Senate Education and Employment Legislation Committee, , 8:10:42 to 8:17:06
The Fair Work Ombudsman discusses its investigation into casual coal miners' pay and the application of the Better Off Overall Test.
Topics: Workplace relations, Integrity, Law reform
Speakers: Senator Malcolm Roberts, Anna Booth, Senator Marielle Smith
Okay. Let's let's uh turn to um Ms. Booth then. Booth, thank you for your letter of 8th of October 2026 and your accompanying report exploring underpayment of the black coal sector. My focus is on what you referred to on page five of your report as quote the third cohort of 14 cases. I extend my congratulations to you too for your media coverage in the Australian newspaper on 8th of October with the article headlined Fairwork Ombudsman dismisses Malcolm Robertss' claim of widespread coal miner wage theft. The PR machine works, appears to work be well. So on 16th of May 2024, my motion was passed in the Senate. This motion stated, quote, clause 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. End of quote. I understand that on 6th of August 2024, the then employment and work based relations minister, Senator Murray Watt, MP, wrote to your office requesting you to lead an investigation into the payment of casual coal miners under the enterprise agreements in the black coal industry. Do you believe this request by Senator Watt to your office was influenced by the Senate motion passed on 16th of May 2024?
Senator Roberts, I don't have um awareness uh of uh uh Senator Watts' uh intentions uh in his mind. All I know is that we were asked to conduct an investigation and did so uh thoroughly uh extensively, uh 56 individual investigations in total, and it was a result of those investigations that I wrote to you uh about uh in relation to the specific uh cohorts of workers. Um I would ask Mr. Campbell and uh if necessary, Mr. Ronson uh to give you more detail.
Thank you. It's widely accepted that this Senate motion was in response to the February 2024 One Nation report which demonstrated factually with backup data, widespread underpayment of Labor hire workers in the black coal sector. Do you agree?
I'm I'm not able to agree or disagree.
Are you aware of the One Nation report?
No, Senator Roberts, I'm not sure.
In light of this, can it be inferred that your report is really a response to the One Nation report?
Our report is a response to the investigations that we are requested by the Senate to undertake, which we did undertake, and the report uh, as you're aware, is uh extensive. And if you have further questions that relate to the aspects of that report, Mr. Campbell and Mr. Ronson are very happy to provide those details.
I'll be asking them questions in a minute. The report produced by one nation applied a better off overall test. Comparing the all-in flat hourly rates applied under the enterprise agreements to the base all in flat hourly rates under the Black Coal Award. Our One Nation better off overall test analysis demonstrates under payments, but you haven't seen that report. Which I'm surprised by the way, but I'll come to that. Your report ignores and fails to examine the application of the better off overall test, focusing exclusively on the assertion that casual labour hire employees are not subject to the Black Coal Award. Would you agree that this is a key difference between your report and what I say is in the One Nation report?
Senator, our report is um founded on uh the legal interpretation that we take that an enterprise agreement prevails uh over the content of an award and any further detail about how that applies on a case-by-case basis, which is different, of course, depending on every case would have to be responded to by Mr. Campbell or Mr. Ronson because I don't have visibility of the individual investigations.
The Fair Work Act, Section 206 states that, quote, base rate of pay under an enterprise agreement must not be less than the modern award rate, end of quote. Does the assertion in your report that the employees in question are not subject to the award remove your obligation, your obligation under the act to test whether the employees are paid less than the base all-in flat hourly rates under the award?
Senator my recollection of the application of that section of the act, and I am drawing upon my past uh as a Fair Work Commission member here, is that uh it acts to apply the minimum rate that's in the award uh to uh the uh minimum rate, base rate in uh in the enterprise agreement in circumstances where that particular base rate in the enterprise agreement is less than the base rate uh in the minimum in the uh in the award, uh but it does not um re-enliven um the scrutiny um of an enterprise agreement in relation to whether it does or does not pass the better off overall test. That's a different different uh concept entirely.
Thank you. Can you understand that the everyday Australian and particularly those affected by this massive underpayment would view your report as misleading and inadequate as it ignores the core requirement to apply a better uh better off overall test to the labour higher coal miners' wages?
I'll neither agree nor disagree on how an ordinary person might uh interpret the content of our investigation report.
Senator Shortly G to rotate, but of course if you seek the call again, I'm about to take thank you.
Um about I've just got a few questions left for Mr. Ronson. Um's encouraging me to ask them.
Uh sorry, Ms. Ms. Beef is not managing the committee's business. Um I am. So we normally do rotations of around 15 minutes. So I'm happy for you to place another question. Then I do need to keep rotating as there are a number of senators. Okay, let's let's but I can come back to you on it on a further rotation if you wish.
Sure.
Would you like to me to rotate now and then come back?
Yes, because I've got about five four questions.
Okay. Thank you, Senator Roberts. I'm coming to the opposition and then I'll come to Senator Payman and then I'll come back to you. Um Senator Kavaskia.