In Senate Estimates today, I continued to pursue the case to support casual coal production workers. I showed the FWO that the hunter valley CFMEU bosses sold out casual mine workers and left them significantly underpaid and unsupported. This union ignored casuals and trapped them in the “permanent casual trap”
The FWO made us all aware that the Fair Work Commission has known about the problem with the lack of a definition for casuals that left them fall through cracks in the IR and WH&S systems. Yet they have done nothing. We stood up for small business and successfully put up and amendment to enable a simpler system for casual conversion for small business.
Transcript
[Chair]
Senator O’Neill could you at least let Senator Roberts.
[Malcolm Roberts]
Thank you all for being here today. First question, in correspondence between myself and the Fair Work Ombudsman, I was disappointed to hear your office repeatedly told casual coal miners that you could not or would not help them, even though their abuses were many. This was because you said that casual black coal miners did not exist, and there’s no provision for them in the award. At this point, the Ombudsman became a part of the problem and not a part of the solution. Why did you not report this gap to the minister or an authority that could fix it? And what can you do to ensure that these sort of abuses by your office and other instrumentalities like Coal LSL do not happen again?
[Ms Parker]
So, senator, we are able to provide basic information around black coal long service leave provision. Is that what we’re taking about?
[Malcolm Roberts]
No we’re talking about the-
[Ms Parker]
Now, my apologies. We’re talking about-
[Malcolm Roberts]
This was about why you would not be able to help them, help black coal mine casual,
[Senator Sandra] Yeah. working casuals in the black coal industry.
[Ms Parker]
Okay. So, has anyone got the… All right then we’ll have a look at… So, in terms of casualization there’s a couple of things happening with this, we’ve been monitoring workpac and rosatto I guess what I would say is we have to… our job is to enforce and apply the law as it stands. And I believe Senator that we have done a lot of work in regards to your requests for assistance, your complaints about the enterprise agreement, the award, the conflict as you say, between the two. And I understand what you have been advised is that you know, once an enterprise agreement is in place it doesn’t have to align directly with the award. So, there’s a contradiction between those two things?
[Malcolm Roberts]
Yeah. I guess the heart of my question really goes to, who did you inform? Which ministers did you inform? Which agencies responsible did you inform? Because this was a problem where there’s no classification of casual in the Black Coal Mining Industry Award. Yet the union did a deal with the employer, that vastly decreased pay rates, substantially decreased pay rates, and enabled casuals with no provision for conversion. So, the union basically locked them into casualization forever.
[Ms Parker]
So, Senator the-
[Malcolm Roberts]
So, they were significant problems and I wanna know, what mechanism you either didn’t follow or you need in the future to be given power so, that you can raise these issues with the relevant authorities.
[Ms Parker]
So, senator the relevant authority is the Fair Work Commission, which ratified the enterprise agreement.
[Malcolm Roberts]
That’s true, it did ratify it.
[Ms Parker]
Well, we he had nothing to do with that.
[Malcolm Roberts]
But Mr. Turner and others raised the issue with you that they were locked in by their union which gave them a substandard deal, and the Fair Work Commission approved it. Mr. Turner originally was employed as a casual under the Black Coal Mining Industry Award even though there’s no classification for it. Then he went to what looks to be a dodgy enterprise agreement that the union signed off and the Fair Work Commission signed off.
[Ms Parker]
Quite possibly. So, we regulate agreements and awards that the Fair Work Commission approves, we have no responsibility to alter them or amend them, that’s not our role, not our tribunal.
[Malcolm Roberts]
But if an employee comes to you and says, I’ve got this problem, can you at the moment go to another group, say, look we can’t fix this because it’s sort of locked in by the union and the Fair Work Commission, but this is a problem that needs to be fixed. The casual problem it could have been fixed years ago, should have been fixed.
[Ms Parker]
So, the Fair Work Commission is aware of this issue, yes.
[Malcolm Roberts]
So that’s what you do? You make-
[Ms Parker]
Well, we have no other option because we are there to regulate an agreement that is published, agreed by the Fair Work Commission, or the award.
[Malcolm Roberts]
So, thank you for clarifying. So, if someone was not aware in the Fair Work Commission, you would make them aware? But in this case they were aware.
[Ms Parker]
We do share information with the Fair Work Commission. They are aware of this issue because certainly it’s been running for quite some time.
[Malcolm Roberts]
You’re right it has.
Okay, let’s move on. You may soon be required to prepare, to distribute and to build awareness in regard to the Casual Employment Information Statement, associated with the recent bill that passed, including employment conditions and to educate both business and employees on their rights and obligations. Please detail what you will be doing to ensure integrity and awareness in regard to this information sheet. And also what systems and support will be in place to ensure prompt, clear and informative support for both business and employees?
[Ms Parker]
Certainly. Chief Counsel Financier you can look in it.
[Jeremy O’Sullivan]
Senator, Jeremy O’Sullivan, Chief Counsel Fair Work Ombudsman. You’re quite right. When the bill that’s just passed the parliament, receives Royal Assent, I think there’ll be a new Section 125 capital A that will require the Fair Work Ombudsman to draught and prepare and Gazette a Casual Employee Information Statement. That work is well underway. There’s some consultation requirements because that statement is required to just canvas some of the work of the Fair Work Commission. So, under I think it’s Section 682 sub 2 we’re required to just consult on with the Fair Work Commission on that, that’s occurring now. And so I’m very confident that we will be able to publish that statement as required by the legislation when it comes into force, shortly after it comes into force. We’re also consulting with the department, obviously is it’s novel legislation, and we will be there for appropriate to make sure that the department with the administrative responsibility for the act is comfortable with if you like, giving effect to this new provision.
[Malcolm Roberts]
So, that’ll give you the instructions in a way?
[Jeremy O’Sullivan]
No, that… Sorry, I’m sorry for interrupting I shouldn’t have done that,
[Malcolm Roberts]
No, that’s fine.
[Jeremy O’Sullivan]
But no it’s up to us to form our view on the crick content but obviously we consult with the department. And we are obliged to consult with the Fair Work Commission under the Fair Work Act as it is now.
[Malcolm Roberts]
And then you check with them to make sure the interpretation is correct?
[Jeremy O’Sullivan]
Yeah. Yeah. I mean-
[Malcolm Roberts]
Okay. That’s good.
[Jeremy O’Sullivan]
Well, in as much as… So, I don’t wanna act like… sound like we’re acting on dictation, we have to form our own view and we’re responsible, and as Ms. Parker is often reminds me, unfortunately, the buck stops with her, so, we just make sure… I just make sure that we give our advice so that we’re comfortable. Now, there is a mechanism under the legislation for us to update or change the Information Statement as required. And of course now, if any matters came to light that we thought it could be improved, and just like we do with our Fair Work Information Statement, we improve. In particularly for readability, ’cause this is not to be a document that could only be-
[Malcolm Roberts]
Just a living document.
[Jeremy O’Sullivan]
Yeah. That’s okay a good point.
[Malcolm Roberts]
Okay. Will you be doing a separate sheet to ensure that small business employers and employees are aware of the requirement that casual employees working in small businesses have a right to apply for conversion?
[Jeremy O’Sullivan]
Indeed. We’re also preparing if you like, complimentary web content to make sure that basically you know, we’re providing a one-stop shop for everything you need to know about this new statement. We’re afraid to ask if I can be of burden, but you know that’s exactly… we’re making sure and striving to make sure that it’s readily accessible and it’s ready to go out as soon as, you know, the legislation receives Royal Assent.
[Malcolm Roberts]
After what I’ve learned in the Hunter in the last two years, what more can the Fair Work Ombudsman do to support casual coal employee… casual employees, especially in regard to both understanding the impact of the recent change and on their right to casual conversion? How much is being invested to ensure that there is a helpline and or accessible information available in regard to casual rights?
[Jeremy O’Sullivan]
It’s an excellent question. I was gonna say that this new legislation provides both an opportunity and a challenge for us to deliver on that. So, the proof will be in the pudding.
[Malcolm Roberts]
And there will be arguments. You anticipate there will be arguments with people in larger businesses denied conversion and then the employee wanting to come back later and saying that the denial was not for sound reasons?
And that will be the jurisdiction of the Fair Work Commission,
[Jeremy O’Sullivan]
Right.
[Malcolm Roberts]
Yeah. But you’ll be in touch with them?
[Ms Parker]
I might just clarify to that a little bit. So, the initial conciliation will be the Fair Work Commission, but any disputes we know would go for the small claims court of the Federal Court.
[Malcolm Roberts]
Thank you.
[Jeremy O’Sullivan]
You’re quite correct mam, thanks.
[Malcolm Roberts]
Will Fair Work Ombudsman inspectors be able to help small businesses with things such as, coaching and support? Because it was small business who did most of the heavy lifting during COVID-19 restrictions imposed by governments around the country. And we want to ensure that they’re not burdened with more red tape and unnecessary administrative costs.
[Ms Parker]
The answers is
Yes. Senator, we’ve put a lot of our resources into supporting small business and we’ll continue to do so. We’re certainly developing material for this but we also have a dedicated small business helpline, and we’ve had 34,000 calls to that this year alone as in the financial year. And we have a small business showcase with a whole range of resources. The small business webpage was visited 50,000 times this year, we’ve got best practise guides and we have… So, we do put a lot of effort into small businesses and we’ll continue to do that. It’s important they understand what their, you know, obligations and rights are.
[Malcolm Roberts]
Well, I think it’s important just to mention chair, just in finishing up, that we’ve had a lot of contact with small business and small business organisations who are relieved that the bill went through last week, but now they need to make sure it’s implemented properly. So.
Thank you.
