley and Newcastle because most people don’t realise this but for every job in the coal mine there are six other jobs depending upon those jobs. And so the price of coal and the use of coal is extremely important to everyone in New South Wales.

[Marcus Paul]

Well, look, you know, you’ve got a bloke up there in the Hunter who is making a fair bit of noise. I’m sure he’s scaring the pants off of Joel Fitzgibbon but, I don’t know, if things are looking okay or a little better up there in the Hunter maybe Joel might hold on a little bit.

[Malcolm Roberts]

Well, the problem with Joel is his party. His party won’t let him do things. His party has got their foot on the throat of the coal industry and they’re determined to kill the coal industry. I mean, some of the senior people in the labour party have admitted that and said that is what they want to do. And it’s insane. One of the things I did coming down the New South Wales coast, I’m doing a bit of research in southern New South Wales in the next couple of days and I stopped in Port Macquarie and worked for a day and a half with an absolutely astounding Scientist there who’s been going through the Bureau of Meteorology records and mate, the records are just so shoddy and he’s done advanced statistical analysis. Once he’s removed all the the deliberate movements or adjustments. And there’s no warming at all going on. So, this whole thing about coal is just a beat up.

[Marcus Paul]

Yep, all right. Now, well, just on coal, of course, the Prime Minister, Scott Morrison, he’s had a lot to say. Oh, by the way, when you visit these places, do you don on your high vis shirt and you untuck the top of the collar just to show a little bit of chest hair, look all macho like you’re in the moment? And do you have your professional photographer tailing your every move for a photo opp, Malcolm? I’m just wondering.

[Malcolm Roberts]

No, that’s not me. What I’m doing is I’m driving by myself. This morning I’ve got some of my, one of my staff with me but I’ve been driving down the coast on my own. I make all my own arrangements. Take my own notes, I just listen to people because you can’t listen to people through others. You’ve got to listen by firsthand, direct.

[Marcus Paul]

Fair enough.

[Malcolm Roberts]

So, I don’t go for all that crap.

[Marcus Paul]

Well said. All right, mate, listen, we’ve got a listener Gail Thornton who follows the programme. We want you to say hello. Can you just do me a favour, say, good day, Gail. Hope you’re having a wonderful morning. Just say that for me.

[Malcolm Roberts]

Good day, Gail, hope you’re having a great morning.

[Marcus Paul]

See, Gail says on our Facebook page and I’ll have to tell you, you got a little bit of hate on our social media. Mind you, I get a lot of hate on my social media as well. That’s just what it’s all about. But your posts, when we re-share things that you know you and I have a chat about a certain issue, it’s one of the, this is what I don’t get, this is the hypocrisy with it all and on this programme, we will speak to anybody, labour, liberal, callithumpian, you know, we have Pauline, yourself and also Mark Latham. So, we listen to all sorts, we try to as much as we can. We would love to have the Prime Minister or the Premier on here, but they don’t even know we exist or they probably know we exist but their media people don’t want them to come on because they’re probably upset that I’ll- first question to the Premier would be, when are you going to resign? And the second question to the Prime Minister would be, do you take any responsibility for robo-debt? And what about the thousands of people that have possibly taken their lives? So, that’s why they don’t come on. But your stuff that we talk about is well-received, you know, you gotta have your haters for those to really like you, Malcolm, but Gail says, there’s no way that we will listen to anything Malcolm Roberts has to say. So, I just wanted you to say good morning to Gail. She’s one of your biggest fans, I think.

[Malcolm Roberts]

Well, tell her that I’ll be very happy to meet her. And I look forward to her giving me evidence that contradicts my arguments.

[Marcus Paul]

Well, that’s it. Good on you, mate. Always great to catch up, drive safely. You can’t drop by and visit us, I hear.

[Malcolm Roberts]

Not this time, I was wanting to do that and I’ve got two outstanding retired people in Sydney that I want to meet because they’re both very, very good on water. And that’s a critical issue for us but I was hoping to drop in. But if I go anywhere near Sydney, then, mate, I’ve got to lock up in quarantine in Brisbane when I go back. So, even if I just don’t get out of the car. I’ve just got to lock up. So, I’m going to drive through Mudgee and then that way down through Bathurst and then to Canberra that way, so it’s an extra drive but, hey, that’s the way it has to do.

[Marcus Paul]

Ah, look, we’re broadcasting out into those regions right now and it’s pretty good out there as well. You reckon it’s green on the coast. You should see it inland. It’s just gorgeous around 2MG Mudgee area and out to Bathurst to our station 2BS and out to Orange . I love it out there, mate. Look after yourself.

[Malcolm Roberts]

Thanks Marcus. We’ve got to look after this country and stop the wombats ruining it, the wombats in Canberra.

[Marcus Paul]

All right, mate, bye-bye. Malcolm Roberts, Marcus Paul in the morning.

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Questioning the Fair Work Ombudsman (FWO) – Worker’s entitlements

,

For over 12 months I have been trying to find solutions to an unfair industrial relations system that has caused serious issues in the mining sector in the Hunter Valley and Queensland. There is a systemic issue of ‘full-time casuals’ who are being paid 40% less than their full-time counterparts and not receiving casual loadings or entitlements.

Additionally, these casuals are hired by labour-hire firms who have classed them as ‘office workers’ rather than ‘production workers’ and when injured are not covered by injury or workers compensation. During Senate Estimates this week I questioned the Fair Work Commission on why they allowed this unfair Enterprise Agreement in the Hunter Valley:

  • FWC said that there had been no proposal to change the Black Coal Mining Award by the parties, yet we know there was in 2017 when “the Fair Work Commission rejected the application by a major employers group to extend the casual employment provisions in the Black Coal award to Production and Engineering Employees” CFMEU News 6/7/2017.
  • Commission has no governance to ensure that workers actually agree with an enterprise agreement before the Commission rubber stamps it.
  • The FWC is part of the problem not part of the solution.

Transcript

Senator ROBERTS: Thank you, Chair, and thank you all for attending. Ms Parker, could you tell me briefly your role, please. What’s the core of your role?

Ms Parker: I’m an independent statutory appointment, and I’m responsible for implementing the functions under the Fair Work Act. That includes: providing education, assistance, advice and guidance to employers, employees, outworkers, outwork industries and organisations; promoting and monitoring compliance with workplace laws; inquiring into and investigating breaches of the Fair Work Act; taking appropriate enforcement action; and performing the agency’s statutory functions efficiently, effectively, economically and ethically. The Fair Work Ombudsman—as in myself—inspectors and staff constitute a statutory office established by the Fair Work Act 2009.

Senator ROBERTS: Thank you very much. We’re very concerned about so-called casuals—I say ‘so-called’  in reference to the fact they’re not really casuals; they’re permanents. I’m referring to employees in the Hunter Valley in particular, but there are some aspects that translate into Queensland. This so-called casual coalminer issue has dragged on for years. What are you doing to fix this problem?

Ms Parker: We’re well aware of the issues, and, as you know, you and I have written to each other a couple of times. We take the matter really seriously; I can assure you of that. Where it’s about long service leave, I think we’ve mentioned before that there is a Coal Mining Industry (Long Service Leave) Funding Corporation, and we don’t have anything to do with that. Long service leave is not our purview. We do provide basic information around that, and we refer specific inquiries to that corporation if they’re about long service leave. The Fair Work Commission, who you spoke with earlier, has jurisdiction to resolve long service leave disputes under the Coal Mining Industry (Long Service Leave) Administration Act. The Fair Work Commission can assist with disputes under the act as well, when a modern award provides for a procedure to deal with disputes.

We don’t have power of that kind. We can provide general information about the long service leave scheme in the black coal industry. We’re aware of a number of class actions that are being pursued around issues in the coalmining industry. We’re obviously watching those, but they are before the court, so I won’t be able to comment on those, as you probably can understand, or about the circumstances of any individual who has sought our assistance in regard to the matter that’s before the court.

Senator ROBERTS: You did broaden it by mentioning coal LSL, so I might as well put the whole scope in there. I know you can only access or reference or work on some of those. These are in relation to miners in the Hunter Valley: loss of workers compensation; no accident pay; safety issues; nonreporting of injuries; pay rates; leave; loss of leave entitlements; long service leave, which you already mentioned—some of these are beyond your purview—security; threats; intimidation; and bullying. As I said, they’re not all your responsibility, but I’m particularly concerned about the definition of ‘casual mineworker’ and the award. As you know, your website has said and, in a letter to Simon Turner, one of your advisers said that there is no classification of ‘casual’ in the black-coalmining industry award. Specifically on pay and leave, there are no leave provisions in the enterprise agreement. These people are working full-time production roles, but casuals can’t work in production; they’re working extended rosters with no leave; and they’re being underpaid relative to their peers in full-time employment. They also have been neglected by the unions. Sorry, I’ll make that very clear and specific: the Hunter Valley division of the CFMMEU, not the whole CFMMEU. These people had no-one to turn to. They turned to you. They’ve written to you, as I said, and one lady said, ‘There is no classification of ‘casual’.’ How can they do a BOOT when there’s nothing to compare against?

Ms Parker: Senator, we’re talking about the enterprise agreement that was negotiated with the unions and employers and approved by the Fair Work Commission.

Senator ROBERTS: Yes, it was rubber stamped by the Fair Work Commission.

Ms Parker: It does include casuals, as you said, in some categories. The fact that the award doesn’t have casuals does not preclude the enterprise agreement having casuals. I think Mr Hehir said in his evidence that it is the Fair Work Commission’s role to make sure that the enterprise agreement is fair once it’s agreed.

Senator ROBERTS: How then can BHP’s Operations Services recent application for an enterprise agreement be knocked back, and yet the Chandler MacLeod 2015 enterprise agreement be passed even though the BHP OS pay rates are higher than the Chandler MacLeod pay rates?

Ms Parker: It’s a matter you’ll have to ask the commission, I’m sorry.

Senator ROBERTS: I did.

Ms Parker: They are an independent tribunal and they will have had witnesses in front of them, people providing evidence to them, before they made that decision.

Senator ROBERTS: I asked the Fair Work Commission about anybody applying to vary the black- coalmining industry award about casuals, and they said they’re not aware of any. But I notice on one of your websites and also from the CFMMEU in Queensland, that the Fair Work Commission rejected an application to vary the black-coalmining industry award 2010 to enable the engagement of casuals across all classifications of the award. That was an application from a large employer group. The CFMMEU opposed that, and it was defeated. So how would the Fair Work Commission not be aware of that?

Mr Hehir: If I recall Ms O’Neill’s evidence, it was she didn’t believe there had but that she would take it on notice and check. I think that’s where she went to.

Senator ROBERTS: It’s pretty stunning, Mr Hehir, that this issue’s been going on six years and we’ve made such a big fuss about it in the last 12 months and she wouldn’t be aware of it. Anyway that’s for her, as you said. Recently I asked you, Ms Parker, how many casual black-coalminers from the Hunter Valley have referred complaints or matters relating to their pay and entitlements to your office since 2014. Your response was ‘none’. Since that time you’ve been forced to admit that Mr Simon Turner did lodge complaints during this time period. Can you advise if there were more cases? In all instances please advise the outcomes of their complaints.

Ms Parker: We do apologise that we advised ‘none’. We were certainly not trying to hide that. It’s in terms of our search facility. You have to be very precise. This is black coal, and it’s a specific area of black coal. So I apologise. We did correct the record. We’ve had one that we’re aware of, and we’re pretty confident that that’s all we have. As I said, the system searches are maybe not as surgical as we would like. But we’re very much aware of one.

Senator ROBERTS: I take it that the Attorney-General’s Department now, and the preceding minister who looks after industrial relations, are responsible for changing the regulations or the legislation. Who is responsible for advising them of the need to do so? Because casualisation and the abuse of casuals has really been an issue for quite some time, yet now it has landed employer groups and many hundreds of thousands of workers in problems.

Ms Parker: In terms of our role as the Ombudsman, we enforce and apply the law as it stands. As you say, we are not responsible for the policy or legislation.

Senator ROBERTS: No, I didn’t imply that you were responsible for the legislation, but I would have thought that you could have been advising the Attorney-General or his predecessor of the need to resolve this problem, which has been going on now for at least six years.

Ms Parker: We certainly have regular conversations with the Department, Mr Hehir, about a whole range of matters.

Senator ROBERTS: About this issue? When did you start talking about this issue?

Ms Parker: I haven’t discussed this particular issue. We’ve talked about the WorkPack v Rossato issue, how we interpret casuals, and what advice we provide to the public on casual employees. We are aware that the government’s review of the IR system and the working groups are looking at this area of casual employment. We are monitoring that, and we will provide advice and data. We’re happy to share with the committee what we do with the casuals issue and what advice we provide. But in relation to the legislation, that is a matter for the government.

Senator ROBERTS: It’s my understanding that the Fair Work Ombudsman told Mr Turner to ‘go and get a lawyer’ in order to resolve this and that you have denied the existence of casual coal production workers. You are, I hope, aware of the significant damage that this stance of yours has caused both employees and employers, who now have been taking advantage of this and have racked up a huge liability.

Ms Parker: I don’t believe that we would advise anybody to go get a lawyer. We provide advice to people about all the various areas of assistance that are available to them. Where we are unable to help them, as in we do not see that they are eligible for payment based on the definition in the legislation as it stands, we will advise that they may be able to go to small claims or they may be able to take a court case. In fact, as I mentioned earlier, there is a class action being pursued at the moment on this particular issue.

Senator ROBERTS: Have you done anything to actually help Mr Turner and casual employees like him? Why has it taken so long and it’s still not resolved? These people are in limbo, they’re living out of garages, they’ve been traumatised—why?

Ms Parker: We provide assistance to everyone who contacts us. I’d rather not discuss Mr Turner. We don’t talk about specific requests for assistance. We haven’t asked Mr Turner if he minds us talking about him in Senate estimates.

Senator ROBERTS: Mr Turner has assured me that I can inquire about him. He is very distraught about the lack of support he’s received from anyone, including the union; the employer; the mine owner, BHP; state and federal bureaucracies and agencies; Labor MPs; Liberal ministers—he’s at a loss.

Ms Parker: All I can say there is that we have provided—our website says that only staff employees can be casuals under the award. And the webpage references schedule B of the award. It sets out classifications for staff employees et cetera. We’ve provided the factual information that we have on the actual award. Some people were not satisfied with that answer, so the only option we have is to refer them to those other sources of help, including their ability to go to court if they wish to. We’re not a court or a tribunal.

Senator ROBERTS: So there’s a problem here. Obviously within the legislation there’s a problem, and some people are taking advantage of that. You’ve just said, tough, that’s the way the legislation is. You haven’t referred it to anyone who can change the legislation or investigate changing it or advise changing it? These people are still out in the cold.

Ms Parker: The government’s aware of the issues around casuals, and as you know—

Senator ROBERTS: So how long have they been aware of the issue around casuals? Mr Turner has been writing to people in the government since 2014.

Mr Hehir: Sorry to interrupt. I think we’ve talked broadly around the government’s intent to legislate for a definition of a casual and to legislate for casual conversion rights. I accept that the casual conversion rights may not work at this point in time for the individual you are referring to. The issue that perhaps would be worthwhile us meeting with you separately on is how the enterprise agreement definition has actually impacted on the other issues that you raise. What I’m not clear about is how an enterprise agreement arrangement would impact on somebody’s right to workers compensation. So perhaps we could meet with you separately to try and tease out how this all flows to end up where the actual problems are arising. On the face of it, there’s nothing, to my knowledge, that would mean that somebody who has an enterprise agreement isn’t entitled to workers compensation. I’d need to get into more detail to actually understand what’s occurring to cause that break.

Senator ROBERTS: Ms Parker raised Coal LSL, and when she did, I said let’s go to the full scope of how these people are being abused, exploited and neglected. You’ve now raised workers’ compensation as well. That’s not the main issue. The main issue here is the complexity of the issues, and nobody is fixing it: not the state government, not the federal government. No federal or state agency, no politician is fixing this thing. These people are continuing to face this after six years of neglect and exploitation. I asked Ms Parker a simple question: how long has the government known about it? She said, we know the government knows. I want to know how long they’ve known about it. Was it last year, the year before, 2014?

Ms Parker: I was talking about casuals in general. I apologise if I confused you.

Senator ROBERTS: It’s not hard to be confused on this issue, I can tell you, because there are several people who know one thing very clearly: they are not being protected by employers, unions, agencies federal and state, politicians, governments, ministers at all. These people have been left out in the cold. We now know there is no legal pay rate for a casual mine worker. So someone made it up then; otherwise you wouldn’t be able to do a boot test.

Mr Hehir: Senator, that’s not the responsibility of Ms Parker.

Senator ROBERTS: With respect, Mr Hehir, you said it wasn’t the Attorney-General’s responsibility, and I took it that you implied his predecessor. It wasn’t their responsibility. You said look at the Fair Work Commission. The Fair Work Commission told me it’s not their responsibility; look at the Fair Work Ombudsman. We’re getting running round in circles. This is a magic circle.

Mr Hehir: My understanding of the evidence provided by Ms O’Neill was that in assessing the enterprise agreement that you referred to the relevant commissioner, under the legislation, would be required to assess whether that award was better off overall compared—

Senator ROBERTS: I get that, but how can you refer to a rate when there is no rate? I offered her the opportunity of giving her the full-time roster that these people were employed on as casuals. Could you cost that?

Mr Hehir: It’s a very complex process that the Fair Work Commission undertake to make sure that people are better off overall. I think Ms O’Neill’s evidence was that they’ve changed their practices to try and insert more rigour into that.

Senator ROBERTS: But that indicates that there was a problem before the change last year. So what is going to be done to look after the people who were affected by the ‘unrigorous’ system?

Mr Hehir: As I said, you’ve raised a number of issues and circumstances around this particular individual and, you say, others which—

Senator ROBERTS: Hundreds of others.

Mr Hehir: As I said, it would be useful if we could meet to go through the relevant issues. As I said, some of the things that you imply arise from the enterprise agreement definition. I’m not clear how they would cause that. So I’d need to work through that and understand the interaction with the New South Wales workers’ compensation laws. There is a separate worker occurring around the long service leave. But certainly I’m not aware of a circumstance in which the arrangements under an enterprise agreement would impact on workers’ compensation, so I’d need to have a look at that.

In terms of the actual decision, I think Ms O’Neill was clear: if someone didn’t think that decision was appropriate or that enterprise agreement was correctly decided in terms of passing the BOOT, they were able to appeal it. I think Ms O’Neill identified that that particular enterprise agreement has nominally expired and that the other option there is for someone to apply for the agreement to be terminated. They are the technical processes that need to be followed. As I said, there seems to be a complex web of interactions here. It would be useful if we could meet with you to go through those.

Senator ROBERTS: I’m happy to meet privately with you and go through them, but we’ve had several meetings and nothing has happened. What’s my main concern, Mr Hehir?

Mr Hehir: Senator, your main concern seems to be that the individual is stuck in limbo—

Senator ROBERTS: And hundreds of others like him.

Mr Hehir: and that he cannot find a straightforward answer from the Commonwealth government or the state governments.

Senator ROBERTS: He’s wanting more than an answer. He and I are wanting a solution. I’ve got three aims for this, and I’ve said this from the start. This goes back to May last year, and I first raised it around about July  last year and then in Senate estimates and so on. My first aim is to make sure that Simon Turner and other people like him get their fair entitlements—morally fair as well as lawfully fair—and I want him to get some compensation for the trauma he has suffered for the last six years. The second aim is to make sure these practices are stopped right across the coal industry. The third aim is to bring some justice to the perpetrators of this, who in my opinion are BHP, Chandler Macleod and the Hunter Valley division of the CFMMEU. That’s what I want. Is there any way you can help us in achieving some of those three aims?

Mr Hehir: We can certainly look at what the legal entitlements. In terms of the moral entitlements, I’m not sure exactly what you mean by that. The legal entitlements we can certainly examine.

Senator ROBERTS: If you go beyond the nitpicky words of the law and you look to the intent of the law,  he’s been diddled by some mistakes, some ways of interpreting the law wrongly. Everyone knows that a minor who works in a black coal mine is entitled to workers’ compensation under coal miners’ insurance. There was nothing for him. I’m not going to ask your salary, but he’s existing on $20,000 a year—a fraction of what he used to have.

Mr Hehir: As I said, I’m not aware of what impact his enterprise agreement status would have on his workers’ compensation. I’ve offered to meet with you to go through the details to try and understand how that flows.

Senator ROBERTS: I’ll happily agree to that. But my second concern is that this has been going on unresolved for 16 months now, and I don’t see any sign of it being resolved. These people are still being left in limbo. They’ve just been discarded. My concerns now have become: What are the federal government agencies doing, and is the government at all interested in doing this? How can we possibly support changes to legislation when they’re not even enforcing the current legislation or leaving people out in the cold and there doesn’t seem to be any intent or desire to fix it?

Mr Hehir: That’s certainly not my understanding of the Attorney’s view. As I said, I’m happy to meet to go through the detail. I know that there’s work underway in relation to long-service leave, which was the issue that I recall you—

Senator ROBERTS: After first being denied that there was an issue and then admitting it—that’s a pleasant sign. It took us months to get that.

Mr Hehir: As I said, there is work underway to try and resolve the long-service leave issue. In relation to the actual approach around the enterprise agreement, as I said, I’m happy to have a look at the interaction with other matters. But the enterprise agreement was a document that was accepted by the Fair Work Commission once the employees had voted on it.

Senator ROBERTS: After what we now see—an admission that it’s been tightened up and made rigorous, which implies to me that, before, it wasn’t. So there’s been no investigation of that from what it seems.

Mr Hehir: Ms O’Neill, I think, was at pains to point out that she wasn’t making the statement that the previous process had caused any issues with that particular agreement.

Senator ROBERTS: But there were changes to make it more rigorous, implying that it wasn’t as rigorous before. What I’m seeing is that the Fair Work Ombudsman is not taking responsibility for suggesting changes to a problem or solutions or even identifying the need to investigate a problem to the Attorney-General, and I’m also seeing that it’s not the Fair Work Ombudsman’s responsibility to come up with a solution. So how does the Attorney-General possibly identify this? This just sits there, and Simon Turner keeps sleeping in a garage.

Mr Hehir: As I said, the responsibility for the actual awards and the approval of the agreements is the responsibility of the Fair Work Commission. Ms O’Neill has outlined what she believes are the alternatives there and taken some questions on notice. In relation to the issue around whether Mr Turner was a genuine casual or whether he was should have been classified as an ongoing employee, the Attorney has identified that he intends to introduce legislation in this calendar year to deal with the definition of a ‘casual’ to make it clearer for both employers and employees of what their actual status is and to also provide greater clarity and certainty around the

right to convert. So, in terms of the future, that particular aspect is certainly being looked at. As I said, I’d need to have a look at the interactions with the other jurisdictions.

Senator ROBERTS: I’m concerned that the application that the government has submitted to be part of their Rossato case—I don’t know the technical legal term—was accompanied by some pretty inflammatory rhetoric. All I see in the Rossato case is a decision that says: ‘You tried to have these people passed off as casuals. They’re really permanents.’ So I think we need to have a lot more openness, candour and honesty from the government on Rossato.

Mr Hehir: As I said earlier, the government’s primary interest in Rossato is clarifying whether any claim for the National Employment Standards made by someone who believes they were never or are no longer a casual is able to be set off by the loading. That’s where our interest is, and that’s where the focus is.

Senator ROBERTS: In my opinion, the Rossato decision makes that clear. But that’s up to you, of course.

CHAIR: Senator Roberts, how long do you think you’ve got?

Senator ROBERTS: Probably another two questions.

CHAIR: That’s okay. Then I’ll go to Labor.

Senator ROBERTS: I have some questions for you as a participant in this process, Ms Parker: Is  the industrial law in this country at the moment too complex? Is it impossible to cover everything, impossible to enforce and impossible to understand? How can an everyday worker who doesn’t want to become a lawyer possibly understand what’s going on? He relies on other people to interpret for him or her.

Ms Parker: For the bulk of the workforce, who are on awards or agreements, it’s relatively simple. They don’t have to read the whole award. They don’t have to read the whole agreement. They obviously need to understand what they should be getting paid and what their entitlements are. We provide a lot of assistance to people who phone us and ask us. If they have concerns then we help them. We have a pay and conditions tool that they can look at to work out what they should be paid. There’s a lot of information out there to assist workers, and we do that to the best of our ability. There is some complexity in the system but, for an individual worker looking at their own individual entitlements, it should not be that complicated. Obviously, if you look at the whole Fair Work Act and see how large it is, you’ll say it’s really complicated, but most people don’t need to look at the whole Fair Work Act; they only need to look at a small component of it.

Senator ROBERTS: Mr Turner impresses me as being very intelligent, very capable and very astute, as does Stuart Bonds, who’s tried to help him with this issue for 16, 17 or 18 months now, and they just can’t get through it. I don’t think it’s a matter of the complexity by itself; it’s a matter of the complexity of all the hangers-on they’re trying to drag with them and trying to shake some sense into. There’s something in this mess that’s causing these people to be discarded and exploited. First of all, a company like Chandler Macleod can exploit them. The Hunter Valley division of the CFMMEU enables that, and BHP gets away scot-free and avoids its corporate and moral responsibilities. These people are tossed on the scrap heap. So there’s something wrong with this system. The whole system has broken down.

Ms Parker: This is clearly a complex case. It’s clearly a complex award and a complex enterprise agreement. Our role is to try to make it as simple as we can, but we can’t change what the agreement actually says. It was negotiated; it was approved. It therefore is in play. What the Fair Work Ombudsman—

Senator ROBERTS: So, after six years with the Fair Work Commission, the Fair Work Ombudsman and the Attorney-General’s predecessors, they’re still here. I think we’ve done this enough for now. You know where I stand.

/by

Questioning Coal LSL – Worker’s Entitlements

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During Senate Estimates earlier in the year, I was able to get Coal LSL to admit that there were discrepancies in hours worked reported by employers and to start an audit. Since this questioning, many other workers have come forward with issues and questions they wanted asked in Senate Estimates. Accountability and transparency seems to be lacking and workers are in the dark as to best manage their long service leave entitlements.

Transcript

Senator ROBERTS: Thank you, Chair. Thank you both for appearing today. Could you tell me, firstly, what has Coal LSL done since last estimates to address the errors and wrongs identified in employer data and when  will people be compensated, and what is the total value of the errors to date?

Ms Perks: I’ll start with—

CHAIR: We’ve lost you, I think, again. Hello? Can we hear you? Can you speak again?

Ms Perks: Yes. We’re getting a delay.

CHAIR: You’re getting a delay; a delay on your voice? So there’s an echo? We might pull the plugs out. We will suspend briefly again, so can you log off and log on again, please? Thank you.

Ms Perks: We will.

CHAIR: Thank you. Senator Roberts.

Senator ROBERTS: Thank you, Chair. What has Coal LSL done since last Senate estimates to address the errors and wrongs identified in the employer data and when will people be compensated, and what is the total value of the errors to date?

Ms Perks: Thank you, Senator. The six individuals who were identified back in October who were employed by the Programmed TESA Group have had their records adjusted and it has resulted in a change of 55 hours of entitlement for the total six out of the eight that were identified. Since October, Programmed Tessa, who was the employer—

CHAIR: I think what happened there is that there was more feedback.

Ms Perks: We’re getting the question coming back, circling.

CHAIR: Okay. So the question is on repeat. That would be  amusing.  It’s  a  very  important  question, Senator Roberts. We will suspend again briefly and we’ll do it through Chorus Call. Someone from the secretariat will be in touch to advise you how to do that. We will get you on the phone but not via videoconference.

Ms Perks: Okay.

CHAIR: For the third time, Senator Roberts is going to ask his question. Senator Roberts.

Senator ROBERTS: Thank you, Chair. What has Coal LSL done since last Senate estimates to address the errors and wrongs identified in employer data and when will people be compensated, and what is the total value  of the errors to date?

Ms Perks: Since the last Senate estimates in March the focus of the organisation has been on getting visibility of the issues that were identified. The six individuals who were addressed in the October Senate estimates have had their records updated, which resulted in a change of 55 hours of entitlement for the six in total. Regarding the other two individuals of the eight, it hasn’t resulted in a change in their record on that review. Now, in saying that, what has commenced outside of those six individuals has been a commitment by Coal LSL to commence an audit of the employer data for any employers who have casual employees within the Coal LSL scheme. That audit has commenced and is in train. We don’t have visibility yet of what the outcome of the audit will be or any changes to individuals’ records as a result of that audit.

Senator ROBERTS: Thank you. The second question: why doesn’t a casual get the same Coal LSL payout as a permanent employee when they both work the same hours and roster on the same site in the same role? If this is because of the act, why hasn’t Coal LSL referred the matter to the government and why hasn’t the government fixed this?

Ms Perks: If a casual employee works a 35-hour week, which is a full-time equivalent, they will accrue the same long service leave entitlement as a full-timer. Our records for the employee are held in hours, and if the employee does work for 35 hours during the week their records will be at that full-time equivalent maximum entitlement.

Senator ROBERTS: Thank you. Are casuals made aware that they can waive the Coal LSL scheme and have the contribution paid direct to them? As you will appreciate, this would benefit a lot of casuals that may not stay for the eight-year qualifying period.

Ms Perks: I can’t talk to whether casuals, in particular, have visibility of that. It was an enhancement in our legislation back in 2010 to include waiver agreements as an option for all employees in the scheme. I can take that question on notice. From memory, we have as minimal as four waiver agreements, but I will verify that number and confirm that.

Senator ROBERTS: Sorry, what was that last sentence you said?

Ms Perks: From memory, I think we have four waiver agreements in place out of 426,000 records, but I will take that question on notice and verify that.

Senator ROBERTS:   Why,  if a  casual does take  the Coal LSL waiver option,  do  casuals only get paid   two per cent when the Coal LSL payout is based upon 2.7 per cent?

Ms Perks: All employees, irrespective of their employment status, would be paid based on certain criteria in the legislation which my colleague Mr Kembrey will talk to. The two per cent that you’re talking about is our payroll levy and is not correlated with an employee’s long service leave entitlement. That percentage is in relation

to the payroll levy that employers are required to pay. It is a tax that’s imposed, and that levy of two per cent has been in place since 2018. Prior to that it was 2.7 per cent, but it was reduced in 2017 to that lower level. It’s a rate that’s applicable to all employers who are registered in the fund.

Senator ROBERTS: Could you please provide details of the number of casual employees who have contributions made to the scheme for them and detail how they may have been paid out? How many have left the industry and how much money does this represent for those employees who have not returned to the industry in, say, over three years? In other words they haven’t been paid out and they’ve left the industry.

Ms Perks: I could talk to the amount of casuals who are active in the industry today. According to our  records, in round figures it’s 9,000. I will need to take your other questions on notice. They are quite detailed questions that will need to be responded to.

Senator ROBERTS: Yes, that’s fine; take them on notice. They are very important to us. Can you explain in detail why the amounts contributed by employers to Coal LSL for eligible employees, both permanent and casual, are different to the amounts paid out for those employees? Could you please explain the reasons for the discrepancy in detail, the break-up of what funds go where and the total value that this represents annually?

Ms Perks: There are two important components of the fund. The payroll levy is a tax that’s collected on behalf of the government. That is received monthly by employers. It is remitted to the commonwealth and appropriated back. Separate from that is the records that we hold for all employees in the fund, and that entitlement is accrued in hours. The payment that’s made to the employee will be reliant on their employment agreement. Our legislation does specify the minimum that should be paid. Mr Kembrey might be able to refer us to the section in the legislation that talks about minimum payments that are required on termination or in-service leave. But it is a different part of the legislation to the payroll levy collection act, which talks about levies that are received for the fund.

Senator ROBERTS: Thank you. Is Mr Kembrey going to add anything?

Mr Kembrey: The best way to break down the question is that the payment of levy is not necessarily correlated with the accrual of the entitlement. When entitlements are paid, they are paid at the rate that the employee is earning at the time that they take that long service leave.

Senator ROBERTS: Can you please reconcile the difference between employer contributions and employee payouts? Please also advise what happens to, firstly, the funds where an employee leaves the industry prior to qualifying and fails to return to the industry and, secondly, the total amount of these funds where employees have left the industry, how much is dispersed, and to whom, on an annual basis over the last seven years.

Ms Perks: The fund is a pooled fund. It’s important that employees of the fund understand we are very different to a financial institution and super funds. The fund is a pooled fund. The nature of portable long service leave means employees can move in and out of the industry, and they can have a maximum break from the industry of eight years before their qualifying service accrual is impacted. That’s important context. We must hold the funds for that period of a break in service of eight years, in case that employee returns to the industry, so that we can continue to ensure that we have sufficient funds to pay out for future long service leave.

The actuary assesses and protects the fund’s assets and liabilities based on important assumptions. One is investment returns. There is also the probability of employees reaching eight years of qualifying service. In regard to the employees that you’re talking about, the probability of an employee meeting that eight years of qualifying service starts at a base of 50 per cent. Our data tells us that an employee that’s been in the industry for less than one year has a 49 per cent chance of meeting that eight years of qualifying service. We hold the funds as a pooled fund through that duration of a maximum of eight years break period to anticipate that future liability that the  fund may incur. It is a complex calculation that the actuary conducts. It has fundamental assumptions that underpin that assessment of the fund’s assets and liabilities.

Senator ROBERTS: Could you please tell us how much money is involved in people who have gone beyond the eight years and are not in the industry, and won’t ever get a payout? What happens to their money?

Ms Perks: Senator, can you ask that question again, please?

Senator ROBERTS: If someone leaves the industry and a period of eight years lapses, what happens to their money?

Ms Perks: The fund is structured as a pooled fund. Employers pay a tax to the government that is appropriated back to the fund. The actuary assesses assets and liabilities. We hold an entitlement in hours for the employee. We do not hold an asset which is financially attributed to that individual record. I’m being specific but the record doesn’t have a monetary dollar correlated with it at the record level. It is reported in hours. The actuary assesses

based on the hours that we hold, and 55 million hours of entitlements were held at June 2020. The actuary assesses the likelihood of paying liabilities out of the fund based on the entitlements that are held in hours.

Senator ROBERTS: You would still have to account for everything in a dollar sense if it’s a pooled fund, wouldn’t you? Some people are not going to come back after eight years, so what happens to that money? What happens to those hours? Where do they end up?

Ms Perks: If an employee has a break from the industry for eight years or further, their records will cease to accrue. If they return to the industry they would start from zero years of qualifying service again. So it is an eight years break, which is the most generous break that any long service leave provision allows for. The actuary assesses the likelihood of someone returning to the industry. In that assessment the actuary says that the fund needs X dollars to pay out future liabilities. With that they correlate a payroll levy that is appropriate to be imposed on employers in regard to the collection of future levies.

In the situation where we have seen a larger number of employees not returning to the fund, one would assume that could result in the pooled fund increasing and the liabilities would decrease. If our assets are in excess, that could result in us recommending to the minister to reduce that payroll levy further from that two per cent to a lower rate. The assets and liabilities are correlated continuously by the actuary to assess whether the payroll levy that’s imposed on employers is sufficient to meet the liabilities that are projected to be incurred by the fund in the future.

Senator ROBERTS: Are you saying that if someone is out of the industry for more than eight years, if they come back after that, they will go back to zero and start again? If there’s a surplus or an excess of funds in the pooled fund, the minister will have a recommendation to reduce the payroll levy?

Ms Perks: That is it, in a simplified manner, yes. The three correlate, yes.

Senator ROBERTS: In 2019 I drew to your attention discrepancies and outright employer misreporting.  What have you done to fix all employee entitlements? What steps has Coal LSL taken? If this response took the form of, say, a review project, when will the project be completed, how much will the project have cost and will Coal LSL be prosecuting employers who have negligently or wilfully misreported or mispaid Coal LSL contributions?

Ms Perks: The important action that Coal LSL has taken since March is to commence an audit of employers  of casuals; 9,000 casuals are active in the industry to date. That audit program will extend to review those records. That is in train. The outcomes of that audit will be assessed, and certainly they will be reviewed as to whether rectification or penalties would be appropriate if there’s any understanding of deliberate misreporting of hours.

Senator ROBERTS: You have the ability to penalise employers and prosecute them; is that right?

Mr Kembrey: In certain circumstances, that is correct. In terms of the time lines, it will be a rolling time line. We’re in the early stages of this. We’d expect to see some results of the audit in the next month or two, and that rolling out over the next 12 months.

Senator ROBERTS: If Coal LSL is not prosecuting any parties for negligent or wilful misreporting, could  you please advise us of the assessment process that Coal LSL went through, how this assessment process was managed, by whom, and also explain in detail, despite the evidence of misreporting, why no parties were held to account? You won’t be able to do that for another month, at least, but would you be able to do that, please?

Mr Kembrey: Certainly, we can take that on notice.

Senator ROBERTS: Thank you. Could you please report whether any members of the Minerals Council of New South Wales were parties or related entities to those who misreported, and provide a list of same, including the number of instances by entity? You can take that on notice as well, because that won’t be able to be done for at least a month.

Mr Kembrey: Yes, Senator.

Senator ROBERTS: Thank you. I also have concerns, as we’ve spoken about in the past, with regard to the governance of Coal LSL. I’d like some data, please. Could you provide an Excel spreadsheet that includes all employers registered with Coal LSL covering the period 1 July 2012 to 30 June 2020, including the company or business name, their ABN, the authorised officers, active dates, and details of payments or reimbursements made to each registered employer for the subject period?

Mr Kembrey: Senator, that would be an extensive task. Potentially, we could discuss what the information is that you’d like from that, over an eight-year period. When you say ‘authorised officers’, I’m assuming you mean directors?

Senator ROBERTS: Yes, the people you’re dealing with.

Mr Kembrey: Often we’re not dealing directly with directors; we’re dealing with employees of the company. Senator, perhaps we will take this question on notice and we can talk further about how we could present the material that you’re after.

Senator ROBERTS: That would be great; thank you. Could you also please provide details of the process used to calculate payments to entitled employees; that is, how the amounts received, the entitlement and other costs, or inputs and outputs, are calculated? I’d like to understand the process.

Ms Perks: We’ll take that question on notice. We can certainly give more context to the payroll  levy collection, the calculation of the entitlement and the employer reimbursement rules that relate to the outflow.

Senator ROBERTS: Thank you. Can you please provide details of where Coal LSL funds received for workers who leave the coal industry are held at all material times—I know you talked about them being in hours—who has the records, and the details of the process following the cessation of contributions for employers? Could you tell us where the hours or money goes? Could you also please include full details of where these funds are ultimately repatriated and full details of any service fees, costs or commissions paid and who they are paid to?

Ms Perks: We can take that on notice, Senator. I can say there are no commission service fees in regard to payments, but we will take that question on notice.

Senator ROBERTS: Thank you. Could you please provide an Excel spreadsheet of all entities that Coal LSL pays or transfers funds to, including but not limited to company business name, ABN, authorised officers, dates and details of payments or reimbursements made to each entity, including total payments, and an explanation as  to the payment—for example, fees et cetera?

Ms Perks: Is that in relation to the employers in the fund or are you talking more broadly of every transaction that the fund incurs?

Senator ROBERTS: No, just the payments that are made to people who are entitled to have Coal LSL.

Ms Perks: We’ll take that on notice, yes.

Senator ROBERTS: Thank you. I’m led to believe that registered employers have great difficulty in reconciling the payments made to entitled employees by Coal LSL as they don’t seem to correlate to the employer contributions. Could you please detail the reasons for any differences between employer contributions and the total amounts paid to eligible employees and, in this regard, please advise where unallocated, surplus or  remaining funds or hours are allocated and please advise whether this allocation complies with your constitution and governance framework? Have these matters been raised in any internal or external audit over the period 1  July 2012 to 30 June 2020?

Ms Perks: The first part of the question I’m taking as being similar to a previous question; so we’ll answer that in light of the previous question. Coal LSL is audited by the Australian National Audit Office annually. The audit has been completed. There are no findings in the audit and we’ve had no findings in our audit for the last two years. We can give you a copy of that audit report. It is included in our annual report, which is going through the tabling process currently; so that is available for the public’s review.

Mr Kembrey: I note that in that question there were about five questions; so we’ll take a number of those later ones on notice. I think the first point that you raised was in regard to employers struggling to correlate the reimbursement to the payment to employees; is that correct?

Senator ROBERTS: Yes, that’s correct.

Mr Kembrey: The matter of what is paid to an employee is a matter that is to be decided between the employer and the employee. Then the employer requests a reimbursement for that payment and we need to see some evidence that the money that they are requesting from the fund was paid to the employee. And with the reimbursement, there needs to be some correlation with the levy payment that they’re paying—in a sense, the salary, the payment or the wages that they’re paying a levy on—so that we can ensure that either they’re not being over-reimbursed or the employee certainly is not receiving the reimbursement in full. That’s where the correlation should be. Without any specifics, it’s difficult for me to talk to it.

Senator ROBERTS: Then we might be in touch with you for more on that. I’ve raised many concerns in regard to the treatment and payment of Mr Simon Turner. I note that you’re aware that Mr Turner was forced to leave the coalmining industry due to workplace injuries at the Mt Arthur coalmine that left him totally and permanently disabled, TPD. I note that, approximately three years after my raising these injustices in Senate estimates, Mr Turner has had his case only partly reviewed  and  that Chandler  Macleod, his  employer,  and  Coal LSL have yet to resolve his termination status as being TPD. When will this status be updated and when will Mr Turner’s outstanding questions be addressed?

Mr Kembrey: As we discussed back in the estimates in March, we have been assisting Mr Turner for a number of years now. And the difficulty with that particular issue you’re raising is that that is a dispute between Chandler Macleod and Mr Turner. We have been trying to mediate that and obtain some factual evidence to support the position put forward by Chandler Macleod. At this point in time the parties are holding their positions and they don’t agree with each other. The last we were advised is that those matters are subject to court proceedings in the Federal Court at present. So there is not anything more we can do to try to resolve that, unfortunately.

Senator ROBERTS: What sorts of records would you turn to for proof?

Mr Kembrey: We would turn to contemporaneous correspondence that evidences the reasons. As you know, this is a dispute about the reason why Mr Turner was terminated by Chandler Macleod back in 2016; so we have requested contemporaneous material that supports the position that Chandler Macleod put forward or justifies that position, and that has been provided. We’re not in a position to make a legal assessment of that, because that is not our role; the Fair Work Commission has the power to do that. But I believe that Fair Work Commission proceedings are on foot and those  proceedings  have  been  transferred  to  the  Federal  Court.  Hopefully,  for Mr Turner, there is some resolution to that matter in the near future.

CHAIR: Senator Roberts, just before your next question, we will be breaking at quarter to four for the afternoon tea break and concluding with these witnesses and I know that Senator O’Neill does have some questions. If the two of you could perhaps have a conversation about timing for the remaining nine minutes that would be fantastic.

Senator ROBERTS: I’ve got four more questions that I’ll put to you on notice, Mr Kembrey and Ms Perks,  but I’ll ask this question: Queensland and Hunter Valley coalminers and coalminers everywhere expect Coal LSL to maintain a high standard of probity. Casual coalminers expect that you will do the right thing by them and give them the freedom of choice to  waive  the Coal LSL contributions for them to  receive  the 2.7  per cent or the  two per cent as additional income. I just want to make that point on the record.

/by

Workers left in the dirt by Labor and Union Bosses – 2SM with Marcus Paul

Transcript

[Paul Marcus]

Right now though, as we do each and every Thursday, we have a chat with the wonderful One Nation Senator, Malcolm Roberts. Good morning to you Malcolm.

[Malcolm Roberts]

Good day Marcus, how are you?

[Paul Marcus]

Look I’m okay. This icare scandal has deepened in New South Wales. And Senator it reminded me a couple of weeks ago, when you raised the issue about Simon, a coal miner in the hunter valley.

You recently went to the Hunter and you released a video introducing key points. Now I’ve had a look at it. It is a massive issue. I can’t tolerate abuse of people, I really can’t. You say the mine owner and employer are acting unlawfully, immorally, and unethically. Can you tell us a little bit about Simon’s story again?

[Malcolm Roberts]

Sure. Simon Turner is the human face of a crisis in this nation’s broken industrial relations laws. The people in agencies who are supposed to protect workers have turned their back on him. That’s unions, employers, industry groups, state, government departments, state ministers, federal government departments, federal agencies.

They’ve turned their backs on hundreds of the workers at New South Wales largest coal mine, BHPs Mount Arthur North mine, Mount Arthur mine I’m sorry. They’re not protected. And they’ve turned their back on thousands of workers across Australia, including my state Queensland and in New South Wales who have lost some basic entitlements that everyone has taken for granted.

The people in agencies, Marcus, who are meant to be protecting workers have enabled the exploitation and abuse of these people. The state and federal government departments, employers, industry groups, unions, safety inspectors, political parties, representatives in parliament have all failed their workers.

[Paul Marcus]

What happened to Simon? I mean, you say that he’s been failed and we’ll get to that, but what exactly happened to him? What were his injuries?

[Malcolm Roberts]

Well, Simon was driving a truck while he was employed by the Chandler MacLeod labour hire firm. BHB runs the mine. They’ve got permanent workers there. They’ve also got around 400 or so, what they call casuals, but they’re on the permanent roster. And they’ve been working there for years. The truck that Simon was driving was being loaded.

The coal digger operator, didn’t see Simon’s truck because of the dusty conditions. The whole mine had being shut down apparently, except for this one unit and the coal digger smashed his truck. The massive collision directly injured Simon causing swollen L three, L four, and L five discs in Simon’s back, a pinched sciatic nerve, pinch cranial nerve, and a lateral tear in one of the discs.

The lateral tear in his back leaks fluid into the spine and the resulting nerve damage goes all the way down his left leg, leaving him permanently in pain. I’ve watched this man. It is remarkable what he puts up with. As a result, Simon’s leg collapses without notice and he deals with this ongoing posttraumatic stress disorder and depression from that day 2014. So Simon’s injuries have left him totally and permanently disabled, and he cannot return to work.

[Paul Marcus]

Well, that’s what I was gonna say. I mean, this is a debilitating injury that doesn’t allow this man to work and has ruined his future livelihood. Now, I guess the BHP management, I mean, they would have looked into this incident. Now, what’s been said by them?

[Malcolm Roberts]

Well, it’s amazing. This is where it gets even worse.

[Paul Marcus]

Yeah.

[Malcolm Roberts]

A BHP manager, even though BHP wasn’t the employer, the BHP manager turned up at hospital and another BHP manager tells Simon to his face that if Simon reported the injury, he would not have a job.

[Paul Marcus]

What!

[Malcolm Roberts]

That’s breaking the law. You must report injuries. So Simon returned to the mine and was told to sit out the shift on a cold steel bench. Imagine that, hip and spinal damage and you’re sitting on a cold steel bench. And what we’ve done, we’ve been to the Hunter, even though I’m a Senator for Queensland, because we were so concerned and no one’s taking any action on these people.

We met with other miners who have been traumatised in 2014, ’15, ’16. And yet, if you go to the New South Wales government report for labour hire miners in those years, they reported no injuries for labour hire miners, none.

[Paul Marcus]

That’s rubbish. I mean, why would the management, why would the supervisor in this case, perhaps not report the injury? What is it? Is it in their best interests not to, or what’s the situation here?

[Malcolm Roberts]

Yeah, you’re quite perceptive. The managers at Mount Arthur had a safety bonus that encourages not reporting injuries. If they had injuries, then their safety bonus would drop.

So they would cop it in their wallet. So Simon wasn’t actually getting workers’ compensation or accident pay. Now that’ll shock many miners. It’ll shock many workers around the country. So, you know, desperate for cash. Six months later, Simon tried to access his coal long service leave. They told him he’d been sacked just weeks after his injury.

Simon had not even been told by his labour hire employer Chandler MacLeod nor by BHP, Simon went on to lose his home and he then started living in his parents’ garage, sleeping in his car and three times this man considered ending his life, three times.

[Paul Marcus]

All right. I mean, I don’t understand this, why this has been able to flourish? I mean, Chandler MacLeod pay rates are apparently 40% less than permanent BHP workers on the same 12 month roster as the permanents.

And they’re basically doing the same kind of work, but they’re doing it with no basic work entitlements, like sick leave, annual leave. Look this bloke he’s not even entitled to anything really. I mean, what are you saying about this in Senate estimates?

[Malcolm Roberts]

Well, he is entitled to it, but that’s just it, he’s not getting any of these things.

[Paul Marcus]

Right, I see.

[Malcolm Roberts]

But I applaud your use of data again. You’re right, Chandler McLeod pay rates for these so-called casuals who are really permanent on a permanent roster when working there for years, in some cases, are 40% less than permanent BHB rosters, then BHP employees, sorry.

And Chandler McLeod people have no basic work entitlements, like sick leave and annual leave. And what’s more is that the fair work commission have authorised the Chandler McLeod Enterprise Agreement and the CFMMEU in the Hunter Valley, authorised it and approved it. They’ve signed off on it.

[Paul Marcus]

So the unions endorsed it.

[Malcolm Roberts]

Yes.

[Paul Marcus]

Well, that’s not looking after members, and that’s certainly not looking after miners in the Hunter.

[Malcolm Roberts]

No, it’s not. And then it goes even further, as you alluded to, or as I said, a little while ago, that Simon approached the long service leave to see if he could get an advance on his long service leave entitlements, just get some cash.

[Paul Marcus]

Yeah.

[Malcolm Roberts]

And so bear this in mind. That long service leave contributions for Simon were underpaid and not audited. So my questions in senate estimates started finding these chinks and the Senate estimates said, “No, no, no, they’d be correct.” Sorry, the coal long service leave in senate estimates said their records are correct.

“Have you audited them?” “No”, but they’ve, since after my pressure was applied, they’ve since audited to them and found Simon was correct. Note this though Marcus, Coal long service leaves board has a mixture of directors from the CFMMEU and the minerals council or the mine owners.

And then we have other conflicts of interests. I certainly think they’re conflicts of interests, coal mines insurance, the workers compensation for the coal miners is 50, 50 owned by the New South Wales Minerals Council, the mine owners and the CFMMEU. AUSCoal super is 50, 50 CFMMEU and the State Minerals Councils, the mine owners.

AUSCoal controls the money for coal, long service leave and collects money on behalf of the government and its board is made up as I said, a minute ago, 50, 50 minerals council and the CFMMU. But here’s where it gets interesting for Icare. And I hope people in New South Wales are listening.

[Paul Marcus]

Yeah.

[Malcolm Roberts]

‘Cause your Icare has been underfunded, because it’s paying out workers’ compensation to coal miners, because Simon’s employer Chandler McLeods policy said they only had 22 office workers doing administrative jobs, not coal miners.

They had hundreds of coal miners on a far greater wage than an admin worker and with much greater risk. Now, what that means is that Simon, because he’s not covered by that policy, has been funded by basically iCare.

So the moms and dads who own small businesses and even medium sized businesses in New South Wales, if you wonder why your premiums are going up, it’s because iCare money is going to these unfunded people because a multinational Chandler MacLeod is owned by Recruit Holdings, a huge Japanese recruitment agency that works around the world.

This Japanese firm, recruit holdings, some of its subsidiaries in Australia have been receiving $2.4 billion in the last four years from federal government contracts for labour hire people in our own federal government agencies, and they are not paying for the proper workers’ compensation. That’s why Simon missed out. Instead, they’re being paid by iCare. That’s why iCare is broke, one reason why iCare is broke.

[Paul Marcus]

All right, look this is very big, the attorney general is now proposing to review IR laws, to help the recovery from COVID. It’s a bit difficult to support it, given what is going on with the laws being bypassed and broken anyway, is that right? I mean, everything, the system is broken, it obviously needs to be fixed first.

[Malcolm Roberts]

Completely correct. You’re right onto it. Now, what we’re seeing is the attorney general wants to change the IR laws to help people recover from COVID. That means what he wants to do is condone what’s happening.

What I’ve just outlined. What we need to do is to get compliance, get these laws enforced. The system is broken. You don’t change the system and bring in more breakages, you fix the system first, ensure compliance, ensure the compliance with the law. And then let’s look at fixing it. Otherwise Marcus people like Simon are the ones who we will be paying for this abuse. It’ll never be fixed.

[Paul Marcus]

Yeah.

[Malcolm Roberts]

The attorney general has his way and working for these large companies it seems, it’ll never be fixed and the workers will shoulder the burden because the union has abandoned them in the Hunter Valley, the employers and the employer industry and associations have abandoned them.

And the state government and federal government departments have abandoned them. We’re the only ones chasing this.

[Paul Marcus]

All right, well, Simon obviously needs to be a priority. I mean, I’d love to see him get his lawful and certainly moral entitlements and compensation for the trauma and suffering over the last, what, six or so years.

And also, I mean, we need to continue, I guess to apply pressure, to bring maybe some justice on those who exploited Simon, or at least enabled it, whether it’s BHP, Chandler MacLeod, the Hunter, or New South Wales division of the CFMMEU. I mean, something needs to be done, Senator.

[Malcolm Roberts]

Yes, definitely Marcus. And it’s really significant that if people watch the video that I’ve put out in the last three minutes, what you’ll see is the connections because the CFMMEU in the Hunter Valley started the employment of casuals. The CFMMEU’s predecessor, the Miner’s Federation, initiated casuals for a good reason because of unemployment in the late ’80s.

But the CFMMEU, then became the employer and the union representing the employees. And so that’s a conflict of interest, but the CFMMEU now endorses enterprise agreements. We’ve seen cases of enterprise agreements being sold to labour hire companies. And so the union actually started use of casuals, continued the use of casuals, enabled the use of casuals. And this has exploited workers. And some of these people are members of the union.

[Paul Marcus]

Where’s labor on this Malcolm? I mean aren’t they supposed to be looking after the worker, where are they on this? I mean, when you’re highlighting this, which you obviously are doing in Senate estimates, and you’re talking to me and in the media and you’re on social media and one nation and trying to push some changes, to IR our laws, where are labor on this. Are you getting any support at all from Anthony Albanese and the like.

[Malcolm Roberts]

Well, I’ve written to Anthony Albanese, no response. I’ve written to the local federal member, no response. Simon Turner, the injured miner-

[Paul Marcus]

What about Joel Fitzgibbon?

[Malcolm Roberts]

Yes. And Simon Turner, the injured miner himself has written to Joel six times and has never been, never got a response.

[Paul Marcus]

Well I’ll talk to Joel because Joel and I get on very well but I’ll have to leave it there, ‘Cause I’ve got the deputy premier waiting on the line, but you and I will talk further on this

[Malcolm Roberts]

When you talk Joel, remind him the issue is not casuals. That is one part of it. The issue that I’m raising goes well beyond that, into the abuse of these casuals and what the union, the employer and the labour hire firms are doing and what the state and federal governments are abandoning workers on. That’s the issue.

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