External scrutiny

Judicial and administrative tribunal decisions

The Workplace Relations Legal Group supports an effective workplace relations system by providing legal advice to the Minister and the Government. This includes on issues concerning workplace relations, work health and safety, and workers’ compensation arising before courts and tribunals, and by supporting the Minister’s intervention in significant matters.

The department supported the Minister’s involvement in the following matters before courts and administrative tribunals during 2017–18:

Mondelez Australia Pty Ltd, Claremont Operations (Confectioners & Stores) Enterprise Agreement 2017 (AG2017/5020) 

On 26 March 2018, the Minister for Small and Family Business, the Workplace and Deregulation applied to the President of the Fair Work Commission for the Mondelez Australia, Pty Ltd, Claremont Operations (Confectioners & Stores) Enterprise Agreement to be referred to a Full Bench of the Fair Work Commission on public interest grounds. The Minister’s application outlined concerns that the agreement approval application involved consideration of the correct principles to apply for the accrual, taking and deducting paid personal or carer’s leave under the National Employment Standards, and be relevant to the accrual taking and deduction of annual leave under the Standards. On 13 April 2018, Vice President Hatcher of the Fair Work Commission (as the President’s delegate) rejected the Minister’s application.

Following the Fair Work Commission’s approval of the agreement, on 20 June 2016, the Minister filed an application to intervene in Mondelez’s application to the Federal Court for a declaration as to the correct interpretation of the paid personal or carer’s leave provisions in the National Employment Standards. The Minister seeks to make submissions on the correct interpretation as to the accrual, taking, payment and deduction of paid personal or carer’s leave. The Minister also supports Mondelez’s application to have the matter referred to the Full Court.

Metropolitan Fire and Emergency Services Board and United Firefighters Union Operational Staff Agreement 2016 (AG2018/1278) 

On 11 April, 2018 the Minister for Small and Family Business, the Workplace and Deregulation applied to the President of the Fair Work Commission for the Metropolitan Fire and Emergency Services Board’s (MFB) application for approval of the Metropolitan Fire and Emergency Services Board & United Firefighters Union Operational Staff Agreement 2016 (MFB Agreement) to be referred to a Full Bench of the Fair Work Commission on public interest grounds. The Minister’s application outlined concerns that the agreement included unlawful terms (discriminatory terms and objectionable terms). On 23 May 2018, Vice President Hatcher of the Fair Work Commission (as the President’s delegate) rejected the Minister’s application.

On 4 June 2018, Deputy President Gostencnik granted the Minister permission to make submissions and file evidentiary material in relation to a number of issues. The matter is ongoing and has been scheduled for a five-day hearing commencing 27 August 2018.

Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2017] FCA 1166  

The Commonwealth was joined on 18 October 2016 as second respondent in litigation brought by the Construction, Forestry, Mining and Energy Union (CFMEU) against Mr Nigel Hadgkiss, former Director of the Fair Work Building Industry Inspectorate and former Australian Building and Construction Commissioner. While Mr Hadgkiss was responsible throughout the proceedings for the conduct of his own defence, the department managed the Commonwealth’s involvement in this matter. The Commonwealth was released from this litigation by consent on 8 September 2017.

Equal remuneration applications

On 15 July 2013, United Voice and the Australian Education Union filed an application with the Fair Work Commission for an equal remuneration order for employees in long day care centres. On 8 October 2013, the Independent Education Union filed an application for early childhood teachers in long day care centres. The applications were later expanded to include employees working in preschools. The Commonwealth was named as a respondent to both applications.

On 30 November 2017, the Fair Work Commission Full Bench held a preliminary hearing on the comparator proposed by United Voice and the Australian Education Union. The Commonwealth made submissions to assist the Fair Work Commission on questions of law. On 6 February 2018, the Fair Work Commission Full Bench dismissed the United Voice and Australian Education Union application.

The Independent Education Union application is proceeding separately, with hearing dates on the substantive matter listed for July and August 2018.

The Fair Work Commission’s annual wage review 

The Government’s participation in the annual wage review was supported through legal advice that was provided as necessary.

Parliamentary committee inquiries 

The department appeared before Estimates hearings of the Senate Education and Employment Legislation Committee on three occasions during 2017–18 for a total of six days:

  • Supplementary Estimates – 25–27 October and 1 December 2017
  • Additional Estimates – 28 February 2018, and
  • Budget Estimates – 29 May 2018.

The department assisted the Senate Education and Employment References Committee by making a submission to its inquiry into penalty rates.

The department assisted the Senate Education and Employment Legislation Committee by making a submission and appearing for a hearing, with its inquiries into the following Bills:

  • the Fair Work Amendment (Pay Protection) Bill 2017 on 25 August 2017
  • the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2017 on 28 September 2017, and
  • the Fair Work Laws Amendment (Proper Use of Worker Benefits) Bill 2017 on 30 October 2017.

The department assisted the Senate Select Committee on the Future of Work and Workers by making a submission and attending a hearing on 4 June 2018.

Reports by the Auditor-General

During 2017–18, the department was involved in a combination of ANAO audit activities including, the annual financial statements audit, an assurance review and a number of cross-entity and department specific performance audits:

  • Report No. 4 of 2017–18: jobactive: Design and Monitoring
  • Report No. 6 of 2017–18: The Management of Risk by Public Sector Entities Design
  • Report No. 14 of 2017–18: The Design and Implementation of the Community Development Programme
  • Report No. 24 of 2017–18: Audits of the financial statements of Australian Government Entities for the Period Ended 30 June 2017
  • Report No. 33 of 2017–18: Implementation of the Annual Performance Statements Requirements 2016–17
  • Report No. 40 of 2017–18: Achieving Value for Money from the Fair Entitlements Guarantee Recovery Program (Assurance Review)
  • Report No. 41 of 2017–18: Efficiency Though Contestability Programme
  • Report No. 47 of 2017–18: Interim Report on Key Financial Controls of Major Entities

Two of the ANAO reports tabled in the parliament that made recommendations relating to the department. Report No. 4 of 2017–18: jobactive: Design and Monitoring, and Report No. 33 of 2017–18: Implementation of the Annual Performance Statements Requirements 2016–17 made a total of three recommendations. The Department agreed with the recommendations of the audits.

Office of the Australian Information Commissioner

During 2017–18, the Office of the Australian Information Commissioner made one finding in relation to the Department involving documents requested under the Freedom of Information Act. Details can be found at www.austlii.edu.au/au/cases/cth/AICmr//2018/55.html

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 www.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 www.dss.gov.au

Information Publication Scheme

Agencies subject to the Freedom of Information Act 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 https://docs.jobs.gov.au/pages/information-publication-scheme-ips

The International Labour Organization

Australia has been a member of the International Labour Organization (ILO) since it was founded in 1919. The department has primary responsibility for the Australian Government’s engagement with the organisation. Australia is required to report on the 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 it ratified in June 1979.

The International Labour Affairs Committee 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 ILO and other relevant international bodies. The committee met three times during the reporting period, on 20 October 2017, 5 March and 16 May 2018.

Direct consultation also takes place regularly between the department and the representative employer and worker organisations (the Australian Chamber of Commerce and Industry and the Australian Council of Trade Unions).

In March 2018 the Minister for Small and Family Business, the Workplace and Deregulation approved consideration of the ILO’s Minimum Age Convention, 1973 (No. 138) for possible ratification. The convention aims to ensure the effective abolition of child labour and set the minimum age of admission to employment. The department is consulting with the Australian Chamber of Commerce and Industry and the Australian Council of Trade Unions, state and territory governments and relevant Commonwealth agencies on compliance of existing law and practice with the articles of the convention. The Government will decide whether to proceed with ratification based on the outcomes of these consultations.

The department is also 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 and provide access to appropriate and effective remedies, and sanction perpetrators.