Fair Work Commission - Award Modernisation & Small Business
our senator roberts thank you again for being here today my questions cover a broad range in the fair work commission statement dated 9th of april 2021 regarding the casual terms award review 2021 this review must be completed by 27th of september 2021 are you on target for this date and what has been identified as going over that date so far mr i'll take this one as well thanks senator um yes the commission is definitely on target for that that's a date that was set in the statute and we're we're working towards that so um the commission has issued a number of um information papers outlining the range of casual terms that are found in modern awards um a full bench has been listed for hearing to consider a small group of awards that cover either a large range of employees or have um sort of quirky casual terms and so they'll be some i guess some principals or president will be set by that full bench and then that will be applied to the remaining modern awards so we're working through that um okay thank you now from the casual terms award review 2021 at 12 and 13 of the fair work commission statement i note that the black coal mining industry award m a five zeros one has not been included in the initial review yet the background of that is that there's a lot of confusion and uncertainty in the coal mining black coal mining industry because there is no there was no provision in the award for casuals on production but nonetheless the hunter valley cfmeu did a deal to get that into the enterprise agreements so that meant because there was no ward provision there was no basically anybody under that ea was locked into permanent casual wrought they couldn't get out now with the legislation that the government introduced in march there is a pathway to permanent work uh for for all casuals but i think it needs to be clarified as much as quickly as possible so many everyday australians think it should have priority for the black coal mining award should have a depth priority for a definition of a casual mine production worker given the harm it's done to so many casual black coal miners the lack of that definition can you ensure that this award is reviewed promptly please um senator um well obviously it's not for me to determine um what order that the awards looked at that's a matter for the president and the full bench presiding over that um i'd just like to clarify that the the purpose of these uh um proceedings are to determine whether the casual terms in the awards are compliant or not contradictory with the terms that were introduced in the supporting employment bill it doesn't go to whether there are entitlements to casual work in a particular award the issue of whether there should be the possibility of casual engagement under the black hole award was considered as part of the four yearly review and i think mr phil long spoken to that previous estimates and it's been covered in some of our questions on notice um so that's perhaps a different issue that could be raised it and it could be raised at any time if the parties were to seek to include a casual term for those production employees under the black hole award okay so there's nothing to stop a casual worker who's on permanent casual road at the moment thanks to enterprise agreements from actually casual conversion if they're if they're offered that conversion now no i'm sorry senator that um there is no provision for casual employment for a production employee under the black hole award so if i might um so the my understanding of the legislation it covers because it's being placed into the national employment standards it applies broader than all the awards so if someone is a casual whether there's an award term for casuals or not then the the provisions within the act will apply so yes there is a pathway to conversion because it's been put into the national employment standards okay exactly so thank you thank you sorry rides the award so yeah i apologize senator for not giving that yeah so just be clear mr hair the people who are working as casuals when the changes were made in march will now have access to conversion once once they're offered so that's my understanding because it's been placed into the national employment standards it expands beyond the award system and does apply more broadly thank you because there are a lot of people cursing enterprise agreements that basically lock them into permanent casuals how long after this review a couple questions yesterday about these these matters with the conversion um under 15 employees there will be a different situation but i guess one of the things that we got yesterday that's important was it's a test of reasonableness about whether those um coal miners will actually be able to oh that this yeah yeah the reasonable mistake yeah senator i'm sure you're very strong it's going to matter how long of counsel senator roberts in the fair work commission statement dated 9th of april 2021 regarding the casual terms award review 2021 at 12 i note the hesitancy regarding the definition of simple terms can you advise if your concerns are concerns over language will hold up the review process or have they been resolved um no senator i think that we're still on track to meet that deadline of the 27th of september so we've been advocating for a fair go for australian workers for a while now since the last senate estimates round can you tell me what due diligence has been put in place for fair work commissioners to use to ensure that the boot analysis improves and that we do not see any more failures like the chandler mcleod northern district of new south wales black coal mining agreement of 2015. my understanding is that there were no there was no enterprise agreement the chandler mcleod initially employed miners under the award where there was no provision for for casuals then they came up with the enterprise agreement and that breached the boot test from what we can work out so we need to make sure that miners are protected in future with uh with enterprise agreements that comply with the boot test can you tell me what's being done like that to make sure there's no more failures just um a couple of things on on this senator it's actually been um yeah with on uh on notice and to a reasonable sort of extent um in relation to the um the decision about the channel mcleod agreement it was approved by senior deputy president harrison and while the decision was short she um did um go to to the boot and the analysis of the boot um ms levy can provide further and better detail on it but every agreement application that is made to the commission undergoes a um a very comprehensive administrative checklist and which is performed by especially skilled staff to ensure that the statutory requirements of um and the pre-lodgement provisions are satisfied um and in terms of basically saying that 95 of those applications are made and provided to changes within two members within five days that is the process that is undertaking that first uh that first step okay i'm having a lot of trouble hearing you um or understanding could could you just explain perhaps you could explain i understand that you've got given us a reassurance that the process is going to be followed could you please explain the boot analysis process what are the main steps that the commission now undertakes and is it applied appropriately to each case yesterday question is yes there's a legislative checklist um that is completed by um by as i said especially trained staff at the commission the um a template of that checklist is available on our website as well if you are if you'd like to have a look at we can certainly uh table it for you to have a look at um but is it a cons it is a consistent checklist um that is that is uh performed for every enterprise agreement application that is made okay thank you i heard it clearly that time so we'll check that checklist ourselves we've heard that some union bosses are saying that it is the workers responsibility not the unions for what is put to the commission in relation to enterprise agreements can you tell me then how you ensure that the workers themselves are happy with the agreement and what what what uh checks do you have to make sure that you're satisfied that it's the workers that are happy with the enterprise agreement ms levy may want to add at uh add to this but uh effectively there's a um there's an access period and that is that a statutory access period senator um that all um [Music] every um every employee who's to be covered by that enterprise agreement um has got access to that agreement um and that the employer has gone um to um reasonable lengths to explain the terms of the impact of that enterprise agreement newsletter would you like to add anything to certainly mr furlong so i guess there's a few strands to it that the member who assesses the application will look at whether the the terms and the effect of the terms of the agreement were effectively explained to the employees that's an important test that's been um the the subject of a number of federal court decisions and quite clearly laid out in terms of the level of detail that must be explained to the employees to give them an opportunity to um vote in an informed way and then clearly there is the vote itself so that the there must be a majority of employees who vote for the agreement um vote in favor of it so they're the the primary tests thank you um we're also quite transparent about the fact that an application has been made so an employee um will have an opportunity to make a submission to the commission if they choose to do so so what recourse do workers have through the commission or anywhere else where a union boss fails to do what they promised to bargain for or where they might ignore workers needs in favor of their own interests how do we make sure union bosses held accountable in this process for approving an ea enterprise agreement i think senator um for the commission as i said we're quite transparent in terms of when an application is lodged it's always published on our website immediately um so it's available for the employees to see um before the application is approved and during that time um it's not uncommon for an employee to contact the commission and their um email or letter that they put in will be sent directly to the member who's dealing with the application so if they've raised any concerns that will be brought to the members attention so what you're saying is it seems reasonable to me what you're saying is that if an employee has concerns about the employer or the union bosses that they need to go and check themselves and take responsibility for the enterprise agreement themselves before they vote um vote inform themselves so they voted in in an informed way yes definitely and it's the employer's responsibility to inform them of the effect of the agreement so that's a quite a proactive step that the employer needs to take okay have they have been i may also sorry it may also be assistant if the agreement has um has reached um or passed its minimal expiry date um a part of your employees covered by that enterprise agreement that has passed this normal expiry date can make an application for that agreement to be terminated okay so it gets fairly complicated doesn't it quickly have there been any cases regarding casual conversion put to the commission for determination since the changes to the fair work act earlier this year and if so how many and what have been the issues and the results um senator i can take that one there's been one application so far under the new section 66 exam that application was uh an employee in the um social and community services sector it was only recently received and it's been allocated to a member for hearing okay one application for an appeal to conversion correct yes thank you that's correct um now moving on to another topic have wage theft cases increased or decreased in the last 12 months that's a that's a matter for the fair work ombudsman i'm saying i understand that they're giving evidence later this evening yes we've got some questions for them thank you small business owners frequently find that the cost of being away from work to defend a sometimes spurious unfair dismissal case or other complaint is too much and they end up paying go away money which everyone knows about to the employee what is the fair work commission doing or what could you do to help small businesses and small business employees especially given that they've done heavy lifting during the covered restrictions and downturn and many are finding it hard now both employees and small businesses i'm not too sure i understand that the the notes of the term go away money so i i can't say that i am that that i necessarily agree with it um there are we receive approximately fifteen thousand between uh fifteen thousand under dismissal applications um every year about 80 of those applications are resolved through agreement through reconciliation process what percentage so i'm sorry about 80 percent thank you for those every thought for the vast majority of them are conducted um online uh so on the telephone um at a time that hopefully uh suits both of the uh both of the parties um through that process um and there is no obligation um for the parties the small business that you're talking about employers to the employees obviously the applicants to settle um but if they arrive at a settlement through that process then the matter is finalized um they can obviously um decide not to settle that point and and have the matter dealt with by by a member to our objection okay um miss brothers anything else you'd like to add to that thank you mr phil senator i might just add uh as a useful bit of context that in about two-thirds of cases where money is paid it's for less than six thousand dollars so they are modest amounts of money that are paid when payments are made and payments are made in around 80 percent of matters that are settled yeah my point is that the fair work act when it's printed out is about that thick laid on its side is that thick it is so damn complex that employees and employers don't know what small business employers and employees don't know where they stand many employees right across industry all sizes of companies don't know where they stand and that's that's not good enough so with that there comes it's much easier for one to wrought the other employer to to wrought the employee to to and also for for people to avoid accountability so the complexity of the fair work act is really hindering employment and hindering the the employer employee relationship which is the fundamental relationship on a workplace so that that's why i'm asking that question because we we know talking to small businesses listening to them that they are not hiring people at times because of the complexity and their fear of what will happen and that that that we've got to remove that um so there's a part of your question that we that we didn't get to about what we can do or what we are doing um there are a couple of very large projects that are underway at the moment um to to improve the the services of the commission one of them um it's a very large project is the redevelopment of our website um and at the moment um the language used on our website is um is technical um and one of the uh one of the major changes one of the major improvements um it's going to be the new website is going to be written in very accessible plain language and we're aiming for someone with a year level a year level um literacy year um eight to ten um we're also just um just kicked off a forms redevelopment project um that applies or that there will be applying data and behavioral insights so behavioral economic insights will ensure that the regulatory burden associated with um with making these applications um and that people are informed as best that they possibly can be um are a part of the part of the process so we are looking at ways that we can improve our service delivery and we're acting on them at the moment well thank you that's encouraging fundamentally though the fair work act is highly complex and it doesn't matter how we dress it up in in practical language it's still going to be complex that makes it difficult for both employees and employers to know their accountability what they're accountable for and what their what their entitlements are so i appreciate you raising that thank you uh last questions on just another topic here can you please undertake to inform on the status of the award modernization process that you're undertaking uh you're referring to the four year review of modern award yes okay do you have any any um any questions um in particular about that about the review it's a very very large piece um is it progressing on schedule it is it's very close to being finalized um there are a number of um of common issues and misleading can to talk to the high quality but one of the major initiatives that's um they're still being progressed is uh is the plain language um writing or rewriting of um of a number of um awards that are that have got high um high wages a high award reliance so those awards that have got a um a lot of employees covered by them or relying on them to set out their terms and conditions so um i've got everything else today certainly thanks mr phelan thanks senator um so the four year review has as you know been going on for a number of years um in terms of the award-specific reviews there's only seven awards that are outstanding of the 122 that we started with there are five of those awards uh undergoing what we're referring to as a plain language review which goes to the point you were just making and mr furlong was making about trying to make the terminology less complex and the others are the nurses award which is probably um it's very close to completion we're hoping it'll be completed by the end of july a final draft has been published of that award and it's just out for comment to make ensure that there are no technical or drafting issues that have been um incorporated in it and the final other award is the coal mining award where there's one issue in relation to the interaction between shift work and weekend work penalties and the casual loading for staff employees there was a conference about that yesterday but i understand the parties couldn't come to an agreed position so there's a further conference scheduled in a couple of weeks um so there'll be awards specific issues and then there are a number of common issues across the awards um that have progressed but again there's only a small number of those that are left of the um of the vast number of um reviews that were undertaken over the last six years so while i see it as tinkering it is a it is a good step for having modernization and simplification of the language in particular so everyone knows where they stand certainly is senator we agree thank you thank you chair thank you senator
2021-06-09 16:39
