I congratulate the Fair Work Ombudsman (FWO) for at last taking the many complaints from underpaid coal miners seriously and treating them professionally. It’s only taken me five and a half years of persistent questioning to reach this point.
I was informed that preliminary results of the FWO’s investigation would be available around mid-2025. The six-year time limit that applies for enforcement under Section 544 of the Fair Work Act does not prevent investigations from extending beyond that period.
Determining the legality of Enterprise Agreements (EAs) is outside the scope of the FWO. If the Fair Work Commission (FWC) approved an EA, the FWO would consider it legal until a court rules otherwise.
The Senate passed my amendment to a recent Labor bill. That amendment requires the Minister for Employment and Workplace Relations to investigate this wage theft. Minister Watt agreed to provide me with updates and mentioned that the investigation might take up to 18 months to complete. We will persist in holding the Minister accountable in increasingly detailed ways as to progress in his investigation.
After five and a half years of holding government departments and agencies accountable, and doing our own research we continue to pursue Australia’s largest case of wage theft. More than one BILLION dollars of underpayments involving as many as 5,000 workers. Our research has led to miners recently submitting complaints to the Fair Work Ombudsman -. i.e. a miner has been underpaid $211,000 and some miners have had at least $41,000 stolen per year of employment.
Transcript
Senator ROBERTS: Thank you for being here. I want to congratulate and thank the Fair Work Ombudsman for responding to the Independent Workers Union of Australia request for underpayment assessment on behalf of IWUA casual miner members. I hear that the Fair Work Ombudsman is treating these requests with seriousness and professionalism and that you’ve set up a specific process for handling the claims. Given that the underpayment claims involve detailed investigation of documents relating to each miners’ annual income, their pay rates and so on, going back as far as 2013, I appreciate that the investigations may take some time. Does the Fair Work Ombudsman have any idea of the timelines involved? I’m not urging or wanting a fast outcome. Rather than a rushed job, I’d prefer a thorough high-quality investigation.
Ms Booth: Thank you for the question and the compliment. I’ll ask Mr Campbell to commence, but Mr Ronson has direct knowledge of that investigation, I believe.
Mr Campbell: I don’t know that we’ve got a timeframe at this point, but I’ll ask Mr Ronson to assist with an answer, given his immersion in the subject.
Mr Ronson: We’ve put together an overarching project plan in response to the requests to investigate the sector. In terms of preliminary findings—this is a guide, not so much necessarily for each request for assistance or each employee—we’re looking at preliminary findings by at least the middle of next year. The challenges we face, of course, as we go back to 2013, are those records, available witnesses and so forth.
Senator ROBERTS: Thank you; that’s good. When you said ‘next year’, I suddenly realised we’re nearly at the end of the year. I understand that the Fair Work Ombudsman’s investigation is subject to a six-year time limitation. Can you advise of the specific legislation, regulation or policy that creates that six-year time limitation?
Mr Ronson: That’s section 544 of the Fair Work Act. But there’s an important distinction to make, and this is one that we’ve put into our plan. That provision relates to enforceability. If I can just take you back—if someone puts in, as we’ve received, claims that go back to 2013, that does not prohibit us from investigating back to that period. However, if we were to find underpayment and request an employer or previous employer to compensate the employee for their underpayment, we would be restricted or limited by the impact of section 544. What that really means is: say we had to take someone to court. It would mean that at the time we file proceedings—I’m happy for chief counsel to help me here—we’d only be able to enforce an underpayment that goes back six years.
Senator ROBERTS: To 2018. Thank you; that’s pretty clear.
Mr Ronson: That doesn’t preclude us investigating historic underpayment.
Senator ROBERTS: That’s even more encouraging. Thank you so much. My next question is: is the Fair Work Ombudsman able to investigate back beyond—yes, you’ve said that. The One Nation report detailed coalminers’ wage theft and detailed the way casual coalminers’ underpayments have been justified by the people involved. The report identified what was called legal trickery that argued that, because the black coalmining industry award does not allow for casuals, a comparison to what would ordinarily be a casual rate under the award could be ignored in assessing the claimed underpayments of the national Independent Workers Union of Australia member coalminers. What is the approach of the Fair Work Ombudsman to this legal argument that claims to justify underpayments? What bearing does or would this argument have on the Fair Work Ombudsman’s investigations?
Mr Ronson: In terms of the requests for assistance that have come from workers who are being assisted by the Independent Workers Union of Australia, their argument is that the enterprise agreements are unlawful. There are various reasons they have put forward, probably in line with the report you just held. The question of whether those agreements are unlawful is outside our scope. The chief counsel, I think, on previous occasions gave evidence to this committee as to why we don’t go to second question. Nor can we guess the enterprise agreement approval process. What is in scope—what is in jurisdiction for us—is whether there was any coercion or any breach of general protections in the making of the agreement. As to the foundation or the status of the enterprise agreement, if it’s been approved by the Fair Work Commission, we take it as approved. There are a whole range of questions that flow from that, but that’s it in summary.
Senator ROBERTS: So, it’s not necessarily compliant with the law just because the Fair Work Commission approves it, but it has been approved.
Ms Volzke: Senator Roberts, I think we’ve traversed these issues before. It’s the Fair Work Commission that approves agreements, and it’s our job to apply the law to any particular case. As Mr Ronson said, that is exactly what we’re going to do with all of those requests for assistance that have been made. Certainly, there have been issues of legal complexity which still haven’t been authoritatively determined: what actually is the effect of the black coalmining award not providing for casual employment in operational roles. Certainly, there’s been some commentary around that, but it hasn’t been formally determined.
Senator ROBERTS: Thank you. In undertaking the investigations, will the Fair Work Ombudsman report to the Senate on the progress of the investigations, findings and follow-up, obviously within the bounds of required confidentiality in relation to each miner?
Mr Ronson: We’re very happy to, at these appearances, provide updates, if you like, without jeopardising the integrity of any particular investigations. So it’d be at a fairly high level, but we’re more than happy to provide updates.
Senator ROBERTS: Thank you. I have questions to Minister Watt. Minister, when will you start your investigation that the Senate ordered on 16 May by passing my successful second reading amendment to the government’s recent so-called closing-the-loopholes Fair Work Amendment Bill?
Senator Watt: I would have to go back and take a look at that, Senator Roberts. I must admit I—
Senator ROBERTS: It was at the time Minister Burke was in the chair.
Senator Watt: Okay, that’s probably why I’m not familiar with it. Let me take that on notice and come back to you.
Senator ROBERTS: I’m surprised that you’re not aware of it. No-one in the handover made you aware of it?
Senator Watt: I don’t remember anything like that in the terms you’ve described, but Ms Volzke might know.
Ms Volzke: Yes, certainly. Minister Watt wrote to us—I think it was in August, so a couple of months ago— in relation to tasking us to effectively look at investigations of underpayments in black coal mining.
Senator Watt: Yes, I do remember that now. Sorry, I forgot.
Senator ROBERTS: So you are interested in workers?
Senator Watt: I think my record shows I am pretty interested in workers, including coalmining workers, Senator Roberts. I sign a lot of letters, but I do remember that one now.
Senator ROBERTS: Okay, I can understand. What’s your planned format, in terms of reference and scope, for the investigation?
Senator Watt: That’s probably a question for the—
Mr Ronson: That’s what I’m working on, and that’s where we’re developing what we’re calling an overarching project plan. What we’ve got at the moment is around 20 workers who have already approached the Fair Work Ombudsman, and obviously each of those persons will be very helpful to our investigation, because we’ll be able to talk to them about the sector. I can just give you a couple of key features of the project plan. One is to map out and identify who are the key players, the key influences. Senator, you’re on the record, for example, as saying that there are five labour hire entities of significance that you claim warrant attention.
Senator ROBERTS: We think there are more, but we’ve only investigated five.
Mr Ronson: Yes. Labour hire entities will obviously be a sharp focus for this plan.
Senator ROBERTS: Good.
Mr Ronson: Just in the nature of the industry, there are tensions, which we’ve already talked about before, between entitlements that are owed under the award and those under the enterprise agreement, so that’s in scope. We’ll also be working and talking with other regulators—for example, the coal long service leave board—where there are entities of mutual interest. We might be able to collaborate with that agency to enhance our capability and capacity.
Senator ROBERTS: So it’s broad, and—
Mr Ronson: Yes. There’s an overarching plan that will take us around the next 18 months to deliver, but within that we’ve already set up, for example, a dedicated email address for anyone in the sector to approach us. We’re in communications with the Independent Workers Union. They’ve already started using the dedicated email address. We’re active and open for business now, but there’ll be other initiatives and steps we take to enhance awareness of this investigation.
Senator ROBERTS: I might come up with some more questions, but I’ll put them on notice. You’ve told us it will be about 18 months?
Mr Ronson: Yes.
Senator ROBERTS: Okay. Minister, I refer to the letter from the Independent Workers Union of Australia to the CFMEU administrator in relation to the Independent Workers Union of Australia’s application to the Fair Work Ombudsman for investigation—you and I were copied, as was Senator Cash—and the activities of the Fair Work Ombudsman in relation to those underpayments. The IWUA sent you a copy. Have you made yourself, or do you intend to make yourself, cognisant of the Fair Work Ombudsman’s reviews of the underpayment assessments.
Senator Watt: Certainly I will no doubt be informed of the result of the work that the Fair Work Ombudsman is doing.
Senator ROBERTS: Before the 18 months for the overarching inquiry.
Senator Watt: I’m sure the ombudsman will keep me informed of that, as they do on a range of matters.
Senator ROBERTS: Thank you. Have you made yourself, or do you intend to make yourself, cognisant of the One Nation report on this matter, specifically with a view to understanding the CFMEU’s role?
Senator Watt: I haven’t read the report, but you and I have talked about this many, many times at estimates, so I think I’ve got a bit of an understanding of the issues that you’ve raised.
Senator ROBERTS: You’ve always been sceptical, but I encourage you to read the report.
Senator Watt: I’m sure it’s top-quality work, coming from you, Senator Roberts.
Senator ROBERTS: Well, we commissioned it. I didn’t do it.
Senator Watt: Oh, okay.
Senator ROBERTS: I just informed some parts of it.
Senator Watt: I’m sure it would have been better if you’d written it yourself.
Senator ROBERTS:Have you investigated, or do you intend to investigate, the historical activities of the CFMEU where the CFMEU either negotiated, oversaw, were aware of, approved, endorsed or were a party to the agreements that are in discussion?
Senator Watt: My recollection is that those complaints that have been made have been investigated previously and, in some cases, are still being looked at. I’ve got full confidence in the authorities that are looking into those matters.
Senator ROBERTS: They haven’t been investigated yet.
Senator Watt: I think there has been some work looking at the veracity of those allegations. From what I’ve seen, there’s a different view compared to what has been put forward by that group of people. I respect the fact that you believe in and support the people who’ve made those complaints. I guess there’s a different point of view.
Senator ROBERTS: On notice, could I have copies of that advice, please.
Senator Watt: I’ll get you anything that we’ve got, yes.
Senator ROBERTS: Have you investigated or do you intend to investigate whether officers of the CFMEU or persons associated with the CFMEU engaged in any collusive activity such as conspiring with other people or entities to enable the underpayment of casual labour hire coalminers?
Senator Watt: Senator Roberts, we should make the point that when you’re talking about the CFMEU you’re talking about what was the mining and energy division of the CFMEU. It’s now a separate union.
Senator ROBERTS: It’s the Mining and Energy Union now.
Senator Watt: There’s been a lot of discussion about the CFMEU today, and we’re not talking about the construction division. Again, my understanding is that a number of those matters have been looked at already— or, at least, you’ve had them referred to authorities. I’d be relying on the work that’s already happened there.
Senator ROBERTS: Could you, on notice, give us copies of what you’re relying on.
Senator Watt: Sure. I thought, Senator Roberts, that you had actually referred some of these matters to authorities for investigation already. If I’m right in thinking that, I’ll come back to you on what’s happened. If I’m not right about that, then I’d encourage you to refer those, whether it be to the Fair Work Ombudsman or to other groups.
Senator ROBERTS: I think the correct avenue is now being followed by the miners.
Senator Watt: Exactly, so we’ll wait and see the outcome of that.
Senator ROBERTS: If you have anything on what the department has done with it, I’d like to see that.
Senator Watt: Sure.
Senator ROBERTS: Thank you. Given the alleged extensive criminal activity within the CFMEU—I know that was a different division, but the divisions do talk—have you investigated or do you intend to investigate whether any criminal activities, such as bribes or other things, could have resulted from or were a feature of the CFMEU’s involvement with the enterprise agreements, resulting in a shameful massive underpayment of casual coalminers? It seems it could not have happened without this.
Senator Watt: I don’t think anyone has ever produced any evidence of bribes or corruption involving the Mining and Energy Union or, previously, the mining division of the CFMEU. If you’ve got evidence of that, then I would strongly encourage you to refer that to the police for investigation, but I’m not aware of any evidence.
Senator ROBERTS: I believe that two miners that I accompanied, along with a barrister in my office, gave evidence to the Department of Employment and Workplace Relations and to the former minister’s staff—Minister Burke.
Senator Watt: Okay. I’ll take a look at what happened with that. As I say, if you’ve got evidence of someone taking a bribe or engaging in corrupt activity, then I’d strongly encourage you to take that to the police. They’re the authority who can lay charges.
Senator ROBERTS: Do they involve the Fair Work Ombudsman as well? They’d be interested in the motive, wouldn’t they?
Senator Watt: I think what would typically happen, if you’re talking about bribery, corruption or criminal offences—if they came to the attention of the Fair Work Ombudsman, the ombudsman would refer them to the relevant police. The Fair Work Ombudsman has responsibility for enforcing workplace laws, so offences against the Fair Work Act, but criminal offences, whether it be bribery or any other criminal offence, are a police matter.
Senator ROBERTS: To remind you, Minister Watt, this is Australia’s largest wage theft case. It’s outside the legislation that’s been passed since you came to office, and it’s not due to a loophole. Fixing the wage theft and preventing recurrence simply require compliance with the Black Coal Mining Industry Award. Did the government introduce the so-called closing loopholes bill to hide and bury Australia’s largest wage theft case?
Senator Watt: No.
Senator ROBERTS: There were no loopholes that enabled this. It was just straight-out noncompliance with the award.
Senator Watt: No, that’s not why we introduced the law.
Senator ROBERTS: Okay.
Senator Watt: We introduced the closing loopholes laws to, among other things, fix the labour hire rort that was being used by some employers.
Senator ROBERTS: This is the rort, Minister Watt.
Senator Watt: What I’m saying is that the purpose of our introducing the legislation was, among other things, same job, same pay. As I’ve pointed out to you before, Senator Roberts, you didn’t support that law.
Senator ROBERTS: Because there was no loophole. This is the cause of the underpayment. This is the cause of Australia’s largest wage theft case.
Senator Watt: If you didn’t think there was a loophole with coalmining labour hire workers getting underpaid, then I don’t agree with you. I think that was a massive loophole that was being exploited.
Senator ROBERTS: It was just noncompliance with the award. Given the extreme wealth of the CFMEU, have you or do you intend to investigate and consider whether you have, at minimum, a moral obligation to cause the CFMEU to financially contribute to compensation to affected coalminers who have been underpaid? Can you do that?
Senator Watt: I’ll take that on notice.
Senator ROBERTS: Okay. Can the CFMEU administrator do that?
Senator Watt: No, because—I wouldn’t think so, because the CFMEU administrator is responsible for the Construction and General Division of the CFMEU not the Mining and Energy Union, which is a standalone union these days.
Senator ROBERTS: Can you legislate to force those responsible for Australia’s largest wage theft case to pay the miners what they’re owed, if the findings show that?
Senator Watt: I guess, theoretically, governments can legislate on anything, as long as they’ve got a constitutional basis for that legislation.
Senator ROBERTS: I’m pleased to hear that.
Senator Watt: You could bring in a private senator’s bill. I probably shouldn’t have suggested that, should I?
Senator ROBERTS: Thank you, Minister Watt. Thank you, Chair.
Senator Watt: Can I say this really quickly. Senator Roberts, we’ve had a bit of a joke as we’ve gone along, but we take any report about wage theft seriously. All I can do is keep encouraging people like yourself, if you’ve got evidence of things—there are bodies whose role it is to investigate these things, and I’d encourage you to take them forward.
Senator ROBERTS: Yes. The Independent Workers Union of Australia is showing its mettle.
Senator Watt: They can make complaints to the Fair Work Ombudsman.
Senator ROBERTS: I understand they have.
Senator Watt: We’ll wait and see how that goes.
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