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External Scrutiny

Judicial and administrative tribunal decisions

The department supports an effective workplace relations system by providing legal advice to the Minister and the Government. This includes advising on workplace relations, matters arising under the Building and Construction Industry (Improving Productivity) Act 2016, work health and safety, and workers’ compensation matters before courts and tribunals.

The department supports the Minister’s intervention in significant matters before courts and administrative tribunals. In 2018–19, these included the following.

Metropolitan Fire and Emergency Services Board and United Firefighters Union Operational Staff Agreement 2016 (AG2018/1278, C2019/746 and C2019/1128)
In August 2018, the former Minister for Jobs and Industrial Relations intervened in the Fair Work Commission in relation to indirectly discriminatory terms in an enterprise agreement made under the Fair Work Act 2009. This matter is currently before a Full Bench of the Fair Work Commission.

Mondelez Australia Pty Ltd v AMWU & Ors
In February 2019, the Full Court of the Federal Court heard an application by Mondelez for declarations about the operation of Mondelez’s Claremont Operations (Confectioners and Stores) Enterprise Bargaining Agreement 2017 and the interpretation of provisions concerning the accrual and deduction of personal/carer’s leave in the Fair Work Act 2009. The then Minister for Jobs and Industrial Relations intervened in relation to the interpretation of the relevant provisions. On 21 August 2019, a majority of the Court dismissed Mondelez’s application.

WorkPac Pty Ltd v Rossato
In May 2019, the Full Court of the Federal Court heard an application by WorkPac for declarations that Mr Rossato was a casual employee and is not entitled to amounts in relation to claimed leave entitlements; or, if he is found not to be a casual, WorkPac is entitled to ‘set off’ previously paid casual loading amounts against leave entitlements. The then Minister for Jobs and Industrial Relations intervened in relation to the issue of set-off and the extent to which a casual loading already paid by an employer to an employee can be accounted for against claimed leave entitlements. The Court has not yet handed down its decision.

Equal remuneration and work value case
On 4 July 2018, the Commonwealth filed submissions to assist the Fair Work Commission on questions of law in the Independent Education Union’s application for equal remuneration orders for early childhood teachers in non-government long day care centres and preschools. Hearings began on 26 July 2018 but were adjourned on 30 July 2018 at the request of the Independent Education Union so that it could file an award variation application.

On 17 August 2018, the Independent Education Union filed an application to vary award wages in the Educational Services (Teachers) Award 2010 under section 157 of the Fair Work Act 2009.

The Independent Education Union’s equal remuneration and award variation applications are being heard together.

Auditor-General Report
In 2018–19, the department was involved in ANAO performance audit No.32, Addressing Illegal Phoenix Activity, which was tabled in Parliament on 29 March 2019. The department’s role in this audit was due to its membership of the phoenix taskforce. The Australian Taxation Office, as lead of the taskforce, has responsibility for the implementation of the recommendations.

Senate Estimates
The department appeared before Senate Estimates hearings of the Senate Education and Employment Legislation Committee on three occasions during 2018–19 for a total of four days:

  • Supplementary Budget Estimates — 24 October 2018
  • Supplementary Budget Estimates* — 14 November 2018
  • Additional Estimates — 20 February 2019
  • Budget Estimates — 5 April 2019 and 10 April 2019.

*This was an additional hearing for Comcare and ASEA only.

Parliamentary committee reports

Government responses tabled to parliamentary committee reports

  • The Senate Education and Employment References Committee tabled its report: They never came home — the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia

–– The department provided the government response, which was tabled on 20 December 2018

Parliamentary committee reports received

  • Select Committee on the Future of Work and Workers report tabled 19 September 2018: Hope is not a strategy — our shared responsibility for the future of work and workers
  • Senate Select Committee on Red Tape report tabled 3 December 2018: Policy and process to limit and reduce red tape
  • Senate Education and Employment References Committee report tabled 1 February 2019: jobactive: failing those it is intended to serve
  • Joint Committee on Corporations and Financial Services report tabled 14 March 2019: Fairness in Franchising
  • Senate Standing Committees on Community Affairs report tabled 29 March 2019: ParentsNext,including its trial and subsequent broader rollout*
  • Senate Education and Employment References Committee report tabled November 2018: Wage theft? What wage theft?!
  • Senate Education and Employment References Committee report tabled February 2019: The people behind 000: mental health of our first responders
  • Senate Education and Employment References Committee report tabled February 2019: Fair Work Amendment (Right to Request Casual Conversion) Bill 2019 [Provisions]

*The government response was tabled 1 August 2019
International Labour Organization
Australia is required to report on tripartite (employers, workers and government) consultations concerning international labour standards in accordance with obligations under the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), which Australia ratified in June 1979.

The department is a member of the International Labour Affairs Committee, which is a subcommittee of the National Workplace Relations Consultative Council. It was established in 1978 under section 12(1) of the National Labour Consultative Council Act 1977. Its terms of reference require it to consider matters of substance relating to the International Labour Organization (ILO) and other relevant international bodies. The committee met three times during the reporting period, on 12 October 2018, 1 March 2019 and 5 June 2019.

The department also has regular direct consultations with the representative employer and worker organisations: the Australian Chamber of Commerce and Industry and the Australian Council of Trade Unions.

The department is working with states and territories to progress the Government’s commitment to ratify the ILO’s Forced Labour Protocol, which supplements the Forced Labour Convention, 1930 (No. 29). The protocol requires countries to take effective measures to prevent and eliminate forced labour, protect victims, provide access to appropriate and effective remedies, and sanction perpetrators.
Disability reporting mechanisms
Since 1994, Commonwealth agencies have reported on their performance as policy adviser, purchaser, employer, regulator and provider under the Commonwealth Disability Strategy. In 2007–08, reporting on the employer role was transferred to the Australian Public Service Commission’s State of the Service Report and the APS Statistical Bulletin. These reports are available at apsc.gov.au. From 2010–11, departments and agencies were no longer required to report on these functions.

The Commonwealth Disability Strategy has been overtaken by the National Disability Strategy 2010–2020, which sets out a 10-year national policy framework to improve the lives of people with disability, promote participation and create a more inclusive society. A high-level two-yearly report will track progress against each of the six outcome areas of the strategy and present a picture of how people with disability are faring. The first of these reports was released in 2014 and is available at dss.gov.au.

Information Publication Scheme
Agencies subject to the Freedom of Information Act 1982 are required to publish information to the public as part of the Information Publication Scheme. This requirement is in Part II of the Act and has replaced the former requirement to publish a section 8 statement in an annual report. Each agency must display on its website a plan showing what information it publishes in accordance with the scheme’s requirements. The department’s publication plan is available at docs.jobs.gov.au/pages/information-publication-scheme-ips.