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Education, Employment and Workplace Relations Legislation Committee
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS PORTFOLIO
Safe Work Australia
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Education, Employment and Workplace Relations Legislation Committee
Abetz, Sen Eric
Fifield, Sen Mitch
Thistlethwaite, Sen Matt
Fisher, Sen Mary Jo
Back, Sen Chris
Collins, Sen Jacinta
Siewert, Sen Rachel
Bernardi, Sen Cory
Waters, Sen Larissa
Humphries, Sen Gary
Boyce, Sen Sue
Collins, Sen Jacinta
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Education, Employment and Workplace Relations Legislation Committee
(Senate-Wednesday, 15 February 2012)
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS PORTFOLIO
Fair Work Australia
Senator Jacinta Collins
Fair Work Ombudsman
Senator Jacinta Collins
Office of the Australian Building and Construction Commissioner
Senator Jacinta Collins
Senator Jacinta Collins
Safe Work Australia
Senator JACINTA COLLINS
- Fair Work Australia
- EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS PORTFOLIO
Content WindowEducation, Employment and Workplace Relations Legislation Committee
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS PORTFOLIO
Safe Work Australia
Safe Work Australia
CHAIR: Thank you, Mr Hoy and Ms Ross, for your appearance today. Mr Hoy, do you have any opening remarks you would like to make to the committee before we commence with questions?
Mr Hoy : No, I do not, thank you, Senator.
Senator ABETZ: Welcome to Safe Work Australia officials. Can I be told about the new volunteer assistance package. Was it launched on 3 February?
Mr Hoy : 23 January.
Senator ABETZ: Thank you. What was that designed to do?
Mr Hoy : It was designed to provide some advice and guidance to volunteer organisations and volunteers.
Senator ABETZ: Was that a follow-up from Minister Shorten's roundtable with volunteering organisations?
Mr Hoy : Yes, that is correct.
Senator ABETZ: The volunteering organisations had expressed a degree of concern about the impact of the new work health safety legislation on their sector.
Mr Hoy : Yes, they had, but we had been working with the volunteer associations prior to that roundtable and had produced joint guidance with them to assist volunteer organisations.
Senator ABETZ: If that had already been done, why did we need the roundtable?
Mr Hoy : Some people were still expressing concern about application of the legislation, and it was an initiative of the minister.
Senator ABETZ: And, if all this had been done, why did the chair of Safe Work Australia need to launch a new volunteer assistance package?
Mr Hoy : It was one of the things that we actually suggested as part of that roundtable—to have a dedicated site on our website where volunteers could go to find information relating just to them.
Senator ABETZ: Would it be fair to say the volunteer sector had not at least previously been satisfied as to the application of the work health safety legislation and hence we had the roundtable and hence we had the new volunteer package? If everything was in order we would not have needed a new volunteer package, would we? We would have just given them the existing information.
Mr Hoy : The information was there on the website. There were still some volunteering groups that were a bit unsure about its application. What we have now done, following the roundtable, is to have dedicated material addressing their particular issues.
Senator FIFIELD: If I might interpose, Mr Hoy, I do not expect you to comment on this but I think some of the concern of voluntary groups arose as a result of an interview that the minister gave where, in response to some coverage of the impending regime in the Australian newspaper, groups had questions. The minister was either unable or unprepared to answer what some of the potential penalties might be for volunteer groups that breach the OH&S regime. As I say, I do not expect you to comment on that, but I might just put to you some of the questions that were put to the minister that you might be able to take this opportunity to answer.
Mr Hoy : Senator, if they are hypothetical questions or cases, it is pretty difficult to answer them without knowing the facts.
Senator FIFIELD: Sure.
Mr Hoy : I did not hear the minister's radio interview, so I do not know what he was asked and I do not know what he answered.
Senator ABETZ: Do you have a media monitoring service?
Mr Hoy : We get a media monitoring service via the department.
Senator ABETZ: Did you avail yourself of the transcript of the minister's interview?
Mr Hoy : I did not see or read that particular one.
Senator FIFIELD: The minister's office did not provide you with a copy of the transcript as background before you had the meeting with the volunteer groups?
Mr Hoy : No.
Senator FIFIELD: Okay. This question is not a hypothetical one. It is one that was put the minister that is not hypothetical. The interviewer David Bevan in Adelaide said:
What are the penalties if a volunteer classified under this legislation does something wrong? What are the maximum penalties?
That is not a hypothetical. That is asking what the maximum penalties are.
Mr Hoy : The maximum penalty for an individual for the offence of reckless conduct under the laws is $300,000 or five years imprisonment. But that is reckless conduct, which is the maximum.
Senator FIFIELD: You have already provided far more information than the minister did in an extensive interview, so thank you for that. The minister, in the interview, said that the new regime is a codification of that which is already in existence. Is that correct?
Mr Hoy : That is generally correct. Preharmonisation, volunteers were actually covered in the ACT, Queensland and the Northern Territory.
Senator FIFIELD: When you say covered—
Mr Hoy : Their occupational health and safety acts specifically included volunteers. The point I am making is that it is not a complete new provision to have volunteers covered by this sort of legislation.
Senator FIFIELD: It is not completely new for the ACT, Northern Territory and Queensland. Is that what you are saying?
Mr Hoy : That is the case, yes.
Senator FIFIELD: But it is completely new, I guess, therefore, for New South Wales?
Mr Hoy : In some cases.
Senator FIFIELD: Victoria? Not that it applies yet in Victoria.
Mr Hoy : Victoria has not actually implemented the model legislation.
Senator FIFIELD: I appreciate that.
Mr Hoy : Nor has South Australia, Tasmania or Western Australia.
Senator FIFIELD: In New South Wales prior to the model legislation being replicated there, would there have been fines for reckless conduct by volunteers of up to $300,000 and prison terms of up to five years?
Mr Hoy : I would need to check the specific penalties that were provided under the pre-existing legislation. The other point I should add is that, where volunteers were not specifically covered in the legislation, they were covered as 'other persons at work' under existing OHS legislation.
Senator FIFIELD: As 'other persons at work'?
Mr Hoy : Not specifically as volunteers, as I understand it.
Senator FIFIELD: They were classified as 'other persons at work', but they were not classified as—what is the phrase that is now used under the model legislation?
Mr Hoy : There are definitions of workers.
Senator FIFIELD: Do they come under the definition of worker?
Mr Hoy : They do. Section 7 specifically includes a volunteer. But then you actually do need to go to section 29, which includes the duties of other persons at the workplace, and also section 27, which includes duties of officers, workers et cetera. They are related sections.
Senator FIFIELD: Is that the new regime?
Mr Hoy : That is the new model.
Senator FIFIELD: Could you please take on notice what the penalties were in New South Wales prior to the new regime.
Mr Hoy : We have a table of all those provisions preharmonisation, which we can make available to the committee.
Senator FIFIELD: Do you have that with you at the moment?
Ms Ross : We have the table of all the provisions, but it does not contain the penalties. We can insert the penalty levels into that table.
Senator FIFIELD: I am a little surprised, given the public debate that there has been about penalties, that you do not have that to hand, but I appreciate you taking that on notice. Will the table that you provide have the penalties that were existing in the cases of New South Wales?
Mr Hoy : We have them, but we do not have them in a particular table we can easily hand over.
Senator FIFIELD: Will that also have how volunteers were described in the pre-existing legislation? In other jurisdictions, were they called other persons in the workplace or some other term? It might vary from legislation to legislation.
Ms Ross : Yes.
Senator FIFIELD: When I was in PM&C estimates on Monday, the office of the not-for-profit sector said that they would now be part of the ongoing consultation that the minister announced. Let me rephrase that. There were a number of working parties that the minister established as a result of the crisis meeting.
Mr Hoy : I would not necessarily call it a crisis meeting, but the meeting you are talking about—
Senator FIFIELD: A eagerly sought after meeting, we might say.
Mr Hoy : A meeting with various volunteering organisations. Yes, there is coordinated work to provide information to volunteer groups. Ours is just one part of it. We have completed the material that we undertook to produce. PM&C and others are producing other material. But it goes beyond work health and safety.
Senator FIFIELD: Who is the main government organ that volunteers who have concerns should go to? Should it be PM&C's Office for the Not-for-Profit Sector or should it be Safe Work Australia? Who has the lead here?
Mr Hoy : In terms of work health and safety, they should come to Safe Work Australia. That is the dedicated site. In terms of the broader issues that PM&C and the volunteering associations are involved in, PM&C have carriage for that.
Senator FIFIELD: You mentioned the jurisdictions which have yet to introduce the model legislation: New South Wales, Victoria, South Australia and Tasmania.
Mr Hoy : No. Victoria and Western Australia have yet to introduce it.
Senator FIFIELD: Sorry. New South Wales has it. Victoria, South Australia and Tasmania have yet to—
Mr Hoy : There are five jurisdictions that commenced it from 1 January: Queensland, New South Wales, the ACT, the Commonwealth and the Northern Territory. It is before the parliaments in Tasmania and South Australia. Victoria and Western Australia are yet to introduce the legislation.
Senator FIFIELD: Have the jurisdictions that have yet had legislation given you time frames within which they will seek to have the legislation passed and given assent to? I think it is sometime in 2012.
Mr Hoy : Do you mean the other four?
Senator FIFIELD: Yes, the jurisdictions that have not yet passed legislation and given assent.
Mr Hoy : They have not given me any advice but they committed under an intergovernmental agreement to commence it from 1 January 2012.
Senator FIFIELD: Do you have any updated advice as to what their time frame is or, as far as you are concerned, they committed to 1 January 2012 and they have not done that?
Mr Hoy : Yes, but the intergovernmental agreement also said that they had to use their best endeavours to get it implemented by that time, so they are subject to various parliamentary processes. The situation in Tasmania is that the legislation has been through both houses but the upper house has actually changed the implementation date from 1 January 2012 to 1 January 2013. That now needs to go back to the lower house. In South Australia it is still before the upper house for debate.
Senator FIFIELD: Have any other jurisdictions flagged directly with you or have you had advice via your department that they are looking at different time frames—other than the jurisdiction you indicated is now looking at 1 January 2013?
Mr Hoy : Western Australia had talked about an implementation time frame beyond 1 January 2012. Victoria have said that they are looking at the regulatory impact of the regulations on Victoria, so they have not actually indicated a specific time frame.
Senator ABETZ: Has Victoria specifically rejected the legislation?
Mr Hoy : Not that I know of.
Senator FIFIELD: Is Safe Work Australia aware whether the minister has agreed to further meetings with the voluntary sector?
Mr Hoy : Yes. The minister suggested that we should have a follow-up meeting in a couple of months to review where we are up to, not just with the parts that we are responsible but also for the rest of the initiatives that he talked about that day.
Senator FIFIELD: And that is a follow-up meeting not just with Safe Work Australia but also with the voluntary sector?
Mr Hoy : Yes, that is correct, but we would be involved in it, as would PM&C and others. But that meeting has not yet been set up.
Senator FIFIELD: I know it is a relatively new agency, but what was the first time that the Office for the Not-for-Profit Sector became involved in discussions about the effects of the new OH&S regime on the voluntary sector?
Mr Hoy : I am not sure of the precise date. We will need to take that on notice. But it was some time in 2011, I think. It may have been earlier than that. I just cannot remember.
Senator FIFIELD: Perhaps you could take that on notice. One of the things which caused concern to voluntary organisations, in addition to volunteers being recategorised as workers, was the reclassification of places where volunteers do what they do as 'workplaces'. This might be in the table you are going to provide, but are you aware whether that terminology had been used in some of the pre-existing legislation to define where volunteers undertake their activities?
Ms Ross : It will be in the table that we will provide. Each jurisdiction had a somewhat similar definition of 'workplace'. It has to be remembered that the volunteer organisations that will be covered by the new laws are employers. They would have been employers under the pre-harmonised laws; therefore, a definition of 'workplace' would have applied. In that regard, there is nothing particularly new.
Senator FIFIELD: I am looking at a document from Scouts Australia which was sent to people involved in the scouting movement. No doubt you have seen it. I think it is in the public domain. It goes through a number of headings such as, 'What is a worker?' It says:
Leaders, Committee Members, Parent Helpers and Youth Helpers are classified as workers and therefore have a duty to comply with the laws. Youth Members, New Chums, Parents and Visitors to sites controlled by Scouts also have a duty to follow the safety requirements as directed by a worker.
So parent helpers and youth helpers, in the understanding of Scouts Australia, are now classified as workers. Is that a correct judgment by Scouts Australia?
Ms Ross : We have been speaking with Scouts Australia. We are actually meeting with several members of Scouts Australia next week. We think they are misinterpreting some of the provisions in the new laws, so we are going to be working with them and we are going to be developing material for them that they can then distribute, especially at the club level, to make it clear how the laws will operate and whether they will actually operate in the local clubhouse, because there may not be any work being carried out; there may be purely recreational activity going on there. We put that up as a question on our website. We had it up there as a myth busting question. Scouts contacted us and asked us to take it down for the moment, until we had the meeting with them and came up with some more tailored responses that would assist them.
Senator FIFIELD: Could you table a copy of that myth busting page that was on your website, if you have it—or take it on notice and provide it?
Ms Ross : Yes. It is not that they particularly disagreed with it. It is just that they were seeking further clarification of their position.
Senator FIFIELD: Did that page specifically address parent helpers, youth helpers and those sorts of categories?
Ms Ross : It addressed the issue of when scouts would be covered by the laws as employers and when some of the activities would not be covered by the laws because they could be classified as purely social or recreational activities and not the carrying out of work as such, because the law is concerned with the carrying out of work.
Senator FIFIELD: Okay.
Senator THISTLETHWAITE: The key here is that someone is being employed and carrying out work.
Ms Ross : Yes.
Senator THISTLETHWAITE: So if you have a volunteer association like a scout hall in a local community, where people come together on a regular basis but no-one is being paid or carrying out work, then they are not considered a worker for the purposes of the act.
Ms Ross : That is how we see it, but, as I say, we are working with Scouts Australia to clarify that position.
Senator FIFIELD: So the fact that Scouts Australia or a state division of the Scout Association may have a full-time chief executive and full-time staff—
Ms Ross : They are largely run by volunteers, but they do employ.
Senator FIFIELD: That is right. So, given the fact that they employ, would that not mean—and please say if I am wrong—
Ms Ross : In some circumstances it means that they are covered by the laws and they would be covered by the pre-harmonised laws.
Senator FISHER: But in respect of their employees mainly, surely not in respect to their volunteers as well.
Ms Ross : No, as we were saying before, in some jurisdictions the laws did cover volunteers and in other jurisdictions the laws covered them as other persons at the workplace.
Senator FIFIELD: But, under the new regime, if Scouts Australia employs full-time staff that would mean that a section leader or a scout master of a scout group would be deemed for the purposes of the new regime to be a worker because the organisation of which they are a member employs more than one full-time staff member.
Ms Ross : Only when carrying out work activities, and that is what we need to clarify with them. We need to gather that information from them—
Senator FIFIELD: If a volunteer was carrying out what you deem to be work activities, and they are a member of an organisation which employs at least one full-time person, then they are covered by the new regime?
Ms Ross : Yes, they are given the protections of the laws.
Senator ABETZ: So if you have got a coordinator employed who is arranging a bottle drive, for example, in the neighbourhood then every volunteer that is collecting bottles from the local neighbourhood—this was before our recycling bins were made available—would they be deemed then to be workers because they were under an employed person?
Ms Ross : No, that is not necessarily the case.
Senator ABETZ: Not necessarily but possibly?
Ms Ross : In those circumstances it may be purely a fun-raising activity, so it falls outside of the scope of work as such.
Senator FIFIELD: If you had—and you may be tempted but I am asking you to resist the temptation to say, 'Senator, that's a hypothetical scenario'—
Ms Ross : We are getting into hypotheticals here.
Senator FIFIELD: And it is impossible not to because that is what voluntary organisations are entitled to do, to say: 'Here is a particular set of circumstances. What do we need to do in this set of circumstances?' If you are a scout master taking a group of scouts to a camp site, you are camping, you are doing other activities: in that scenario, would the scout master be deemed to be a worker?
Ms Ross : We actually consider that that would be a recreational activity, but we need to find out more information from the scouts themselves.
Senator FIFIELD: Sure.
Ms Ross : And that is why we are meeting with them—
Senator FIFIELD: If you do not know, they cannot know.
Ms Ross : But this is the case under pre-harmonised laws in some jurisdictions—
Senator THISTLETHWAITE: That is the case now.
Ms Ross : and that is why we are finding out some more information.
Senator FIFIELD: But is—
CHAIR: Just wait one second. We have had a lot of people jumping in. Senator Thistlethwaite had a clarification question, then I will come back to you, Senator Fifield.
Senator THISTLETHWAITE: Using Senator Fifield's example, as far as I understand the law as it is, pre the harmonised regime, the scout association would already have that responsibility and duty as the controller of a premises, plant or substance, at least in New South Wales. They would have a duty to, as far as practicable, provide a safe place of work. Were they to breach that duty, they would be subject to penalty of 750 penalty units under the New South Wales act or two years in prison. That obligation already exists under the pre-harmonised legislation.
Ms Ross : Yes, exactly.
Senator FISHER: In New South Wales.
Senator THISTLETHWAITE: In New South Wales, but going back to what Mr Hoy said earlier—in Queensland, Northern Territory and the ACT it is specific in respect of volunteers.
Mr Hoy : Yes.
Senator THISTLETHWAITE: In other jurisdictions, it is not specific in respect of volunteers but it does extend an obligation on the controllers of premises, plant or substance. As far as I can see, by at least harmonising all of the laws we are at least providing one single system that over time everyone can get used to and work under without having the difficulty of trying to comprehend different systems under different states.
Mr Hoy : That is correct.
CHAIR: I also make the point the committee has done an inquiry into the legislation and we covered a lot of these issues quite extensively during that inquiry. People might like to read our report—it was an excellent report.
Senator FIFIELD: You are very indulgent, Chair. Ms Ross, Senator Thistlethwaite in a scenario that he put to you said that this is what would exist in New South Wales under the previous legislation in relation to scouts, I think he was referring to. I did not see you nod one way or the other to that.
Senator Jacinta Collins: I think Mr Hoy answered that.
Ms Ross : I agree but the point I was trying to make was that under the pre-harmonised system the OHS laws would have applied to some of the scouts activities but not to other activities. That is the point that I am trying to make—that is the case under the new laws, as well.
Mr Hoy : The other point that needs to be made is that, before harmonisation, the common law also applied in a number of jurisdictions.
Senator FIFIELD: Indeed. Perhaps rather than me present scenarios to you, maybe you could provide us with a scenario where a group of volunteers under pre-harmonised laws in that particular jurisdiction would not have been considered workers and subject to the pre-existing OH&S regime but under the new regime would be.
Mr Hoy : I am loathe to provide hypotheticals.
Senator FIFIELD: I am not asking for a hypothetical, I am asking for an example of where the situation would have changed as a result of the harmonised laws. Worked examples are a pretty common thing.
Mr Hoy : I will take it on notice, but as I said, I am loathe to cook up—
CHAIR: Won't this be in the table? I think you have presented the table you talk about already to the committee.
Mr Hoy : It may not necessarily cover it.
Senator Jacinta Collins: They are amending it too.
CHAIR: But you are amending it to include the difference in the penalties.
Mr Hoy : I am wary of cooking up particular things that may or may not apply.
Senator FIFIELD: It is a worked example—something that the tax office often does as a guide for taxpayers, to say 'Zac and Jo have two kids, they earn this much, this is their scenario'.
Ms Ross : We do provide some scenarios because there are concerns that the laws extend to book clubs and sewing circles and patchwork clubs and things like that, but they do not.
Senator FIFIELD: In all seriousness, I think one of the things that causes concern amongst voluntary groups is the sort of interview Minister Shorten gave where he kept saying:
I am not going to deal with hypotheticals, look I will send you the schedule ...
I do not know if he ever did send the schedule. A journalist said:
You are refusing to answer questions.
No not at all.
Yes you are.
Well sorry what I am refusing to do is answer half your question.
Senator FISHER: Hypothetically though.
CHAIR: Alright, you have made your point, Senator Fifield.
Senator FIFIELD: In all seriousness, I think it would be very helpful to these organisations if you could describe a particular scenario or a particular organisation and say, yes, this person is covered by the new regime or, no, they are not. This is no change from how it was before.
Ms Ross : Perhaps they were and they are not now.
Senator FIFIELD: Whatever it would be. But I do think some worked examples of that nature would be of great assistance to these organisations.
Senator BACK: There was case of some constituents who came to me. I will ask you to comment on it or take it on board. It is not hypothetical; it is about retired teachers who journey to stations and outback farming properties to assist kids who are doing correspondence learning. What they do is tremendously valuable. They are not paid and they are now very concerned about where their status lies in this whole question. That is once instance that I would certainly seek some clarification on.
Ms Ross : Is that VISE?
Senator BACK: Yes.
Ms Ross : We did work with them. We actually do not think they are covered by the laws because of the volunteer exception that we have for non employers. They do not employ. They are purely made up of volunteers. That is our understanding.
Senator BACK: That is correct. That is how I understand it to be.
Ms Ross : That is the advice they provided to us. In fact, that is an example of where they will fall out of specific coverage in some jurisdictions. We have clarified that.
Senator BACK: So you think they can move forward confidently?
Ms Ross : Yes.
Senator JACINTA COLLINS: On that issue, in part your suggestion was a good one. To the degree that we have cases that have been considered and the circumstances clarified, the suggestion that you have made should be considered by the round table: the degree to which the detail of that should be made available beyond just the immediate organisation the advice has been given to. That might be a helpful process that can be communicated across voluntary groups. But the government will need to look at how you can describe circumstances. There may be privacy issues; we do not know. I think that is a valuable suggestion.
Senator FIFIELD: Obviously, the more these sorts of examples can be widely disseminated, the better. I will add to that a scenario which has been raised with me by a number of my constituents in Victoria, and that is the situation of Meals on Wheels volunteers. You would know better than I whether their situation would be changed if Victoria did legislate. Is that something you are able to share at the moment?
Ms Ross : We will take that one on notice as well because we need to look into whether they are employers, for a start.
Senator FIFIELD: They would have full-time staff.
Ms Ross : If they are employers then they are covered by the current Victorian OH&S laws.
Senator FIFIELD: No; the people that actually go out and deliver meals are volunteers.
Ms Ross : The current Victorian OH&S laws extend to other persons at the work place.
Senator FIFIELD: Could you take that on notice and see if there is any change in how they are characterised.
Ms Ross : Yes.
Senator ABETZ: The test in the legislation has changed and we have canvassed this before. The word 'control' of the site has been taken out of the legislation. We canvassed this before, especially in the chamber, and moved amendments in relation to that. The actual definition has changed as to control. The Meals on Wheels example is one. You can think of a local church that has a community worker on its books and a pensioner's yard is brought to their attention that needs some care and maintenance. The community worker asks on the Sunday, 'Are there any people in the congregation willing to volunteer next Saturday to help clean up?' So you have the one employed person there plus half a dozen volunteers. Those half a dozen volunteers, as I understand it, would be caught up in that situation under the legislation. Is that correct?
Ms Ross : The volunteers would be, yes. That is the case under the current Victorian occupational health and safety laws.
Senator ABETZ: Or the question is: who is in control of the site and a few other things, and what their individual responsibility is? The chances are the employer person—the community worker that is employed—would be, but the volunteer not. Until we get some cases on this undoubtedly we will continue to argue. But for the volunteer sector it has created a climate of great uncertainty. Volunteering in the community is difficult enough without these issues being thrown up.
Senator FIFIELD: Just a final, I am not sure if it is a suggestion or more a question: is Safe Work Australia—I keep wanting to use the F-word, I keep wanting to say Fair Work Australia—is Safe Work Australia intending, as a result of the meeting that you had with the minister and voluntary groups, to undertake information sessions in each of the states to explain the new regime?
Mr Hoy : In terms of the agency, Safe Work Australia, not specifically, because our role is to develop the national policy. It is a matter for each of the jurisdictions to provide that information. They are all members of Safe Work Australia and we are working with them to undertake that. In relation to some of these issues we have been dealing with the peak bodies to develop joint material for them which they can then distribute to their members.
Senator FIFIELD: It might be an idea, and obviously this is not for you, but you might take it up in your discussions with the Office for the Not-for-Profit Sector, that they might have a role given their perhaps more frequent and regular engagement with the voluntary sector there and Fair Work Australia than Safe Work Australia has.
Mr Hoy : One of the things we have discussed with Volunteering Australia is to make sure that we do not cut across their normal methods of providing information and guidance.
Senator FIFIELD: The Office for the Not-for-Profit Sector as well in their new role.
Mr Hoy : Yes.
Senator FIFIELD: I will leave it there, Chair.
Senator FISHER: May I ask a question at some stage?
CHAIR: Yes, of course you can when you get the call. It is good of you to bring it to my attention instead of just jumping in. Mr Hoy, just in case there is a beat up of this issue in the press tomorrow, how do people actually get some information about what may apply to them or what may not apply to them?
Mr Hoy : They go to our website or they can ring up our hotline, which is on the website.
CHAIR: What is your website?
Mr Hoy : It is www.safeworkaustralia.gov.au. We have a dedicated site there. They can hit on that and it will take them to the material. We also have a dedicated telephone number, which I will provide you when one of my colleagues gives it to me, and that is where they should go for information. The committee might be interested to know that, since we set up the hotline and emails—there is an email address—on 23 January, we have had 76 inquiries: 17 emails and 59 calls. Most of those were asking whether an organisation was covered. We have been able to deal with those issues.
Senator FIFIELD: Did you say that was as of the 23 January?
Mr Hoy : Since 23 January, which was when we established the dedicated site and the hotline. That is the number of inquiries until today.
Senator FIFIELD: Why did you establish the dedicated site?
Mr Hoy : It was an initiative that came out of the round table with Minister Shorten. I now have the number: it is 02 6240 4990.
CHAIR: Thank you. Senator Fisher.
Senator FISHER: Thanks Chair. I am sorry if I missed this. Does the government have any intention at this stage of establishing some sort of grant program, or whatever the government might call it, to fund business organisations and/or unions to run educational sessions to help the business community and the workforce come up to speed with this legislation—something not unlike the monies granted to employer organisations, in particular unions, for the Fair Work Act. Or does the government see that as a role for the state governments rather than it in this case?
Mr Hoy : Are you are addressing that to me or the parliamentary secretary?
CHAIR: I think it is to the parliamentary secretary, surely.
Senator Jacinta Collins: This issue was raised, if I recall, during the discussion on the bill. My recollection of that was that at this stage it is a matter for the states and territories, because they are most familiar with the circumstances from which they are moving. One of the suggestions made at that time was that there be some coordinated website representation of that as well. I would take Mr Hoy's advice further on where it has moved since then.
Mr Hoy : In our specific responsibilities, we do not have any grants money or program. I can say, and this is something you should direct to the department, the department does pay ACCI, Ai Group and the ACTU money to participate in Safe Work Australia activities. I can tell you that some of the jurisdictions have actually been funding some organisations to provide the assistance you mentioned. We are responsible for coordinating all the material on our website. But then it is a matter for individual jurisdictions to pursue that in their own jurisdictions.
Senator FISHER: Of those some organisations, who are they?
Mr Hoy : I am aware that in New South Wales, for example, they provided money to the surf lifesaving association. But I do not have a complete list of that.
Senator FISHER: Is that a question for the department?
Mr Hoy : No, what I was saying is that the department provides funding to ACCI, Ai Group and the ACTU. They have been doing it for a number of years and, as far as I know, it is still ongoing. That is to support their activities and Safe Work Australia.
Senator THISTLETHWAITE: Were some of the provisions of the model legislation, when it was adopted by some of the states, varied?
Mr Hoy : There was one minor variation in the upper house in New South Wales, which the government in the lower house subsequently chose not to overturn. It related to a limited right of prosecution.
Senator THISTLETHWAITE: Have the specific provisions that have been the subject of discussion this afternoon relating to volunteer organisations in the states where the model of the legislation has been adopted not been amended?
Mr Hoy : That is correct.
Senator THISTLETHWAITE: Would it be the case that the direct contact point for advice and guidance for the majority of organisations that do employ volunteers would be their relevant state safe work authority, or whatever the equivalent is?
Mr Hoy : It is the state regulators that have been involved in this, yes.
Senator THISTLETHWAITE: Are you aware if any of those state regulators have provided any information on their websites or done any mail-outs to these voluntary organisations?
Mr Hoy : I do know that they have been talking to all of these organisations at the state level in a similar way that we are pursuing these groups at a national level.
Senator ABETZ: Let us have a change of pace and go from the volunteer sector to the construction sector and the model health and safety regulations as they apply. Has Safe Work Australia received any representation from the National Generators Forum?
Mr Hoy : Yes we did. We have had a series of discussions with them.
Senator ABETZ: What has that series of discussions produced? Any change or not?
Mr Hoy : It did not lead to any change in the regulation.
Senator ABETZ: That is what I was fearing. At the time of the discussion were these already finalised regulations or draft regulations?
Mr Hoy : They made representations to us during the drafting. They have subsequently reapproached us—after the regulations were finalised.
Senator ABETZ: And they are now covered despite having a proven industry-sector-specific focus previously? They are a pretty important sector to our economy. They seem to have a proven record. One wonders why this sort of nearly—I was about to say 'manic determination', but I will just say 'determination'—to get a one-size-fits-all for a whole lot of different groups or sectors within the community, some that previously had specific provisions specifically for their sector.
Mr Creaser : My understanding is that the issue is predominantly around the capture of construction work that is carried out on sites where power is generated, rather than the actual total work that is carried out there. The construction regulations do capture that work as they did before. They were picked up under the previous NOHS national standard for construction work.
Senator ABETZ: But it obviously extends to the situation now.
Mr Creaser : No, the current regulations are based largely on the scope of the NOHS national standard for construction work, which was endorsed in 2005 by the National Occupational Health and Safety Commission.
Senator ABETZ: But until these regulations was there a different regulatory regime for this particular sector?
Mr Creaser : Without looking at particular regulations in place in the various jurisdictions it would be fairly difficult to answer that. But, yes, it could have varied across jurisdictions, depending on the extent of uptake of that national standard at the time.
Senator ABETZ: Going to the diving sector and, in particular, representations that you would have received from the Tasmanian Abalone Council and also the Abalone Council Australia. Are you aware of those representations?
Ms Ross : Yes, we are.
Senator ABETZ: You received a relatively detailed letter first of all indicating that they were never consulted in relation to this process. How does this come about? It is all very easy, with great respect, for big government in Canberra to sit in with big unions—but in this case big employer organisations—asserting that they represent people yet they have no contact whatsoever with a particular sector that is hugely adversely impacted.
Ms Ross : We did consult with them.
Senator ABETZ: With whom?
Ms Ross : With the Abalone Association Tasmania.
Senator ABETZ: When?
Ms Ross : We consulted with them when we received public comment from them, and we are continuing to consult with them. We are meeting with them next week or the week after, I think. We are speaking at the abalone board meeting. Also, we are developing a code of practice and we are continuing to work with them on the development of that code of practice.
Senator ABETZ: What is the state of it? Is it a draft code of practice?
Ms Ross : We are drafting it in consultation with industry sectors.
Senator ABETZ: But there was a draft code of practice that was sent out?
Ms Ross : We developed a draft code of practice not to go out for public comment but to go out to the industry for this very reason: so we could consult with the industry on the development of that code.
Senator ABETZ: They say that there is nothing in the draft regulations that indicates any degree of understanding or consideration of safe dive practices within the commercial abalone dive fishery sector. So are there draft regulations?
Ms Ross : Yes, there are draft regulations concerning diving.
Senator ABETZ: When did the draft regulations come out?
Ms Ross : The draft regulations were signed off by ministers.
Mr Hoy : They were model regulations approved by ministers late last year. In those jurisdictions who have implemented the legislation they are in place, but they are called diving regulations. The point that Ms Ross is making is that we are working with the abalone industry to assist them to develop a code or guidance to cover their particular issues.
Ms Ross : The draft regulations went out for public comment last year—it closed in April last year. But we met with them during the public comment period to discuss their concerns, and the regulations-
Senator ABETZ: When was that?
Ms Ross : That was January or February.
Senator ABETZ: January 2011?
Ms Ross : Yes.
Senator ABETZ: I am quoting from the Tasmanian Seafood Industry News, December 2011/January 2012, in which they were saying:
It is now November 2011 and not surprisingly, I have had no formal response to the above letter from SWA. I sent a similar letter in my capacity as Chairman of Abalone Council Australia on behalf of all five abalone-producing states who are looking down the barrel of this legislation. SWA have totally ignored my letters and the recommendations contained within them.
Are you saying that you met with this Mr Dean Lisson, Chief Executive of the Tasmanian Abalone Council in April?
Ms Ross : I did not meet with him personally. We are now in contact with him.
Senator ABETZ: Now, but not previously, when you were developing the draft and after the draft was made public. When did you meet with representatives of the abalone industry?
Mr Hoy : We will just check that.
Ms Ross : It was in WA. We would have to go back and check exactly who we met with, but we did meet with them during the public comment period to discuss the concerns raised in their submissions.
Senator ABETZ: It is asserted that no dive fishery industry organisation has been consulted and we have, as I understand it, once again the attempt to get a one size fits all, with divers that operate I think on oil rigs et cetera somehow being linked in with, in effect, commercial fishermen who dive for abalone.
Mr Hoy : We will just need to check the sequence of meetings with them.
Ms Ross : But, Senator, that is not how the regulations actually do operate, and working on the code of practice is to clarify the operation.
Senator ABETZ: So there is a specific code of practice for the Tasmanian abalone industry—
Ms Ross : Yes.
Senator ABETZ: and it applies to diving operations using surface supplied breathing apparatus within the Tasmanian abalone industry. That was implemented in 1997, and 122 divers are operating under the code. There have been no instances of breaches of this code reported to Workplace Standards Tasmania.
Ms Ross : We are aware of that code, and it is one of the codes we will be drawing on to develop the national code.
Senator ABETZ: One can assume, therefore, that the draft code may well be substantially amended to take into account the concerns of the abalone sector?
Ms Ross : It is being drafted to take into account the concerns of the abalone sector.
Senator ABETZ: When was it drafted, did you say?
Ms Ross : We are drafting the code. The regs have been finalised. We are in the process of drafting a code of practice.
Senator ABETZ: Sorry, I have been mixing that up in my mind. Thank you for that clarification. When was the draft code put out?
Ms Ross : The draft code has not yet been to our members. The draft code has been circulated to industry sectors like the abalone sector for comment, but it still has not been finalised to the extent that it has actually been distributed to our members.
Senator ABETZ: Your members being Safe Work Australia members?
Ms Ross : Yes.
Mr Hoy : Yes. The process is that, if a code is developed, it then is signed off by Safe Work Australia. Then, to make it a model code, it needs to go the ministerial council.
Senator ABETZ: When you told me that something was developed in April last year, that—
Ms Ross : That was when the public comment period closed—
Mr Hoy : On the regulations.
Ms Ross : on the regulations.
Senator ABETZ: On the regulations—right.
Mr Hoy : That is when this organisation and others made comments, which led us to then have the conversations, discussions, with each of those groups.
Senator ABETZ: Have you responded to their correspondence?
Mr Hoy : I would just need to check that. I cannot remember the specific—
Senator ABETZ: The assertion here is that 'in response to an email that I sent to Safe Work Australia on 9 March 2011, I received an email reply on 17 March that, amongst other things'—and then that was the response. I cannot quite pick it up. He is complaining that it is now November 2011 and he has had 'no formal response to the above letter'.
Mr Hoy : I will take that on notice and I will check.
Senator ABETZ: If you could do that, that would be most helpful. The sector in Tasmania has spent a lot of its own money in developing its own code of practice, and one wonders why that wheel needs to be reinvented.
Can I move to other codes of practice. I understand that, by majority, three further codes of practice have been adopted. Are they First Aid in the Workplace, Managing Risks in Construction Work, and Preventing Falls in Housing Construction?
Mr Hoy : There were six codes that Safe Work Australia agreed to in December. They are First Aid in the Workplace, Managing Risks in Construction Work, Preventing Falls in Housing Construction, Managing Electrical Risks at the Workplace, Managing Risks of Hazardous Chemicals, and Managing Risks of Plant in the Workplace. The process now is that they will be submitted to the ministerial council and if the ministerial council approves them they will then become model codes. And then it is up to the jurisdictions to adopt them.
Senator ABETZ: Is it correct that the first three that I mentioned were only endorsed by a majority?
Mr Hoy : I would just need to check the minutes on that.
Senator ABETZ: And what does 'majority' mean? Is that 50 per cent plus one?
Mr Hoy : No, under the Safe Work Australia Act, decisions are made by a majority of voting members present and voting. Fifteen actually attend the meetings, but only 14 vote because I am a non-voting member. In addition to the simple majority, it needs to be two-thirds of the jurisdictions present voting, so you need to get six out of nine. I can recall, certainly in the case of some of these, that Victoria did not vote because of their particular position in terms of implementing the legislation. I would need to check the minutes.
Senator ABETZ: If you could—to let us know who either deliberately abstained or voted against the adoption of those three codes.
Mr Hoy : I think that three were actually done at the meeting, from memory, and the other three were subsequently dealt with out of session.
Senator ABETZ: That is right, yes, but I am told that those three were endorsed by a majority.
Mr Hoy : I will accept what you say. I will just need to check the minutes.
Senator ABETZ: Yes, can you check the minutes in relation to that. Can I go to the bullying code of practice, Preventing and Responding to Workplace Bullying, and the draft. Is there anything in this draft or anything that might actually tell the employees of the right of employers to deal with bullying?
Mr Hoy : Can I just explain where that particular proposed code is up to. It was one of a range of codes that were released for public comment. It did receive public comment. Safe Work Australia has considered that public comment and is revising the document to take into account public comment. I do not actually have it in front of me, but one of my colleagues may be able to assist you.
Senator ABETZ: There are a number of aspects. Safe Work Australia drafts these documents; is that correct?
Mr Hoy : Yes, but that particular one was actually drafted based on existing codes in a number of jurisdictions: Victoria, ACT and New South Wales.
Senator ABETZ: That would have been drafted under previous Labor administrations.
Mr Hoy : I do not know under whom it was drafted. I am just saying that—
Senator ABETZ: Can you tell us, then, on notice, the codes that were relied upon for this and when those state codes came into being? Once we know the dates of that, we can then put two and two together. Some of the issues have been explained to me—and I confess I could not believe it until I read it, word for word. We only have 15 minutes left, but as I understand it, for example on page 5, 'Impact of workplace bullying', you could have a worker who witnesses unintentional bullying with no impact on the worker still being able to claim collaterally under this code.
Mr Hoy : As I said, it was a draft code for public comment. It is under revision. In the meantime, in the particular jurisdictions, existing guidance material, if it is available, will still apply—and presumably in Victoria their existing code will apply.
Senator ABETZ: You cannot just walk away from it, because it is a draft under the name of Safe Work Australia, so, with respect, it must be seen by Safe Work Australia as best endeavours to put something up that is reasonably sensible for consideration.
Mr Hoy : Yes, that is correct.
Senator ABETZ: And that draft code includes potential circumstances where you can have unintentional bullying or where you can have unintentional bullying causing no impact on the actual worker but somebody witnessing it can claim it has had an impact on that them as a witness—therefore entitling them to all sorts of benefits. It really seems to be stretching credulity to allow those sorts of situations to even be canvassed as a serious proposition, Mr Hoy.
Mr Hoy : I hear what you say.
Senator ABETZ: Does this code deal with bullying by, let us say, a union official in relation to the issue of freedom of association? We heard previously from the Office of the Australian Building and Construction Commissioner that issues of freedom of association are still issues, at least in the building and construction sector, where attempts are made to bully people into membership. Is that dealt with in this draft code?
Mr Hoy : The answer is no.
Senator ABETZ: Funny that. Why not? It is not an issue? Why is it not dealt with? We know it exists—the Office of the Australian Building and Construction Commissioner tells us it exists. It would be a funny thing if it only existed in the building and construction sector. Even if it did exist only there, as I understand it this bullying code would cover all sectors, would it not?
Mr Hoy : The other thing I just need to remind you and the committee of is that our process is about harmonisation. It is about harmonising existing acts, regulations and codes in all the jurisdictions. It was not about starting with a blank sheet of paper and coming up with what might be new guidance in a particular area.
Senator ABETZ: But you must have made a value judgment, Mr Hoy, that the guidelines from the jurisdictions of Victoria, ACT and New South Wales were worthy of replication in this document, whereas those from certain other jurisdictions were not worthy.
Ms Ross : We did draw on other material. Victoria and New South Wales actually have a joint guide and the ACT has adopted that as a code. So it is actually the same document in Victoria, New South Wales and the ACT.
Senator ABETZ: I suggest to you—and Ms Collins may know this—that those three codes were developed whilst there were three Labor governments in those jurisdictions.
Mr Hoy : I actually have the dates of those codes. The ACT—I only have the year—was 2010. New South Wales was 2009. Queensland was 2004.
Senator ABETZ: What about Victoria?
Mr Hoy : I do not actually have anything about Victoria.
Senator ABETZ: So the chances are that it was the ACT, New South Wales and Queensland rather than Victoria?
Mr Hoy : Yes, but this table actually says—and I do not have any more information—that they had guidance on bullying and harassment in New South Wales. It was called Preventing and responding to bullying at work and was published in 2009. And it says, 'same as Victoria, working across borders.'
Ms Ross : So it is exactly the same document and the ACT have picked that up as a code. We have also drawn on South Australian guidance, Queensland guidance—
Senator ABETZ: When was the South Australian guidance developed?
Mr Hoy : I do not have a date on that.
Senator ABETZ: It is pretty obvious from what you tell me that these guidances were under state Labor jurisdictions and, surprise, surprise, there is nothing in it about bullying by certain union officials.
Senator Jacinta Collins: They are covered by the provisions of the Fair Work Act. Freedom of association provisions provide the arrangements with respect to any allegations of workplace bullying
Senator ABETZ: So no bullying can take place as a result. That is helpful to know, thank you.
Senator Jacinta Collins: No, I am not suggesting that.
Senator THISTLETHWAITE: It is a general provision.
Senator ABETZ: The ABCC has given us information previously that it goes on—
Senator Jacinta Collins: And they have been dealing with it.
Senator ABETZ: Therefore it does not exist?
Senator Jacinta Collins: No, I am not saying that. I am saying that there are measures in place to deal with such matters.
Senator ABETZ: Clearly, we can have bullying apart from freedom of association, such as how people might vote at a union meeting with a show of hands et cetera, and none of this is covered in this bullying code. Then we have—and time is running out on me—leadership styles:
Autocratic leadership styles are strict and directive, where workers are not involved in decision making …
Does that mean that the workers at Qantas should have had the opportunity to decide whether or not a new hangar was built?
Mr Hoy : I cannot comment on that.
Senator ABETZ: The problem is that it raises expectations, and if workers were to read such a thing they would say, 'Hang on a moment, we want to be involved in the decision making of whether or not Qantas has a new hangar in Sydney. That is part of my right here and Qantas' leadership style sucks.' That would be the conclusion here, whereas, as I understand it, the engineers have now raised the white flag in relation to that issue.
Senator Jacinta Collins: That is your characterisation, senator.
Senator ABETZ: It is indeed. If we go to page 8, there may be a risk of bullying when the employer says if a job is not done within a period of time they might need to bring in outside contractors to do the job. That might be interpreted as bullying. How does one run one's business if you say to workers, 'There is a particular amount of work to be done—if you guys can't do it within a certain period of time we'll have to bring in contractors to assist to get it done by the scheduled date.'? I would have thought that would be common sense.
CHAIR: I am not sure Mr Hoy can help you with hypotheticals.
Mr Hoy : I don't like hypotheticals.
CHAIR: Senator Thistlethwaite has one or two questions too, so I will have to ask you to wind up very soon.
Senator ABETZ: They are not in hypothetical situations. What is in the actual document is potentially bullying. I go to the issue of information and training, on page 13.
Mr Hoy : Page 13 of what document?
Senator ABETZ: I thought I had been referring to your draft.
Mr Hoy : Sorry; the same document.
Senator ABETZ: Yes. Page 13—Information and training:
Information to raise awareness of bullying and its impacts in the workplace may be provided in various ways, for example:
team meetings or toolbox talks
… … …
All workers and managers and supervisors should be trained to recognise and deal with bullying as it occurs. A training program should also cover:
Then it goes through a whole lot of things. Once again, it tells me that this has been developed by big government and big business. How is a small business going to be developing newsletters to its two or three employees, or put up posters in a situation where, necessarily, they might not even have a mess room because they go out on sites. I would suggest that a small business—a cafe or a sandwich shop—would not have a training program that deals with all the matters that are outlined in section 3.4. So how is this relevant to the small business? The problem is, if it is a code, they will be expected to have complied with it, and so the sandwich shop will be told: 'You didn't have team meetings and you didn't have newsletters.' Well, this cafe never had a newsletter in all its 20 years of operation. Chances are it never will. But this is best practice now—the coffee shop should be having newsletters for its employees. It just bears no relevance for small business.
Ms Ross : The issue that you are raising is one of the concerns that came out of public comment—that the code needs to be focused on big business, small business, all types of businesses. The code is undergoing revision. One of the reasons you put the codes out for public comment is to get this type of feedback.
Senator ABETZ: Yes, but where was the consideration for small business anywhere in this document before it was sent out for public comment? It is nowhere to be seen. Senator Thistlethwaite has some questions, and that will do.
CHAIR: Two minutes of questions.
Senator ABETZ: That will do me, and he can see us out.
Senator THISTLETHWAITE: On the issue of bullying, this is an area of the law, is it not, where there is increasing litigation, particularly in a number of state jurisdictions, under OH&S legislation and workers compensation legislation? That is right, isn't it?
Mr Hoy : I was going to ask you whether you were referring to work health and safety or workers compensation or just more broad criminal law.
Senator THISTLETHWAITE: Both.
Mr Hoy : I do not have any details on that. I am aware of the legislation that was enacted in Victoria, but that was not under work health and safety legislation. What applies in other jurisdictions I do not know.
Senator THISTLETHWAITE: The examples that are cited in the draft code, I think you said earlier, are derived from some of the state codes that were in existence. Is it the case that some of those examples may be in those codes because they are outlines of circumstances that have occurred in particular cases in various jurisdictions?
Mr Hoy : I think we would need to check the jurisdictions.
Senator THISTLETHWAITE: That is it. Thank you.
CHAIR: Thank you, Mr Hoy and officers, for your presentation to the committee today.
Proceedings suspended from 18:28 to 19:30
CHAIR: We will resume these estimates hearings. We will now commence questioning of the Department of Employment and Workplace Relations. Welcome to this year's estimates. Ms Paul, do you have any opening remarks that you wish to make to the committee before we commence questions?
Ms Paul : I do not have an opening statement, but I do have a correction to a question on notice which Senator Siewert asked. It is EWO686_12.
Senator SIEWERT: That is the very one I wanted to ask you about.
Ms Paul : That is a good start. In response to part of a question on notice from you, Senator Siewert, at the supplementary budget estimates relating to job seeker choice and changing jobs service providers, EWO686_12, the department advised that, in 2010-11, 292 jobseekers requested a transfer due to irreconcilable breakdown in the relationship with their Job Services Australia provider. The department wishes to advise that the correct figure is 101. The figure of 292 reflects the total number of job seeker transfers due to irreconcilable differences, not those that job seekers themselves requested.
Senator SIEWERT: Could I ask a supplementary question?
CHAIR: Yes. Before you do, Ms Paul, I am not sure when you were aware that there needed to be further clarification of that question, but the committee requires any corrections to be made immediately as they are drawn to your attention. You may have found this out only an hour ago, but, just as a general rule, I just want remind everybody that, if there are corrections to be made, they should be made immediately to the committee and not wait until estimates.
Ms Paul : I certainly appreciate that. We have done that before and we would always seek to do that. This came to our attention very recently. My apologies for that—
CHAIR: That is fine.
Ms Paul : and of course to Senator Siewert.
Senator SIEWERT: I would just like clarification. The number that you first read out—
Ms Paul : That is, 292.
Senator SIEWERT: Yes—that was the overall number. In other words, there are some that the JSAs had initiated?
Ms Paul : That is right.
Senator SIEWERT: That is how I thought it would be interpreted. Thank you for that. That is a useful clarification. For once I will start in the order of what is here, starting with JSA.
CHAIR: That will throw us out. You could start at 4.1. We will try as best we can to dispatch the officers in each of the outcomes as we go.
Senator SIEWERT: Unfortunately, some of the questions are interconnected with the JSA stuff, but I will try and behave. First, I ask about the case that was in the media a couple of months ago that resulted in the minister referring for investigation some aspects of some JSA operations. What was the nature of the investigation? How has that progressed? When do expect it to report?
Ms Parker : The minister, the Hon. Kate Ellis, issued a media release on 22 December, which I think is the one you are referring to. She talked in that about employment service providers and their claims. She outlined in that media release that she asked the department to consider whether new rules were needed. She talked about some allegations being under investigation and she announced in that that she had asked Mr Robert Butterworth to oversee an audit process. Mr Butterworth is also working with the department's audit committee, which has external representatives. We have been proceeding with that audit. Mr Parsons might outline the actual process of that.
Mr Parsons : The approach that we have taken is to do it in two phases. The first phase was to write to a sample of Job Services organisations and ask them if they would review recent cases where they had claimed the provider-brokered outcome—
Senator SIEWERT: Where they had claimed the act.
Mr Parsons : Where they had claimed that outcome. And come back to the department with an assurance or otherwise that, upon a second review of the circumstances and the documentary evidence that they held, the claim of the outcome was valid or not. The second phase for us is then to review the documentary evidence surrounding that response.
Senator SIEWERT: Okay. Thank you. I obviously have several questions emanating from that before I can go on with other questions. What was the size of the sample, the nature of the organisations and how extensive across Australia?
Ms McKinnon : We selected 14 providers.
Senator SIEWERT: What does that equate to as a percentage?
Ms McKinnon : There are 106 providers in total. Fourteen providers were selected from a broad cross-section of the providers. We want a sample size that was going to be meaningful for analysis but one that we could do in a reasonable time frame.
Senator SIEWERT: That is a little under 10 per cent, isn't it?
Ms McKinnon : Yes. The providers were selected for the audit across a range of indicators. So we did have a mix of the type of providers—not-for-profit, for-profit, large and small—and also across Australia and different labour markets. There is no inference that these providers were known to be rorting the system.
Senator SIEWERT: I would not read that into it.
Ms McKinnon : The cohort was more to get a cross a so we can identify common issues and provider-specific issues as a result of the audit.
Senator SIEWERT: Have they responded?
Mr Parsons : Phase 1 have responded. That was up last week, from memory. We then wrote to them giving them 14 days notice, which is a standard notice period for them, to furnish the documentary evidence that underpinned their stage 1 response. That does not variously expire until today or tomorrow. There were two different letters that went out. So we have not yet formally started stage 2.
Senator SIEWERT: Did any of them in response to say, 'We found a mistake,' or did they will say that the claims were okay?
Mr Parsons : We are still poring through the responses. Whilst there were 14 organisations that my colleague, Ms McKinnon, mentioned, that comprised 2,500 claims, so we are still sifting through what we have only received recently.
Senator SIEWERT: So 2,500 claims—what is that as a percentage of the total number of claims?
Mr Parsons : We chose deliberately to limit our scope to provider-brokered outcome claims only that had been lodged since 1 July last year through to, roughly, December last year. We did that for two reasons. One was that if we needed to do any follow-up inquiry with jobseekers or with employers to validate assertions or file notes whatever that the job services organisations were tabling it would still be front of mind—it would be fresh. We also did it because there was a major change to the IT system and the guidelines surrounding documentary evidence for provider-brokered outcome claims made at approximately that time—midway through last year.
Senator SIEWERT: Thank you for that, but you still did not tell me what percentage of provider-brokered outcome claims that represented.
Mr Parsons : From all providers that were selected, it was 100 per cent of their provider-brokered outcome claims.
Senator SIEWERT: I understand that. A bit under 10 per cent of the providers are subject to the audit. How many claims over that period of time would the 106 have made?
Ms McKinnon : I would have to take that on notice. I am not comfortable recollecting.
Senator SIEWERT: That is fine. I just want to have an idea. So we have a bit less than 10 per cent of the providers. I want to know what proportion of the claims that represents.
Senator BERNARDI: Can I ask a question. You mentioned that there were two distinct letters sent to the providers.
Mr Parsons : No, what actually happened was that when phase 1 came back we thought we needed to then write back and serve 14 days notice for them to provide the documentary evidence. Those letters were variously dispatched. All but one or two, I think, were dispatched on a given day. There were two letters for administrative reasons—we had the wrong address or something—that went out the following day.
Senator BERNARDI: But the substantive content of the letters was the same?
Mr Parsons : Yes, exactly the same—just a different send date.
Senator BERNARDI: I do have questions on JSA.
Senator SIEWERT: Do you have any more on the inquiry?
Senator BERNARDI: No, not on that specifically.
Senator SIEWERT: Could you remind me—because it has gone out of my head if he did tell me—when the investigation is due to report?
Mr Parsons : We are aiming to have all the analysis of the supporting documentary evidence done by March. That is an aspiration.
Senator SIEWERT: I love aspirational goals!
Mr Parsons : As I said, there could be quite a few follow-up phone calls to job seekers. I am a little uncertain because, if all the documentary evidence proves fine, March should be achievable; if there are lots of follow-up phone calls to employers and job seekers—and you would appreciate you do not always get them first call—then that may just put that deadline under pressure.
Senator SIEWERT: That takes me to my next question. You said there are two processes—you write to them, they send the letters and then you do a review—what is the process from there to validate? If they all write back and say, 'No, of course we have not made a mistake,' what is the next stage? Hopefully they all respond properly. What is the next stage to check that they have?
Mr Parsons : I referred to change in the documentary evidence guidelines that was made midway through last year. That is actually quite prescriptive about the sort of information that we require the Job Services Australia organisations to keep where they lodge a provider-brokered outcome claim. I have not seen the documentary evidence that has come in yet because, as I was saying, it is only due today and tomorrow. If that comes through and we are able to ascertain that all of the prescribed requirements are there in that gets a pass. If there is some of that missing then our first point of recourse is to try to contact the job seeker and ask the job seeker for their recollection of whether it was a brokered outcome. If we are unable to contact the job seeker or if the job seeker is unable to help us then, with their permission, we will contact the employer to validate whether there was a pre-existing relationship, which is a pre-requisite for a provider-brokered outcome. Failing all that our standard program assurance procedures says that we go back to the JSA provider with those claims that we are unable to definitively make a decision and say, 'Is there any more information you wish to tender before we pass judgment and potentially seek recovery?'
Senator SIEWERT: Thank you. You will be aware that there has been other claims about other gaming activities. I do not want to confuse things by going to the DES issue yet, but you will be aware and I did raise it last estimates that the issue around gaming has come up. There are other ways of doing the gaming I have been instructed about. Are you also looking at those claims that have been made in terms of the way other potential ways that gaming is going on?
Ms McKinnon : Part of the allegations about gaming go to star ratings. In the case of JSA a provider-brokered outcome and a provider-assisted outcome have the same weighting to the stars. So even if a provider incorrectly or mistakenly claims a provider-brokered outcome, that does not affect the star weighting.
Ms Parker : And of course the DES issues were very much about allegations that providers were gaming to get higher star ratings. That was very specific reason that there were claims being made that they were doing that. This is not the case for this.
Senator SIEWERT: So are you confident that there is no other activity that could be carried out to influence the star ratings?
Ms Parker : Are we confident?
Senator SIEWERT: That is what you are saying, though, isn't it?
Ms Parker : I suppose the answer to that is that we have very comprehensive governance monitoring contract management arrangements and most of those we went through in the DES inquiry. We rely on a whole range of mechanisms to monitor our contracts. We have contract managers. The answer is that you can never be 100 per cent confident. What you can do is put in place as many mechanisms as possible to reduce the risk. We do that very systematically. Also in cases such as that one in the media sometimes we get ex-employees or someone else saying, 'This is what has been happening,' and we look into every allegation of whistleblowing or whatever else you want to call it. We look into every allegation. We have a very robust process that we have developed over many years. There is always the possibility that something can arise, but we will deal with it.
Ms Paul : It is probably worth giving you a picture of the activity at the moment because you have had an interest in this for some time. Just to be comprehensive, at the moment we are looking at these provider brokered issues and seeing whether there is anything behind those allegations. That is basically it for JSA. That is the nature of the current issues that people have raised with us and we are looking into them. In DES, as you say, we have spoken before about sharp practices to do with influencing star ratings, as Ms Parker said. We did look into all of those and found they were not substantiated. We can go into the detail of that, if you like. Those are the two areas that we have looked at. The active one is the provider brokered one, and there is nothing beyond that at the moment.
I back what Ms Parker said about the robustness of the framework. It is a very robust framework. We monitor at site level, we have lots of checks and balances through built-in parts of the IT system, which we could explain, we survey 400,000 jobseekers every year and we require that providers have a whole lot of checks and balances that we can then go and audit, as we are now. It is a good framework and we have honed it over a long period of time.
Senator SIEWERT: Thank you for explaining that. You are doing this quite comprehensive audit now. Is such an audit regularly carried out regardless of when someone complains, because that depends on someone being a whistleblower? How often would you do this type of comprehensive audit?
Ms Parker : We regularly do these kinds of activities. One of the things we look at is our range of program assurance mechanisms. Part of that is about having national targeted projects. We survey employers, we look at data analysis and we look at the information we have in our system. We work with each of our contract managers in the states and we hone in on areas where we think there might be an issue. It might come up in one state that there appears to be an issue. Our contract managers meet as a group regularly with our national office people and they say to us, 'We think there might be an issue here. We have been desktop monitoring; we think there is a bit of sharp practice potentially.' We would then decide whether that is a local issue or a national issue, and then we would drill in. The way in which we would drill in is very similar to this. We would have spot audits. We might say to providers, 'We want you to send us in a sample of your files and reassure us that they are correct.' There are a whole range of ways in which we do this, but it is a very regular and systematic process.
Senator SIEWERT: How many times have you carried out an audit of the type of comprehensiveness that you are carrying out now?
Ms McKinnon : The provider brokered outcomes were a new feature of the model from 1 July 2009.
Senator SIEWERT: So that is 2½ years before the audit started.
Ms McKinnon : It takes 13 weeks before the first outcome and 26 weeks before the second outcome. In that time we have taken a range of actions about provider brokered outcomes, including systems changes and also guideline changes in the education of providers. That is in part in response to the contract management activity that Ms Parker referred to. There has been a sequencing of intelligence and analysis of provider-brokered outcomes. So this audit is not an entirely new thing for us.
Ms Parker : Senator, in relation to your broader question, we have some figures here that might help.
Mr Parsons : Ms Parker, I think, referred to how we have national program assurance activity and state based activity. Some figures I have here which may help you are: over the last two years the department has conducted a total of eight major program assurance reviews—they are typically the national focused ones—and, in that time, 17 state based reviews.
Senator SIEWERT: So that is through—
Mr Parsons : Through regular program assurance.
Senator SIEWERT: From what date, sorry?
Mr Parsons : The figures I have are for the last two years. I would just reiterate: the difference between a national and a state, typically, is that a state will work closely in program assurance with providers. They may see something in a site or two that looks like a non-conformance issue. They will then come back to us. We have a monthly meeting of state people and national office people. They will come back and they will say, 'We found some nonconformance, at a couple of sites, in a provider; how about we get permission to explore more widely within the provider and within the state?' If it looks like it is not isolated to one or two sites then it gets escalated to a national priority.
Senator SIEWERT: Could I assume from that that, of the 17, some have been escalated to the national level?
Mr Parsons : Yes.
Senator SIEWERT: So how many of the national ones have been escalated from a state?
Mr Parsons : To give you the correct answer I would have to take that on notice, I am sorry.
Senator SIEWERT: You will probably have to take this on notice too. This is tied up with the next question that is going on in my head, I am sorry; that's why you can hear that funny noise—that's the gears crashing! When the issue gets elevated to the national level, or gets a more state-wide focus, are we talking about one particular extensive provider, a national provider, or are you talking about a specific issue, or is it a combination of both?
Mr Parsons : All of the above.
Ms Parker : It depends on the issue.
Senator SIEWERT: How many of those various audits have resulted in people or providers having to repay, pay other penalties or in fact discontinue?
Mr Parsons : Again, I do not have that with me. I have a gross figure for the amount of money recovered, but I cannot break it down.
Senator SIEWERT: Give me that, because I might as well get that now. But if you could take those other questions I just rattled through—I am sorry, I could not repeat them—on notice, that would be good.
Mr Parsons : Okay. In calendar year 2011, $14.2 million was recovered from providers, of which about 55 per cent, so $7.8 million, was self-identified by the providers themselves. So there is quite a degree of internal quality checking that is apparent in the provider organisations themselves. The three categories that come to mind are: 'claimed in error'—so there will be a recovery in the system with a reason code of 'claimed in error'—
Senator SIEWERT: When you say 'self-identified', is it self-initiated as well?
Mr Parsons : Correct. There is another reason code called 'provider initiated', and they are analogous in my mind. I think that their genesis is just different points in time. They are in the system—there are 90 different reasons for recoveries. So those two are definitely, in my mind at least, anchored in the providers' own internal quality assurance. The third reason which comprises that proportion is a system error. Occasionally there are glitches in the system which cause claims to go through which should not go through, and we will reverse those out.
Senator SIEWERT: So, of the 14.2 that has been recovered, it was either: the system identified it, the provider had identified it, or it was a system error and they should not have got paid in the first place?
Ms Parker : There are two of them that are identified. They are just categories.
Senator SIEWERT: Do you mean that whether it was deliberate or by accident there is an error that the department has identified?
Ms Parker : There are two things the provider will do. Sometimes they might find that they have a rogue employee who is actually making claims they should not be making, and they will tell us—and many of them do tell us.
Senator SIEWERT: And that comes under employment?
Ms Parker : Yes. And other times they just make a mistake. They put in a claim that they should not have, and they will tell us.
Senator SIEWERT: So that we have a context here, perhaps you could remind me how much we spend on JSAs; 14.5 seems like quite a bit. I want to be really clear about what percentage that represents.
Mr Parsons : The figure is 14.2.
Ms Parker : It is a $5 billion system, that JSA: 100 providers, 2,000 locations, 6.5 million transactions every day, 21,400 users every day.
Senator SIEWERT: Thank you. I just wanted to make sure that I will not be leaving here with the wrong idea.
Ms Parker : It is huge.
Senator SIEWERT: If you could take those other questions about the escalation on notice, that would be appreciated.
Mr Parsons : Sure.
Senator SIEWERT: Is that the total amount that you have recovered or have needed to recover from JSA over last year—14.5 a year?
Ms Parker : In 2011, yes.
Mr Parsons : It was 14.2 for calendar year 2011.
Senator SIEWERT: I have some further questions that were provoked by answers you gave on notice in relation to JSAs. Is it okay to keep going with those?
CHAIR: Perhaps we will move to Senator Bernardi for a while, and then we will come back to you.
Senator BERNARDI: I am going to put my JSA questions on notice, because we have spent half an hour on this and we officially have only half an hour on the program. I know it can be extended but there is a whole range of other areas I want to explore. But I would like to talk about work experience activities and Work for the Dole. What percentage of job seekers are undertaking a work experience activity currently?
Ms McKinnon : I can give you the number of work experience placements either at a point in time or over the life of the contract.
Senator BERNARDI: It might be easier to deal with a point in time.
Ms McKinnon : I have it broken down by stream and have to do some maths in my head, which is unfortunate.
Senator BERNARDI: Are you able to table that broken down by stream? And then we can do the maths ourselves.
Ms McKinnon : Yes, that is fine.
Ms Parker : Yes.
Ms Paul : Do you want us to run through stream by stream?
Senator BERNARDI: No. The streaming question is not that important. I am actually interested in the total number who have undertaken work experience activities and how many are undertaking a training course as part of that.
Ms McKinnon : So all work experience placements on 30 November? There were 162,403 work experience placements. On 30 November, there were 82,024 doing non-accredited vocational training. There were also 20,627 doing non-vocational training.
Senator BERNARDI: How many of these job seekers had more than one training course funded through the employment pathways fund?
Ms McKinnon : We would have to take that on notice.
Senator BERNARDI: Can you give me a breakdown of the certificate level qualifications funded by the employment pathways fund?
Ms McKinnon : Again, we would have to take that on notice. The system does not in fact record the certificate level.
Ms Paul : We will have a look at that and see what we can find.
Senator BERNARDI: You have been very helpful.
Ms Laker : The system records details that providers enter and it is not necessarily listed by certificate level. One of the complications for us is that it is a field of data that providers enter for each individual job seeker. It is not necessarily possible for us to collate by certificate level how many courses job seekers have done.
Senator BERNARDI: Can you give me the total expenditure then on training courses funded under the employment pathways fund for the last 12 months?
Ms McKinnon : So 22 per cent of transactions relate to a training course and the expenditure as at 30 November is $311,388,000.
Senator BERNARDI: I did ask you for the breakdown at 30 November, and you have agreed to provide that. If you can table the same details over the course of the program, I would appreciate that as well. If I can jump to Work for the Dole for a moment, how many job seekers are currently undertaking Work for the Dole as their work experience activities? I would like them over the life of the program, too.
Ms McKinnon : On 30 November, there were 10,315 job seekers undertaking Work for the Dole. For the entire period of Job Services Australia—so from 1 July 2009 to 30 November—there were 72,496.
Senator BERNARDI: What is the pool of people eligible for Work for the Dole? If I recall at the last estimates, I was given a figure of around 120,000 or 121,000.
Ms Parker : You mean those who were in Work for the Dole, or who were eligible?
Senator BERNARDI: Those eligible for Work for the Dole.
Ms Parker : Any job seeker.
Ms McKinnon : 706,890.
Senator BERNARDI: Where am I getting the 121,000 from? Don't tell me I am making it up.
Ms McKinnon : It could be, and is likely to be, job seekers who are actually in the work experience phase. After 12 months of service, a job seeker enters the work experience phase, but job seekers at any time can choose to do training or Work for the Dole.
Senator BERNARDI: Thank you for that. I appreciate that. Would you be able to give me that figure, please.
Ms McKinnon : We would have to take that on notice.
Senator BERNARDI: The figure must be available somewhere. Would it be possible to get it tonight?
Ms Paul : We will look for it; that is fine.
Senator BERNARDI: Is the department able to provide a breakdown on the number of activities and participants by state and territory?
Ms Paul : In Work for the Dole or in work experience broadly?
Senator BERNARDI: In Work for the Dole.
Ms McKinnon : Certainly, Senator. On 30 November we were over the life of the contract.
Senator BERNARDI: Let us deal with 30 November. I will ask you to provide the life of the contract too, if it is easy. Do you want to do it tonight, or do you want to—
Ms McKinnon : I can do both now. In the ACT on 30 November there were five job seekers in Work for the Dole and 139 of the life of the contract. In New South Wales on 30 November there were 3,459 and 25,449 over the life of the contract. In the Northern Territory there were 139 on 30 November and 928 over the life of the contract. In Queensland there were 2,435 on 30 November and 18,171 over the life of the contract. In South Australia there were 1,008 on 30 November and 6,532 over the life of the contract. In Tasmania there were 507 on 30 November and 2,939 over the life of the contract. In Victoria there were 2,018 on 30 November and 14,138 over the life of the contract. Finally, in Western Australia there were 744 on 30 November and 4,200 over the life of the contract.
Senator BERNARDI: Thank you. Would you be able to break down by state as well the figures that you have undertaken to get me about the people who relate to the 121,000 or something that I said before?
Ms McKinnon : Certainly.
Senator BERNARDI: Can you tell me what the average duration is that a participant spends in a Work for the Dole activity?
Ms Laker : Senator, could you ask that question again?
Senator BERNARDI: Could you tell me the average duration that a participant spends in a Work for the Dole activity?
Ms Laker : It is quite variable. There is no fixed requirement for the length of a Work for the Dole project, and many JSA providers deliver Work for the Dole on a sort of rolling basis—people do it for a certain period, and other people may do it for a longer period—so we will have to take that on notice.
Senator BERNARDI: There would be an average. If you could provide it, I would appreciate that.
Ms Paul : Perhaps we can give you a sense of the range too. An average might not mean much if the range is really wide.
Senator BERNARDI: Very good, Ms Paul
Senator SIEWERT: Could you also break it down into Aboriginal and non-Aboriginal clients? Is it possible to do that?
Ms Laker : We will certainly try to do that for you.
Senator SIEWERT: Thank you.
Senator BERNARDI: I understand that funding finishes at the end of this financial year for Green Corps. Is that correct?
Ms Laker : Can I just clarify that you are speaking about the National Green Jobs Corps?
Senator BERNARDI: That is the one—the one that finishes on 30 June.
Ms Laker : Yes, Senator.
Senator BERNARDI: It does finish on 30 June?
Ms Laker : That is correct.
Senator BERNARDI: That is consistent then—we are on the right page. How many people are affected by this? How many people are participating who will no longer be able to participate in this program?
Ms McKinnon : The NGJC was a time-limited program in response, in part, to the global financial crisis. It commenced on 1 January 2010 and was designed to deliver 10,000 training programs over two years.
Senator BERNARDI: How many are currently in it?
Ms Laker : We are still compiling final figures, because new participants to the program ceased on 31 December and providers have to give us monthly reports for us to calculate that information. We expect that the final number of places that were provided will be 9,857. We are clarifying that with providers. There are a couple of areas in their reports which we will correct, but it is in that vicinity.
Senator BERNARDI: I will accept the 9,857, give or take a few. No new participants have been entered post 30 December. Is that what you are telling me?
Ms Laker : That is correct. The program closed to new participants on 31 December, but because the program itself delivers a 26-week placement those people will carry through to 30 June.
Senator BERNARDI: That is no problem. After a 26-week placement, have you tabulated how many people have actually entered into employment as a result of or subsequent to the Green Corps training?
Ms Laker : If I may clarify before I provide you with figures, there were 10,000 places in total which could be provided but there were a different number of participants, so each place may have had more than one participant. If, for example, a participant commenced and then ceased, the provider was able to put a replacement participant into that place to get the best use out of the program.
Senator BERNARDI: Let's go back to that 9,857 figure.
Ms Laker : That was the number of places.
Senator BERNARDI: So you nearly achieved the goal of the 10,000 places.
Ms Laker : Yes, but there were more participants than that.
Senator BERNARDI: How many participants were there?
Ms Laker : The figures I have are to 30 November. In total, 12,416 young people commenced NGJC.
Senator BERNARDI: How many completed it?
Ms Laker : At that point in time, obviously, some people would still have been in the program and some would have completed. On that date, of those 12,000, 1,883 participants were still continuing. Of those who had graduated from or left the program because they had, for example, gone on to further study or gone to a job, there were 2,588 who had graduated—that is, completed; and there were 1,807 who had what we call an effective exit, which means they had gone to employment or to other education and training but may not have completed the full 26 weeks of the program.
Senator BERNARDI: Could I clarify other 'education or training'. Does that include an alternative government program such as Work for the Dole or something like that?
Ms Laker : No, but it could include another government training program—for example, a language, literacy and numeracy program—or they could have gone on to TAFE or started formal study. So they have not just gone to different work.
Senator BERNARDI: You understand it may only be a subtle nuance, but it could significantly affect the assessment of success whether someone just goes into another training program rather than a particular external course.
Ms Laker : By speaking of an effective exit we are talking about someone who has gone into employment or into some formal training—a certificate course or possibly a literacy program.
Senator BERNARDI: So not someone who just did not like Green Corps and decided they wanted to go and do language training or literacy or something?
Ms Laker : No.
Ms Paul : So they have not just moved sideways.
Senator BERNARDI: That is the expression, thank you.
Ms Laker : And 6,138 participants were other exits. So either we have no specific reason in the system for the exit of the participant or the young person has decided not to continue in the program.
Senator BERNARDI: What happens to those young people who decide not to participate in the program? Do they have to go into another experience?
Ms Laker : If they are a job seeker on income support and they have participation requirements, yes, they would need to go back to their Job Services Australia provider, or their disability provider if that is where they were being serviced, and they would be required to then continue to participate through that mechanism. However, I should point out that the NGJC program was open to a range of eligible young people, not just people on income support. So, if they were not on income support and being serviced by an employment service provider, we may not necessarily know where they have gone on completion of the program.
Ms Paul : Because it was a stimulus program.
Ms Parker : If they do have participation requirements and they are not turning up and they drop out, compliance action is taken as well. They can lose their income support.
Senator BERNARDI: Thank you. I will put the rest of my questions in that area on notice. You have been very helpful; I am liking this.
Ms McKinnon : At 30 November 2011 there were 112,027 job seekers in the work experience phase.
Senator BERNARDI: And did you tell me how many are on work for the dole?
Ms McKinnon : It was 10,315 on 30 November.
Senator BERNARDI: That was the number that were not eligible, but there was another defining criterion for people who had to undertake a work for the dole program. Was that the 112,000?
Ms McKinnon : The 112,000 had a work experience requirement.
Senator BERNARDI: And that could be met through work for the dole. So there are 10,000 of those in work for the dole?
Ms Parker : Seven percent of work experience are work for the dole.
Ms Paul : I think you know, because I think we have said it before, that the menu of activities which can comprise work experience is quite broad now—it is much broader than it was under the job network. So work for the dole is just one possibility in terms of what people can do for work experience. They can do all sorts of other things as well.
Senator BERNARDI: It is a great term that—'menu of activities'. It sounds like a restaurant. I will put my other questions on notice. Thank you for being very helpful in clarifying some questions.
Senator Jacinta Collins: It is always good to help.
Senator BERNARDI: I was not referring to you, Senator Collins, I was referring to the officers!
Senator SIEWERT: I want to go back to JSA and I expect my questions will go into some other outcome 4 matters as well. I refer to the question EW0700_12, where I was asking a whole series of questions around long-term unemployed people. One of the issues I was exploring was the employment pathway fund and what it can be used for. You have given me some answers. I have had a number of people approach me recently raising concerns about the use of that particular fund, so I want to pursue it further. In answer to question 3 you say the use of the fund is at the discretion of the JSA providers. It has been suggested to me that the providers are not necessarily using it for the people it was provided for and they are cherry picking to use it to help people they think are more likely to get a job. I have had that through separate places across Australia, so it is not even from the same state, where people could be talking to each other. It is not to say that they do not cross Australia, but I have actually had it raised with me in completely different situations. How do you ensure that that fund is being used appropriately? How do you stop it being used for people it is not supposed to be used for and make sure it is used in the proportion it is provided for and for the people who need it?
Ms McKinnon : The position that it is being used for is job seekers that the provider thinks are most likely to get into employment. One of the things we find encouraging in JSA is that, of the more than one million job placements that have been recorded, 38 per cent are for stream 3 and 4 job seekers. Job Services Australia is heavily weighted towards helping the most disadvantaged job seekers, and the results are that they are getting strong results for disadvantaged jobseekers. That usually correlates to expenditure on EPF for those job seekers to assist them to overcome barriers to employment.
Senator SIEWERT: Are these for 26-week outcomes? It is the 38 per cent?
Ms McKinnon : Yes, that is the job placements.
Senator SIEWERT: Which outcomes are they—26-week outcomes?
Ms Parker : Yes.
Ms McKinnon : Since the beginning of the JSA contract stream 4, if we just take the most disadvantaged job seekers, they have achieved 162,300 job placements. During that same time period, there have been 60,800 13-week outcomes and 30,200 26-week outcomes.
Senator SIEWERT: Just to be clear: when you talk about 162,000 placements, that is in the job?
Ms McKinnon : Yes.
Senator SIEWERT: So how many 26-week outcomes do we have?
Ms McKinnon : For stream 4 job seekers, it is 30,200 26-week outcomes achieved.
Senator SIEWERT: Over what time period is that?
Ms McKinnon : Since 1 July 2009.
Ms Paul : Do you want stream 3 as well? They are also highly disadvantaged.
Senator SIEWERT: Yes, please. I was going there anyway. I would like it broken down into Aboriginal and non-Aboriginal job seekers, please. To be fair, I have a whole lot of other statistics that I want to ask for, but I will ask for them on notice.
Ms Parker : While Ms McKinnon is looking for that—the actual payment structure, outcome structure and star rating system is very much geared towards providers working with the most disadvantaged job seekers. They get the highest fees for that. They get the highest star ratings for that. The whole system is set up in that way. If you look at our figures on the average spend per job seeker in stream 4, the average spend per job seeker out of the EPF in stream 4 is higher than for any other stream. It actually goes up logically in order. For stream 1, we are spending about $250; for stream 2, it goes up to $770-odd; stream 3, $1,100; and stream 4, $1,300. They are actually spending it as they are supposed to be spending it.
Senator SIEWERT: How do you audit that?
Ms Parker : We absolutely check every dollar they spend. We are able to tell what they are spending on training, what they are spending on clothing, what they are spending on bus tickets—
Senator SIEWERT: Per person?
Ms Parker : We can tell you by stream.
Senator SIEWERT: They have to record it against the stream, not against the person?
Ms McKinnon : Most EPF expenditure is reported against a job seeker and therefore by the stream, because that is how we think about the job seeker. There is a proportion of the EPF which, for administrative reasons we call 'batch'. If the provider buys 300 bus tickets, that is not accredited to a job seeker. There is another category for work experience. If the provider runs a group activity, we do not require them to assign that to a job seeker—for reasons of administration. But if a job seeker undertakes the training course, that is held against that job seeker and we know that job seeker's stream, which is how we can tell you what the training expenditure is by stream.
Ms Paul : Ms Parker's answer has actually answered your concern. The concern you were expressing was that people are saying to you that they are worried that a provider is favouring the easiest to help, not the hardest to help. The figures Ms Parker has just given you put a lie to that. We are always interested to know if providers are not targeting streams 3 and 4—the hardest to help—but the system is clearly working as it should overall and—
Senator SIEWERT: Do you audit these figures?
Ms Parker : Yes, we do.
Ms Paul : In part in all the ways we have described before—through automatic systems, through our own audits, through IT approaches and so on. We are getting the results we hope for in moving from Job Network to Job Services Australia and putting a lot more incentive in the disadvantaged area, but it is also reflected in their star ratings. There is really quite a powerful feedback loop to the provider, because they simply get more points if they are helping the hardest to help. That is not to say that it is perfect everywhere, but clearly the overall figures are showing that it is working as it should as a whole system. That is really very important. We are very pleased with that outcome.
Senator SIEWERT: I will go back to the people who are telling me this and see what—
Ms Paul : We are interested. By all means, please do direct them to us.
Senator SIEWERT: As I have said, I have not had this just from Western Australia, for example. I get around a bit. It is a consistent story that I am hearing.
Ms Parker : In terms of your question about how do we know, the providers are required to keep documentary evidence of what they spend. They put it in the system, and I think what you are saying is that they could just say that they are doing a training course, how would we ever know. Well, they are required to enrol the student, they are required to keep evidence of that, they are required to show what they have achieved, if they spend money they are required to keep receipts and show that, and we audit that. They are required to keep very good records.
Senator SIEWERT: Okay. Thank you.
Ms McKinnon : For Indigenous, you would like all streams or stream 3 and stream 4?
Senator SIEWERT: All streams. I will get you to take it on notice so I am not taking up people's time while I am scribbling down figures. In the answer to question 0779.12 you gave me a table from July 2009 to July 2011 which had the various stream outcomes. If you could give me a table that is broken down like that, but obviously with the most up-to-date figures, and against Aboriginal and non-Aboriginal, that would be appreciated. It sounds like somebody has got it there.
Ms McKinnon : Yes, we can take that on notice.
Senator SIEWERT: Thank you. I also want to go to another answer to a question that you gave me breaking down the compliance data against vulnerability indicators?
Ms Parker : The number?
Senator SIEWERT: I beg your pardon. It was 0684. I stupidly did not ask for you to break it down into Aboriginal and non-Aboriginal. They are actually for the financial year. Could I have that broken down into Indigenous and non-Indigenous. But I specifically note that the highest number of people in noncompliance are those with a psychiatric or a mental illness. We know that this confirms some of the other data, and that is that there are a lot of job seekers out there who have a mental health issue and that they are also the ones with the highest rate of noncompliance. I am wondering, therefore, what you are doing about it. There are clearly some high stand-outs such as drug and alcohol dependency, there is cognitive impairment and there are issues around illness and homelessness. So all those things that we know cause problems are still causing noncompliance.
Ms Parker : That is right. I have mentioned before that our providers get higher service fees and outcome fees for dealing with job seekers with the most disadvantage, and these job seekers would fall into that category.
Senator SIEWERT: I appreciate that, but we are still getting those high numbers.
Ms Parker : Yes, and they are still required to participate. They still are required to show up and do the activity, and the provider will work with them. Unless they have a doctors certificate or exemption, they will still be required to participate. So these will not be including those who cannot participate, who have been assessed as such by a doctor.
Ms Paul : So these would be people who have been assessed as being able to participate even though they have that particular vulnerability.
Senator SIEWERT: Yes, by somebody who does not have expertise in, for example, mental health.
Ms Parker : No.
Ms Paul : There is quite wide use of allied health and other health professionals here.
Senator SIEWERT: So every time someone with a vulnerability indicator against mental illness does not turn up, is a no-show, they always then go to somebody with allied health experience to ask them whether they think that they—
Ms Parker : Not each time, but certainly when they are first assessed, and a provider can ask for a reassessment if they believe that they are new circumstances, that something has significantly changed for the job seeker or they have a doctors certificate.
Senator SIEWERT: Or they are actually having an episode—
Ms Parker : Yes, all of those.
Senator SIEWERT: and potentially do not end up at the doctor's for quite a period of time.
Ms Parker : That is right. So the provider can ask for a reassessment, and that is done by an allied health professional through our Department of Human Services. If the job seeker has a certificate, obviously they do not have to participate if that certificate covers them. There is a lot of evidence that says that for people with multiple disadvantage working is good. Employment is a positive thing and participating in society and in work is a positive thing.
Senator SIEWERT: I am not arguing that it is not, but it is not a positive thing when you are getting your income support cut all the time because of your mental illness.
Ms Parker : No—absolutely.
Senator SIEWERT: I have broken down the figures. I asked for the figures and you gave them to me, broken down against state and against region for non-show and for eight-week NPP. Thank you for that. It is very useful information in terms of the breakdown between Indigenous and non-Indigenous people. I notice that there is a much higher proportion of Indigenous people in non-compliance. At risk of traversing the same ground, do you undertake any processes beyond what is already in place to start to try and address that issue? We can traverse this on Friday.
Ms Parker : I think the answer comes back to, again, our providers, Centrelink and DHS, and the fact that there are quite a lot of measures to assist Indigenous job seekers in particular. In the disability area the government is putting in place mentors for Indigenous job seekers. As I said, our providers are trained in working with Indigenous people. We are just updating our charter so that job providers have to learn how to be culturally appropriate. There is a range of things that we are doing, including training modules for our providers. I agree that the figures are disturbing. The government is responding to that. As I said, our providers are selected because of their ability to work with these job seekers. When they put their tender in, they have to say, 'I can work with Indigenous job seekers and this is how.' There is a whole range of things that we do, including selecting good providers, and that is partly why the government goes to tender, to get the best providers.
Senator SIEWERT: Ms Parker, I apologise. I broke our unwritten rule. I know we are traversing Aboriginal employment on Friday. I do want to pursue it, but I will pursue it on Friday.
Ms Paul : I presume DHS comes on Friday. I know that DHS is doing quite a lot on trying to educate some of their clients about how to avoid non-compliance, basically, so you may wish to follow that approach.
Senator SIEWERT: Thank you.
Senator BERNARDI: Just compliance, Senator Siewert asked earlier about the letters to a number of providers requesting them to undertake a self-audit. Could you give me the number? I am sorry I missed it earlier.
Ms Parker : Fourteen.
Senator BERNARDI: Thank you. Were there any cases where a provider has made multiple false claims?
Ms Parker : We are still assessing the audit. Is that your question? Of the 14, we have just received the data and we are working through it.
Senator BERNARDI: When did you receive the data?
Ms Parker : I will ask Mr Parsons.
Senator BERNARDI: The following series of questions relate to numbers of various things.
Mr Parsons : You will recall that the first phase was where we wrote to the 14 providers in the employment service areas and asked them to review all their provider brokered outcome claims and tell us, after that review, whether they still maintain that they were valid claims. That came back to us at the end of January. We decided to, as I said before, write to them and say, 'Now can we have the documentary evidence so that we can validate your assertion?'
Senator BERNARDI: Sorry—I should have picked that up earlier when Senator Siewert was talking about it. Going back to the numbers again, how many job seekers currently have Centrelink granted exemption from JobSearch?
Ms Parker : Ms McKinnon's favourite subject, isn't it?
Senator BERNARDI: I do not want to keep people jumping up and down. It will get you fit, though, I am sure!
Ms Paul : I think it has almost become a special subject in the course of two estimates, so we could not miss answering this!
Ms Parker : That was an exemption question, wasn't it?
Senator BERNARDI: Yes, Centrelink-granted exemptions for job seekers.
Ms Milliken : Overall, there were 66,966 income support recipients at the end of November who had an exemption from the activity test or participation requirements.
Senator BERNARDI: What percentage of those were on Newstart allowance?
Ms Milliken : I do not have that information by payment type; I am sorry. I could take that on notice.
Senator BERNARDI: If you could, that would be good. How frequently are the exemptions reviewed?
Ms Milliken : It depends on the nature of the exemptions. The longest ones would be 12 weeks, for serious medical circumstances, for example—the most general long ones. Others are short-term periods because they are for a serious incident that has happened to the individual. They may have some personal issues that they have to attend to. They may have an illness with a medical certificate. There are some additional longer term exemptions for principal carer parents that were introduced a couple of years ago for circumstances of domestic violence or families with large numbers of children.
Senator BERNARDI: So it is flexible according to the nature of the circumstances?
Ms Milliken : Yes.
Senator BERNARDI: And then in the extended one—Senator Siewert was nodding her head, so she clearly knows about this—
Senator SIEWERT: Yes, we have been traversing this; that is why they are smiling, because they still haven't fixed my major problem, but they are working on it!
Senator BERNARDI: How long has that been outstanding, Senator Siewert?
Senator SIEWERT: Oh, five years!
Senator BERNARDI: All right. How many job seekers are actually suspended from the case load? You should have one single sheet with all these answers on it!
Ms Parker : 164,004.
Senator BERNARDI: 164,004 have been suspended?
Ms Milliken : Of those, it is actually 50,269 who are suspended due to activity test exemptions. There are some other arrangements within the Job Services Australia case load which mean they are suspended from service for a particular reason.
Ms Parker : The exemption one is the 50,269. They have an activity test exemption for some of the reasons Ms Milliken mentioned before.
Senator BERNARDI: What percentage of the case load is that?
Ms Parker : It is 30 per cent—no, sorry, excuse me; that is incorrect.
Ms McKinnon : Of the JSA caseload, which was the 706,000, 23.2 per cent are suspended.
Senator BERNARDI: I just want to deal with compliance failures. How many job seekers recorded a compliance failure? What is the latest data you have—or the most recent, I should say?
Ms Milliken : In the September quarter of 2011-12 there were 68,324 individual jobseekers who recorded a connection failure.
Senator BERNARDI: What percentage was that?
Ms Milliken : Overall there were 78,982 jobseekers who had an applied failure, whether it was connection, no-show-no-pay, reconnection or a series failure.
Senator BERNARDI: In that quarter?
Ms Milliken : In that quarter.
Senator BERNARDI: How many of these connection failures had a valid excuse or were deemed to?
Ms Milliken : They were applied failures, so they were jobseekers who did not have a valid excuse.
Senator BERNARDI: Do you have the figures for how many connection failures there were?
Ms Milliken : There were 102,621 jobseekers who had one or more connection failures in that quarter.
Senator BERNARDI: Senator Siewert has been very helpful in suggesting that you update your list from last time.
Senator SIEWERT: Do you want it now or do you want to take it on notice, Senator Bernardi?
Senator BERNARDI: If you have it now, I would like it now.
Ms Parker : We only have the question on notice from last time. Is that what you are talking about?
Senator SIEWERT: Yes.
Senator BERNARDI: Could you update those figures.
Ms Milliken : For the December quarter, that data is currently being quality checked by the department. That is done six weeks after the end of a quarter to ensure that the majority of appeals have flowed through and decisions have been applied. That data has recently been drawn, and we are validating that data. If we take the question on notice we will be able to provide December-quarter data.
Senator BERNARDI: That would be excellent, thank you. Finally, does that data include how many no-show-no-pay failures there were?
Ms Parker : Yes, it does.
Senator BERNARDI: Does it show how many connection failures have been applied to jobseekers in the last six months?
Ms Milliken : Yes, it does.
Senator SIEWERT: Will you break it down?
Ms Milliken : Yes.
Ms Parker : So you are saying to update 0684?
Senator SIEWERT: Yes.
Senator WATERS: What was the department's involvement, if any, in the publication of Resourcingthefuture, a report of July 2010 of the National Resources Sector Employment Task Force?
Ms Paul : Knowing that I am on record, I will give it my best shot. We are not entirely sure. We think it was to do with Skills Australia, which is now in the other department arising from the Christmas machinery of government. This is terrible, because it was probably in my portfolio, but I cannot remember it. Can you let me remind myself what it was?
Senator WATERS: Perhaps you can remind yourself. I am not too sure where it is at. The report was issued in July 2010. Perhaps the portfolio change had not come into effect by then.
Ms Paul : That is okay. It would have been with us. It just does not ring a bell with me. It was 2010.
Senator WATERS: Did I say 2011?
Ms Paul : No, you did not. It is difficult to go back that far, though my short-term memory is good!
Resourcing Our Future, we think, was the informal title for the resources sector task force, which was the response to the report that Minister Gray led. If it is what I think it is, yes, we were very involved with it. We supported the task force in its work. We had a secretariat, which was made up of departmental people who worked independently to support that taskforce.
Senator WATERS: That is good. I have got some follow up questions then. In that report, it is asserted at one point:
Each additional job in the resources sector may lead to a further one to three jobs in other industries …
What do you understand to be the basis for that claim?
Ms Paul : It is probably best if I take this on notice and we can actually tell you where the research came from precisely. But, for example, in the resources sector, this would be covering the flow-on to construction. Many of the jobs in the mining sector actually are to do with construction of the local communities, of the mines themselves and so on. That is just one example of a mining community, which, as you might imagine, in a boom area creates services industry jobs as well. Whether they be in retail or other services industries. It would be that sort of flow-on that would be talked about there. Given that I am stretching my memory backwards to 2010, I can come back with some more precision on that if you would like.
Senator WATERS: I would appreciate that, particularly on how that figure of one to three was arrived at and the calculations and assumptions that lie behind that.
Ms Paul : Sure. It would have been well researched. It would have been from our own economists or from other economic research. I would be pretty confident. We can identify that for you.
Senator WATERS: Great, I look forward to that. Do you know if those underlying calculations—again, if you need to take that on notice that is fine, but I will put it to you anyway—do you know if those underlying calculations allow for the effect on employment in other areas from an expansion of mining driving up the exchange rate, driving up interest rates and driving up wages in certain areas? Does it factor in those negatives as well as those positives?
Ms Paul : I cannot answer that. I would have to take that on notice. It sounds to me like it is what I was describing, which is that it is saying that there is a positive flow-on effect to other sectors from a resources sector development, which you would expect. But as to whether it goes to other economic factors—
Senator WATERS: Whether it balances the ledger.
Ms Paul : Yes, that is right.
Senator WATERS: I look forward to as much detail on that as you can provide. Could you tell me, on notice if you are not able to here and now, why the range is so broad? Why one to three? That seems a fairly large range.
Ms Paul : Can you just read that piece again?
Senator WATERS: Yes. The quote was:
Each additional job in the resources sector may lead to a further one to three jobs in other industries …
Ms Paul : It is just saying that you get one for one, one for two or one for three.
Senator WATERS: That is right.
Ms Paul : It does not strike me as a massive range, but nonetheless—
Senator WATERS: The multiplier factor of three is—
Ms Paul : Yes, it is significant.
Senator WATERS: Obviously, the mining sector always relies on the three and not the one. We are just trying to get to the veracity of those figures and the assumptions and data that underlie them.
Ms Paul : No problem.
Senator WATERS: There is a lot of discussion about the skills shortages in mining. Obviously, that is exacerbated by the high staff turnover in the industry. Has the department got any view on what causes that high turnover?
Ms Paul : High turnover in the resources sector?
Senator WATERS: Of staff in the resources sector.
Ms Paul : It is a range of factors. The fly-in fly-out nature of some of that employment can be a factor. There would be a whole range of different factors. Much of it is remote. Much of it is young people and it is just a life cycle impact and so on. If you like, I can come back with a bit more on that too.
Senator WATERS: Yes, thanks. That would be good. In your view, are there things that the industry can do to address it? And if so, what?
Ms Paul : What we did arising from that report was quite extensive. From that report we have created quite a detailed work plan. I think the report had about 30-plus recommendations. Until the recent machinery of government change, I had been chairing a committee arising from that report to implement it. The recommendations are quite broad. They go from things like remote housing through to employment arrangements, all sorts of things. They are all quite important to try to get the whole sector working well, with the purpose of enabling economic growth and not fettering it because of skills shortages, labour shortages or any employment, housing or municipal regulation barriers of any kind. On the group that I have been chairing sit the key players; the mining industry representatives, the union representatives, WA government representatives et cetera. The committee has not met that often, but has been quite important, at a very high level, to dip into the recommendations of that report and drive their implementation.
Senator WATERS: I look forward to even further written information about that. Does the department have a view on how much industry could or should improve the facilities in communities, both for the workers and for partners of workers?
Ms Paul : Yes, the report did go to that, but I do not remember all the specifics of it. For example, I just talked about housing. There was quite a flavour in the report about support for local communities. Some of the things which we have been driving are trying to stimulate local employment or to support fly-in fly-out. One of the election commitments was a fly-in fly-out coordinator for Cairns. You make fly-in fly-out easier, so that it is streamlined and efficient, and at the same time it is great to try to maximise local employment, particularly Indigenous employment. We have put a lot of effort into working with mining companies directly. They tend to be quite sympathetic, but sometimes they need the support of particular training places or other support which the government has provided.
Senator WATERS: Can you tell me a little more about the FIFO coordinators?
Ms Paul : We can talk particularly about the Cairns one.
Senator WATERS: Is that the only one on foot at the moment?
Ms Paul : The Cairns one exists, and there is a commitment for four more. I am not sure whether they have been established yet. The reason you are having to rely on me is that the officers who are experts on this have been moved to the other department. That is why they are not with me.
Senator WATERS: Do you know where the other four will be based?
Ms Paul : I cannot recall. I will get it for you on notice.
Senator WATERS: And as much detail as you have on their terms of reference, their scope and purpose, and how well resourced they are to do that work in liaison with the industry.
Ms Paul : I know the Cairns one has been considered to be very successful in working with industry, the local community and others to make sure that the whole system works. Cairns was a good starting point because the unemployment rate in Cairns, particularly arising from the global financial crisis, was very high. At its peak, the unemployment rate there was about 13 per cent and now it is much lower. In part that is as a result of stimulating people from the surrounding areas into employment, and the FIFO thing has helped that too.
Senator WATERS: I am interested in what research the department has done on the impact of those FIFO arrangements on the families of the workers and the communities to which they fly, particularly the remote communities. Could you tell me a bit and take on notice to provide some of the detail of that? I know it is a massive area and I am sure you have looked into it in detail.
Ms Paul : We have just done a submission to the fly-in fly-out inquiry that is currently underway. It may be early days for a formal evaluation—I imagine it would be—nonetheless I will get you what we have. That probably means I will need to go to the other department.
Senator WATERS: Thank you for taking that on despite the fact that it is not yours any more.
Ms Paul : That is fine.
Senator BERNARDI: With respect to the National Workforce Development Fund—
Ms Paul : Which is now part of the other department, but try me anyway. I am only a couple of months out of date.
Senator BERNARDI: I am interested in how many childcare positions have been offered under this program.
Ms Paul : I will take it on notice, if that is okay.
Senator BERNARDI: I am going to have to put the rest of them on notice too.
Ms Paul : If they are about numbers then you probably will. If it is a policy intent question I can probably do it.
Senator BERNARDI: What is the time frame for establishing the Workforce and Productivity Agency?
Ms Paul : I cannot recall when the legislation is likely to go through, but developments for the agency are well underway and have been since the announcement of the agency. The agency, you are probably aware, builds on Skills Australia, so the minister, who is Senator Chris Evans, expanded the board of Skills Australia. In effect, Skills Australia has really been operating as much as it can with its expanded role for some time, so it was able to pick up some of the other roles. The expanded roles cover, for example, being able to do much more finely tuned forecasting for skills shortages on a regional basis or on an industry basis. The agency will also administer the fund that you name, which is comprised of the training places.
Senator BERNARDI: To your knowledge, when will the agency be established? As it is, it is going to depend on the legislation.
Ms Paul : I will get the exact date for you.
Senator BERNARDI: Can you tell me how an applicant would prove that a skill is in local demand? What would be the criteria?
Ms Paul : Do you mean like an individual person seeking training?
Senator BERNARDI: Yes.
Ms Paul : It is not so much that concept. It is based on a very successful program called Enterprise Based Productivity Places, which came in in 2008-09 and was very popular.
Senator BERNARDI: Is that still going?
Ms Paul : It has morphed into this, but been dramatically expanded, to use the technical term.
Senator BERNARDI: It was such a success it has been morphed into something else!
Ms Paul : No, it has been built on. This is a significant expansion of what proved to be a very successful approach to training. The reason why it has been a very successful approach to training is that it puts a deal of control in the employer's hand. The training places are targeted at occupations et cetera in skills shortage, and then employers are then able to basically hold these places and offer training to potential employees, for example job seekers.
Senator BERNARDI: I guess the issue is how do you then determine that there is a skill shortage in that area?
Ms Paul : Good question. That is being determined quite precisely by Skills Australia itself, now the agency. They do a skills in demand list quite carefully. It is part of their function and has been in their charter since Skills Australia was established.
Senator BERNARDI: If I am someone who has jobs for particular skills and I cannot find people to fill those jobs, how will I then say that there is a demand for skilled people in this area? How do I prove that or confirm that and get the agency to then respond?
Ms Paul : If you are an employer and you need people to do something in a technical engineering area, and engineering is always in skills shortage so I have picked that one.
Senator BERNARDI: Or I am a political party looking for more politicians, or something like that.
Ms Paul : What you would do is go off to your industry skills council. There are 11 industry skills councils, and most business are well acquainted with their industry skills council. It is the industry skills council working with this agency which holds these training places. You will know immediately whether the workers you are looking for are on the list of skills shortages, so it is all quite transparent, and then you can access these training places.
Senator BERNARDI: So the avenue to get additional recognition of skill shortages is through these regional groups that you just mentioned?
Ms Paul : Recognition of skills shortages—as in the mathematical recognition of skills shortages—is done by the agency. It is a research exercise.
Senator BERNARDI: So they do the research, they pass it on to their local organisation or board and—
Ms Paul : It is basically public, so they would put out a list.
Senator BERNARDI: then the businesses approach their local organisation or board?
Ms Paul : It is a national organisation that they approach, but essentially that is right. It would be well known what the list of availability is.
Senator BERNARDI: Where has this gone to now? You are pretty well schooled on this, Ms Paul, so thank you. Where has it gone to now?
Ms Paul : It is basically underway, as I understand it. The—
Senator BERNARDI: No, which department has it gone to?
Ms Paul : Now you are testing me—the Department of Industry, Innovation, Science, Research and Tertiary Education. They are on today and the part of that department, which was formerly mine, was on this morning.
Senator BERNARDI: I appreciate your filling me in on that. Can I touch on the relocation pilot, please?
Ms Paul : Yes.
Senator BERNARDI: As of last week, I understand that only 306 people had relocated under this scheme. Is that correct
Ms Parker : I have 315, Senator.
Senator BERNARDI: We will work on your figure.
Ms Parker : As of 8 February.
Senator BERNARDI: What was the expectation of the department for the number of people who would have relocated by this stage?
Ms Parker : There are 4,000 places under the initiative, if that is what you are asking.
Senator BERNARDI: No, it is not what I am asking.
Ms Parker : This is a pilot. We did not do a projection of how many per month or per week; what we have been aiming to do is educate providers and encourage them to encourage job seekers and to give them the skills and the confidence they need to relocate. That is quite a difficult task.
Senator BERNARDI: That may be the case. It was announced during the 2010 election campaign, so it has been quite some time. Surely, as it was a pilot, there must have been an expectation as to the number of people that would take advantage of it within the first 12 months, say.
Ms Paul : No, we did not set a target, because it was a pilot and we just did not know. We just allowed an envelope.
Senator BERNARDI: You allowed what? Sorry, I missed that, Ms Paul.
Ms Paul : We did not set a target because we did not know. That is the nature of a pilot.
Senator BERNARDI: What has been the total cost of the scheme to date?
Ms McKinnon : $714,766.
Senator BERNARDI: That has been provided to the participants?
Ms McKinnon : That is right.
Senator BERNARDI: How many of that those received the maximum allowable of $6,000?
Ms McKinnon : Two participants have reached this maximum amount.
Senator BERNARDI: Are you able to provide me with a breakdown of where people have moved from and to?
Ms McKinnon : Certainly.
Senator BERNARDI: I do not want all 315 of them right now. but perhaps you could just table it.
Ms McKinnon : I can do it by metropolitan, regional and remote if you like.
Senator BERNARDI: I would love that, but I have received a note here saying that I only have two minutes left.
Senator BACK: And that was two minutes ago.
Senator BERNARDI: Yes—and I have two questions. So, if you were be able to photocopy that and give it to the department, that would be good.
Ms Paul : We will take it on notice.
Senator BERNARDI: Thank you. How many people have not managed to stay in employment for six months after undertaking the program?
Ms McKinnon : No job seeker has had the 12 week non payment period applied to them.
Senator BERNARDI: Does that answer my question, or is it answering a question that I have not asked? How many people have not managed to stay in employment for six months. How many people have taken the up-to-$6,000 relocation payment and not fulfilled their obligation?
Ms McKinnon : None of them.
Senator BERNARDI: Have any been asked to repay any or all of their relocation expenses?
Ms McKinnon : No.
Senator BERNARDI: I think that uses up my minute. Thank you very much.
Senator SIEWERT: I want to follow up a question I asked last time, being question 0773, which is the result of discussion that, Ms Parker, you and I were having around the percentage of people with a disability who were accessing JSA. It seems to me that under Newstart almost a third of the people that were accessing JSAs were those with some indicator of disability. What I would like to do if possible is ask—if you have them now, yes, but if not take this on notice—whether you have got figures later than that on the breakdown as to those with a disability and those who are not.
Ms Parker : To update the previous ones?
Senator SIEWERT: Yes, to update it. Obviously, I am interested in that because of the change in the eligibility criteria.
Ms Parker : Yes, we will take that on notice.
Senator SIEWERT: I would like the Newstart one now if you have it; if you do not I will ask for it on notice.
Ms Parker : Not an update since then, since 31 August.
Senator SIEWERT: Okay. Basically I want that same breakdown updated for the same period as we have talked about earlier.
Ms Parker : Certainly.
Senator SIEWERT: That would be appreciated. The other issue related to that is this. We have had some backwards and forwards about the increased workload on JSAs because of the new process. I am wondering whether you have got any analysis on that. Do you remember that we had some ongoing dispute about the changes, about how you had to have demonstrated your 18 months?
Ms Parker : That is right. You asked about whether having those new recipients coming in with new obligations would mean more work for JSAs.
Senator SIEWERT: Yes, exactly.
Ms Buffinton : With the changes to DSP starting on 3 September it is early stages and so at this stage, as to the flow, while we did predict an increased flow both to disability employment services and JSA, we have not seen an extraordinary peak load, because we are using 30 November figures for Senate estimates and in those couple of months we were just beginning to change it. There was already load in the system. So it is only for DSP applications since 3 September. So what is flowing through the system at the moment is a lot of the applications that were pre 3 September, and so it is only now that we are beginning to get the new stream coming through.
Senator SIEWERT: I understand that and thank you, and if you would take it on notice and obviously I will be following it up in May. I actually have some other questions that I might put on notice, because I do want to ask a few others in my last remaining minutes on the DES. So I will put my remaining questions there and I have also got the usual request for stats that I will put on notice. Since we last met the Senate committee of inquiry has reported and, at the risk of getting the answer I suspect I am going to get; I am going to ask it anyway—and so I ask: have you got a time line for when you are expecting a response to the Senate committee of inquiry recommendations?
Ms Parker : The government will respond in the time frame.
Ms Buffinton : It was tabled on 25 November and the government have to table their response within three months.
Ms Paul : That will be met.
Senator SIEWERT: There have been examples where some of them have been met sooner, so I just thought I would try my luck. Obviously, some of them are more time dependent than others, particularly those that relate to the retendering process. Could you take me through where you are up to now with the retendering process?
Ms Parker : Certainly.
Ms Buffinton : While the response to the inquiry will obviously be tabled, in the meantime DEEWR is continuing to prepare for the open tender of the non-remote DES-ESS business for May 2012. We have already gone out and advertised that we are going to be running a public consultation on the exposure draft on the DES-ESS tender, starting on 27 February. That will be in all capital cities and in a range of regional centres. We have had a very good response from the sector about who will be attending those consultations.
Senator SIEWERT: I will not bother you to go through the whole list, but how many consultations are you having?
Ms Parker : All capital cities and regional centres.
Senator SIEWERT: With all due respect, there are a lot of regional centres.
Ms Buffinton : It is in the order of 20 different centres.
Senator SIEWERT: And when are you going to conclude that consultation process?
Ms Buffinton : When we go through an open consultation and go out to the regional centres, organisations will have the opportunity of responding and making comments. That closes on 20 March. So consultations open on 20 February and close 20 March.
Senator SIEWERT: And the actual face-to-face consultation starts on the 27th?
Ms Buffinton : That is correct.
Senator SIEWERT: And all of it closes on 20 March?
Ms Buffinton : That is right.
Senator SIEWERT: Obviously, from there you will go to the—
Ms Parker : The RFT. We will release the RFT in late May.
Senator SIEWERT: So you are responding to the Senate inquiry obviously and the plan is to respond before then.
Ms Parker : Yes, hopefully before.
Senator SIEWERT: I look forward to that. I am not going to push my luck by asking for a response to the individual recommendations because I know what the answer will be.
Ms Parker : Thank you.
Senator SIEWERT: I would like to explore a bit more the JSA process. The other issue I have had raised with me on numerous occasions is the issue of specialist providers. How many specialist providers do you currently have on the books?
Ms Parker : We have 55 out of 105.
Senator SIEWERT: I am not trying to be pedantic here. Earlier I was told 106.
Ms Parker : In terms of the number of providers?
Senator SIEWERT: Yes. I presume we are talking about the same cohort.
Ms Parker : Yes, we are. We probably should correct the record.
Senator SIEWERT: I am just making sure that I have got it correct.
Ms Paul : It is probably just a matter of a point in time.
Senator SIEWERT: But is it the same pool that we are talking about?
Ms Parker : Yes, absolutely. We will check that number.
Senator SIEWERT: That is all I am checking. So have we had any increase or decrease in that number?
Ms Buffinton : It is 106.
Senator SIEWERT: Thank you. Have we had an increase or decrease in specialist providers in 2010 or 2011?
Ms Buffinton : I think we will have to take that one on notice.
Ms Parker : We will take that on notice. I would say no. That is my thinking, but we should absolutely check that that is right.
Senator SIEWERT: How many, if any, specialist providers do we have for refugees in CALD communities? I am presuming that we do.
Ms Parker : Yes, we do.
Senator SIEWERT: And how many do we have?
Ms Parker : Seven contracted organisations.
Senator SIEWERT: And they provide services—
Ms Parker : For culturally and linguistically diverse migrant refugees.
Senator SIEWERT: Are they seven individual services? When you say contractors do you mean they provide services in multiple localities?
Ms Parker : In 26 sites. There are 11 ESAs.
Senator SIEWERT: Are those sites targeted specifically at demographically chosen locations where we know that there is a high demand for CALD and refugee support services?
Ms Parker : Yes, that is right. We have data, but the tenderers will need to show as well, when they put in their tender, that the ESA has this percentage or proportion and that this is what they wish to service. We also check that against our own data.
Senator SIEWERT: How do CALD communities and refugees get assessed into streams 1 to 4?
Ms Parker : They are assessed the same as other job seekers. Under the job seeker classification instrument there are a range of factors—you get points and that will put you in a higher stream. One of those factors is that English is not your first language and another is that you have not had a job for X number of years. There are a whole range of them.
Senator SIEWERT: Something I must admit I have failed to ask for is a breakdown of outcomes specifically against CALD communities and refugees. Do you do that breakdown?
Ms Parker : Yes, we do.
Senator SIEWERT: I want to amend the question I put on notice about the breakdown of those figures that we asked for earlier. Could I also have that for CALD communities and refugees. I realise that CALD communities are separate from refugees. If you could provide that, in terms of outcomes, it would be appreciated—and it could also be included in no show and similar. That would be really appreciated. Are you specifically doing some monitoring beyond those figures against outcomes for CALD communities and refugees? We had a brief discussion, and I will go into it more on Friday, around the higher figures for non-compliance for Indigenous communities and job outcomes there. Is there any specific monitoring of whether the services are actually meeting people's needs?
Ms McKinnon : On the question you asked previously about Indigenous placements—the 13- and 26-week outcomes—we can do that for CALD and I think we can do it for refugees if they are not a subset aggregated. But I do not think we can breakdown non-compliance by that.
Senator SIEWERT: Okay. If you could provide those figures, where you are able to, it would be much appreciated. I am going to be cheeky. I have got a question but I will leave it for the inquiry we will be doing into the new income support bill. I think I may have reached the end of questions that I can ask you now. The other ones are detailed in terms of getting a whole lot of data. I have finished—only five minutes over time!
CHAIR: It has been a pleasure, Senator Siewert; you are, after all, my 15th most favourite senator!
Mr Parsons : Chair, I am very cognisant of your comments earlier on where we corrected the record. I have been informed by my colleagues behind me that, where I referred to the two letters in the context of the provider brokered process, I said the first letter had a due date of today and the second letter had a due date of tomorrow. In fact, the correct dates are tomorrow and Friday.
Senator SIEWERT: Thank you.
CHAIR: That concludes outcome 4. We will take a break and then recommence with outcome 5.
Proceedings suspended from 21:18 to 21:34
CHAIR: We will now resume. We are in outcome 5. Senator Humphries.
Senator HUMPHRIES: I wrote to Minister Shorten last week and asked him if it were possible, given that Senator Evans might not be here, if anyone could update me on the situation with the Clean Start issue. Is anyone able to do that?
Ms Paul : Yes, we are. You are in the right place. I have seen your letter, Senator, and so we have made sure that we have the right people here for you.
Senator HUMPHRIES: Thank you very much.
Mr Kovacic : Perhaps I could start, Senator. Consistent with what Minister Evans was saying at the last estimates hearing, there have been some developments. A revised set of Commonwealth Cleaning Services Guidelines and a revised Fair Work Principles User Guide were released on 24 November and came into effect on 1 January 2012. The changes that were given effect through those documents were designed to strengthen the government's objective of promoting better wages and conditions for vulnerable workers in cleaning roles within government agencies. So, in essence, there are specific requirements that relate to Australian government cleaning services tenders set out in those guidelines. They go to rates of pay, which are set out in the guidelines, which potential tenderers need to commit to meet, as well as the sorts of conditions that were previously expressed in the guidelines as they were at that stage in terms of workload management, supporting freedom of association and those sorts of issues.
Senator HUMPHRIES: Is Miss Baxter going to add something to that?
Ms Baxter : I do not really have much more to add to what Mr Kovacic has said, except that all of the documentation, including the refreshed documentation, is available on the DEEWR fair principles website.
Senator HUMPHRIES: I can have a look there.
Ms Baxter : Yes.
Senator HUMPHRIES: I will do that. My understanding of the problem is that there was effectively an award in the cleaning industry and then there was Clean Start, which was not an award but something akin to that.
Mr Kovacic : It was a template agreement.
Senator HUMPHRIES: Are you saying that that gap is being closed by aligning the two sets of awards?
Mr Kovacic : That is correct. It is the guidelines that effectively align the rates, if I can put it that way, that potential contractors need to pay their employees if they are to be successful or be able to compete for government cleaning work.
Senator HUMPHRIES: That is good. I will go and look at the website and, if I have further questions, I will come back next time and ask them.
Senator BOYCE: My questions relate to regulation 144 and the government's recent announcement of $30 million to be put into equalisation—
Mr Kovacic : This is about the Queensland pay equity regulations.
Senator BOYCE: Yes. It subsequently fed into or weighted the Fair Work decision. You would be aware, Mr Kovacic, that the original draft regulation was withdrawn late last year.
Mr Kovacic : I am, Senator.
Senator BOYCE: Could you explain to me what the errors were that led to that happening?
Mr Kovacic : At the time the regulation was made it followed consultation that the department had with both the relevant Queensland department and with the Australian Services Union. When their regulation was made and due to come into effect on 1 October last year, from memory, there were a number of concerns expressed by some of the providers in Queensland. The nature of the regulation was such that it listed 316 providers in the regulation, and a number of those providers raised the issue that in their view they should not be covered because they were constitutional corporations or indeed they were covered by enterprise agreements in some circumstances. So, against that background, a decision was made by Minister Evans to withdraw the regulation. He subsequently engaged Mr Bevis—
Senator BOYCE: The former member for Brisbane.
Mr Kovacic : Yes—to undertake some consultations with the sector. I suppose, in essence, that informed the development of the regulation that was recently made.
Senator BOYCE: You are saying that the original errors came out of information that was provided by the Queensland department and by the ASU. Is that right?
Mr Kovacic : That is correct.
Senator ABETZ: I would like to think that the opposition had some role in this as well.
Senator Jacinta Collins: And providers directly as well.
Senator ABETZ: It was not until there was a threat of disallowance that engagement actually occurred. Believe it or not, I think the Australian Greens were on side with us on that one.
Senator BOYCE: Absolutely.
Senator ABETZ: So there was a very real possibility, but—
CHAIR: It may only have been coincidental.
Senator ABETZ: I hope it was.
Senator BOYCE: The Beavis report—is that to be made public?
Mr Kovacic : That is a matter for government. As I indicated in a briefing that we had that with Senator Abetz recently, the report contains some material that was provided in confidence. The question was asked at that stage whether a redacted version might be made available and that is still under consideration.
Senator ABETZ: Can I ask the parliamentary secretary: what is the government's view on that?
Senator Jacinta Collins: I will need to take that on notice.
Senator BOYCE: So it has gone to the minister, or will you take it to the minister?
Ms Paul : We are still having a look at it.
Senator BOYCE: The department is still looking at it?
Ms Paul : Yes.
Mr Kovacic : That is correct.
Senator BOYCE: Before you go to the minister to see what the minister's view is?
Ms Paul : Yes.
Mr Kovacic : That is right.
Senator BOYCE: It seems a rather roundabout way of doing it. I would have thought you would seek the minister's views first, but anyway. As to the $30 million that you have put in, are you confident that that will be sufficient supplementation? You know that a lot of the organisations said that if they were forced into this situation, without additional funding, at short notice, that they would simply have to close their doors or get rid of a lot of staff.
Ms Anderson : We are of the view that it is sufficient funding.
Senator BOYCE: Where did the figure come from then?
Ms Anderson : It is based on current funding, Commonwealth funding, to those Queensland providers that the Commonwealth—
Senator BOYCE: And how many organisations are on the list now?
Ms Anderson : In what sense?
Senator ABETZ: The regulation—
Senator BOYCE: You had three—
Mr Kovacic : I might just describe the regulation itself in terms of how it is framed in terms of who is covered by the regulation. It was changed in the light of the further consultations. It is now framed in such a way that it covers a class of employers, a class of providers, and the explanatory statement that accompanies the regulation certainly lists the 316 providers that were previously in the regulation, but it provides some guidance and, more recently, I think last week, the Fair Work Ombudsman actually wrote to those 316 providers informing them of the regulation being made but also providing contact details in terms of whether they had any questions relating to whether they were indeed covered by the regulation itself. So there is a change in the way that the regulation is framed in terms of who it captures which came very much out of the consultations that both Mr Beavis and subsequently the department had with key people in Queensland.
Senator ABETZ: So how many organisations do you believe are now covered?
Mr Kovacic : It still would be 316 at the upper end, subject to whether the views expressed by some of those as to whether they were constitutional corporations or—
Senator BOYCE: Subject to their sort of proving that they are not—is that what you are saying?
Mr Kovacic : That is correct.
Senator BOYCE: Are you aware or have any of them reported to you that in fact they have been approached by people from the ASU, suggesting that they had better not call themselves a trading corporation or they would—I beg your pardon; I have lost my question here.
Senator ABETZ: That they describe themselves as a non-trading—
Mr Kovacic : I am not aware of—
Senator ABETZ: non-constitutional—
Mr Kovacic : We have not had any approaches to that effect. I am not aware of any suggestion that that has been occurring.
Senator BOYCE: Would you be prepared to check with other staff that you have? Could you undertake a check to make sure that this has not been reported to other staff?
Mr Kovacic : I have checked with the staff and—
Senator BOYCE: This was the whole staff, eh?
Ms Paul : Very, very expert staff!
Mr Kovacic : If she does not know—
Senator ABETZ: We will remember that in future!
Senator BOYCE: I can provide more information to you, though clearly not here, about people claiming that they have been threatened that they had better say they are non-trading corporations so that the pay increases are paid or there will be 'trouble' for their organisations. And, whilst we are on the topic of trouble, a number of the organisations have also received a letter today saying that they will be fined $6,600 for each act of non-compliance with their responsibilities under the new regulation 144. Why is that?
Mr Kovacic : I am not sure who the letter may have come from.
Senator ABETZ: I reckon you have got a fair idea. It would the Fair Work Ombudsman, wouldn't it be?
Mr Kovacic : I have just got a copy of the Fair Work Ombudsman letter here. I am just checking whether it has any reference to that. Certainly the letter was intended to alert the providers listed in the explanatory statement to the regulation having been made and to provide contact details. As far as I can see it, just on a quick skim, the letter itself has no reference to penalties.
Senator BOYCE: I am sorry, have you found it, Ms Anderson?
Mr Kovacic : There is a fact sheet attached to it.
Senator BOYCE: Yes.
Mr Kovacic : Certainly, it has if there are penalties for noncompliance with the regulation.
Senator ABETZ: With a $6,000 figure attached to it?
Mr Kovacic : It was not—
Senator ABETZ: So it was not in the letter but the attachment to the letter?
Mr Kovacic : It was in the fact sheet.
Senator BOYCE: Saying they would be fined $6,600 if they did not comply with something—which they are quite likely to not comply with if they have not got the funds to do so.
Mr Kovacic : Can I actually make two points. For one, the letter itself is very clear in terms of providing contact details for any provider that has questions as to whether or not they are indeed covered by the regulation. That can extend to going to the issue of whether they are indeed a constitutional corporation. There is every effort here to assist the providers to become aware of whether they are covered by the regulation and, if they are, to manage their obligations.
Senator BOYCE: Can we just go back to the $30 million. I do not know that I ever quite understood, except that you looked at the current spending of the organisations that you believe are so. You must have a figure, surely. Is it the whole 316 that you have used to come to the figure of $30 million? How did you get to $30 million?
Mr Kovacic : It would have been based on the 316, but it would also have been based on the approach that the department of finance took in terms of also settling the estimates of the Commonwealth's share of the implications in the pay equity case itself, the national case.
Senator BOYCE: The $30 million is meant to cover both; is that what you are saying?
Mr Kovacic : No. In terms of the national pay equity case, the Prime Minister announced last year that the government would fund its fair share of the decision. That is up to $2 billion and the $30 million—
Senator BOYCE: That is why I am confused.
Senator ABETZ: This $30 million is only in relation to the Fisher decision. The $2 billion is in relation to the national case.
Mr Kovacic : That is correct, and the $30 million covers—
Senator ABETZ: Let us not confuse this, because I will have a few more questions about that later.
Ms Paul : But Mr Kovacic is talking about the methodology used, that is all.
Mr Kovacic : Yes.
Ms Paul : He is saying that the methodology is similar. You are right, so they are for different things.
Senator BOYCE: Sorry, I still do not understand the methodology.
Mr Kovacic : The methodology was one that was relied on in the national case. That is the point I was making when I drew the analogy.
Senator BOYCE: Now I understand.
Mr Kovacic : We had been working with the Department of Finance and Deregulation, who had been closely involved in all of those costing issues, as you would expect, in terms of arriving at the figure of $30 million.
Senator BOYCE: An organisation in Queensland has done their sums on the Home and Community Care program funding that goes into Queensland, which is about $800 million. So $30 million as a subsidy for $800 million has been described here as 'a:mere filling in a mouth full of cavities'. That is how one provider has put it. Have you heard of these concerns?
Mr Kovacic : To be precise, no. But the point I was actually going to make is that we are talking here about a subset of providers. If you are talking about the HACC program, that is potentially more than the 316 providers that might be captured by this regulation.
Senator BOYCE: But it is only one subset—isn't it—of organisations?
Mr Kovacic : Indeed, not all 316 of the providers that are listed in the explanatory statement may be delivering HACC services. There is a range of variables around that, which sort of go to that. The other point that I would make is that the $30 million is to do with the period of back pay that the regulation provides. That period of back pay is from 27 March last year, which is the date that these providers would have fallen back into the state system—
Senator BOYCE: Yes, until that comes in.
Mr Kovacic : but for the referral of powers to create a national system by the Queensland government—through to 29 February, being this month.
Senator BOYCE: Yes, but that is nearly a year's back pay, isn't it.
Ms Paul : But the point being made here, in terms of what you were reading out there, is that you are not comparing apples with apples. You are actually talking about a broader set of providers than is covered by this regulation. And it is almost certainly a broader timeframe. That is the point that Mr Kovacic is making.
Senator BOYCE: I acknowledge that we are not talking about the organisations—
Ms Paul : We are not talking about the same thing.
Senator BOYCE: but the actual funding of the organisations that are covered, as you point out, we cannot currently know. One sector of this funding is represented by a share of $800 million. So the suggestion that $30 million is a lot of money in this sector to cover these wages is certainly not agreed with by many organisations in the group. What is going to happen, Mr Kovacic, if it is not enough?
Ms Paul : Just to be very clear, the $30 million is for something quite specific and quite limited. Mr Kovacic has already talked about the national case more broadly. I am sorry, Senator, what was your question, again?
Senator BOYCE: I asked Mr Kovacic what is going to happen if the $30 million is not enough.
Mr Kovacic : The funding is to meet the Commonwealth's share of the funding to cover that period of back pay. Our estimate is that that is sufficient to do that.
Senator BOYCE: What if it is not?
Mr Kovacic : That is the Commonwealth's share. It has been estimated using a methodology—
Senator BOYCE: What you are saying is that Queensland has to worry about it if $30 million does not do the job.
Mr Kovacic : One of the other prerequisites for coverage by the regulation is that the providers have actually received funding from the Queensland government and that funding was provided post the 2009 decision by the Queensland Industrial Relations Commission. Again, that is one of the criteria that determines whether a provider is captured by the regulation or not.
Senator BOYCE: So any organisation that received federal funding only will not be affected.
Mr Kovacic : There are no organisations that would have received funding in respect of the Queensland Industrial Relations Commission decision—
Senator BOYCE: Okay. I will stop there.
Senator ABETZ: First of all, can we have the letter and attachment tabled, please? How will this $30 million find its way to the providers? Have you given that to the Queensland government to distribute?
Mr Kovacic : That is an issue that we are still working on with the Department of Finance and Deregulation.
Senator ABETZ: Before the coalition's intervention in this matter there was no $30 million on the table. Is that correct?
Mr Kovacic : It is my recollection that the issue of funding at that stage had not been determined by the government.
Senator ABETZ: In the initial regulation, which was later withdrawn, there was no talk of $30 million, was there?
Mr Kovacic : There was no decision at that stage as to whether the government would provide—
Senator ABETZ: I was not asking about a decision. Was there any talk of $30 million.
Ms Paul : We have answered the question. At that stage a decision had not been taken.
Senator ABETZ: Was there any consideration of $30 million being advanced.
Mr Kovacic : I will have to take it on notice. I cannot—
Ms Paul : We will have to take on notice when the briefing was done.
Senator ABETZ: Let's not beat around the bush. Whilst I appreciate that briefings are private, when we raised these issues with the minister's office and the department, one of the issues that was raised was the lack of funding. I hope I do not divulge too much; suffice it to say we were told that assurances had been given by the Queensland government that they had fully supplemented these providers and that the argument of shortfall had no substance. That $30 million from federal coffers was somewhere in the mix at that stage, quite frankly, defies belief, Mr Kovacic, given the discussions that we had. When did the federal government come to the view that the Queensland government's assertion of full supplementation was in fact not correct and that there was the need for this extra $30 million?
Mr Kovacic : If I am to be precise, I would have to take that on notice.
Senator ABETZ: What about Ms Anderson? She is the go to lady.
Mr Kovacic : Bear with me for a moment. Certainly, the issue of funding and the amount of funding provided by the Queensland government was an issue that was raised in the context of the work that Mr Bevis undertook. It was certainly a factor and it was subsequently a factor in government consideration in settling both the regulation and its decision and funding.
Senator ABETZ: When was Mr Bevis appointed? After the coalition raised the problems with you and not before. That is correct, isn't it?
Mr Kovacic : I think it was about that time—around late October.
Senator ABETZ: Mr Bevis had not been appointed when the original regulations were put down.
Mr Kovacic : That is correct.
Senator ABETZ: Right, thank you. So if the money aspect was considered in the context of Mr Bevis it stands to reason that it was only considered after the regulations were initially put down and then withdrawn.
Mr Kovacic : I think there was a recognition that there might be funding issues. It goes to the point I made before that at the time the original regulation was made the decision had not been made by government.
Senator ABETZ: I did ask about a decision. Let us not play with words: I asked whether or not any consideration was being given to supplementation. We are led to believe by the Queensland government that full supplementation had been given. We were led to believe that it was the federal government's view that full supplementation had been given by Queensland. That is why you were of the view that regulation was the right thing to do until the coalition and the organisations raised concerns with you about the consequences. That is correct, isn't it?
Ms Paul : I think our sequencing has been made clear and there is probably nowhere else we can go with it.
Senator ABETZ: Sorry, what is the sequencing? When was the issue of Commonwealth supplementation first considered?
Ms Paul : I think Mr Kovacic has taken that on notice. We would have to go back and get the sequencing correct, so we are taking the timing question on notice.
Senator Jacinta Collins: Senator Abetz, for fullness' sake you should also be aware that the community sector wages group that I chair has also been addressing providers concerns about the nature of supplementation.
Senator ABETZ: On a national scale or with the Fisher case?
Senator Jacinta Collins: Both.
Senator ABETZ: As of when? Can you let us know?
Senator Jacinta Collins: I would have to take the precise date on notice.
Senator ABETZ: Please do.
Senator Jacinta Collins: Certainly the government has been looking at the Queensland government experience to inform how we may deal with supplementation in the future.
Senator ABETZ: So state governments are now going to help subsidise the national case.
Senator Jacinta Collins: So it is not fair to say that the government was unaware of provider concerns with respect to the nature of the Queensland government's supplementation.
Senator BOYCE: Why were you persisting with the regulation in the House?
Senator ABETZ: If you were aware why were you persisting with a line to us that you were convinced that the state government had provided full supplementation?
Senator Jacinta Collins: I am sorry, I have not ever expressed that position.
Senator ABETZ: No, but the department and the minister's office have.
Ms Paul : I am not sure that we have made that assertion either. I would like to check, so I will take that on notice, too.
Senator BOYCE: Can I ask one last question, given that I think we are not going to make any breakthroughs here? The form that organisations are asked to fill in asks them to tick one of two boxes that say:
I consider the organisation is a constitutional corporation. You may wish to provide details.
I consider the organisation may be a constitutional corporation. You may wish to provide details.
If they tick the 'may be a constitutional corporation' box what happens next? Who decides?
Mr Kovacic : We retained a barrister who can provide advice to providers to clarify the issues, because it is a complex issue and in some respects can be a difficult legal issue. It is really part of the package of providing assistance to providers to assist them to clarify whether they are indeed covered by the regulation.
Senator BOYCE: Who will pay his costs?
Mr Kovacic : The Commonwealth.
Senator BOYCE: Have you developed a contract with him? How is he to be reimbursed?
Mr Kovacic : It will be—
Ms Anderson : I have not got those details on me.
Mr Kovacic : We will take that on notice.
Senator BOYCE: Would it be sessionally or—
Mr Kovacic : I presume it would be, but can we take that on notice.
Senator BOYCE: Tell us if it is and what it would be intended that he be paid per session.
Mr Kovacic : Certainly.
Senator BOYCE: Thank you.
Senator ABETZ: Can we move to other issues. Parliamentary Secretary, does the government have confidence in Fair Work Australia to do its job?
Senator ABETZ: Does the government believe that the inquiry into the Health Services Union has been unreasonably long?
Senator Jacinta Collins: I would say that the government's position on this would be informed by the position discussed earlier today, but that is a position for the independent agency to respond to.
Senator ABETZ: So the fact is that Fair Work Australia can come to, at least on the face of it, a view about the length of the inquiry but the government does not have any view?
Senator Jacinta Collins: It is the agency that is informed fully as to the details of the matter it is investigating. It would be improper for the Commonwealth to have access to that information.
Senator ABETZ: Is Fair Work Australia a government agency?
Mr Kovacic : It is an independent statutory authority.
Senator ABETZ: The government does not have a view, so it does not matter how much Fair Work Australia might internally misbehave. Because it is an independent statutory body or agency, the government will never form a view about it?
Senator Jacinta Collins: No, that is not what I said, Senator Abetz.
Senator ABETZ: When will you form a view?
Senator Jacinta Collins: Whilst there is an ongoing investigation underway, it is not appropriate for the government to have access to the level of information to reach an informed view on that matter.
Senator ABETZ: All right. Parliamentary Secretary, chances are you will have to take this on notice. Can you tell us how many contacts Mr Shorten's office has had with Fair Work Australia over the Thomson matter: when, how often, and what about?
Senator Jacinta Collins: I will take that on notice.
Senator ABETZ: Thank you. Is the department aware of the existence of a memorandum given to Fair Work Australia by industrial registrar Doug Williams before he left?
Mr Kovacic : Other than what has been said in estimates earlier today, I think, I am not aware of it.
Senator ABETZ: Right. You might not be. Is anybody else in the department?
Ms Paul : No.
Senator ABETZ: What inquiries have been made to come to that position?
Mr Kovacic : I have not made any inquiries. In terms of with the staff?
Senator ABETZ: Yes.
Mr Kovacic : I would be very confident that none of the departmental staff—
Senator ABETZ: What inquiries have been made? I am not asking whether you are confident or not. I am asking what inquiries have been made?
Senator Jacinta Collins: Senator Abetz, do you mean since—
Senator ABETZ: What inquiries have been made?
Senator Jacinta Collins: Do you mean since this morning's evidence?
Ms Paul : We would not have been able to make inquiries since this morning?
Mr Kovacic : It has never been an issue that has been—
Senator ABETZ: It has never been an issue? You have never heard about this before?
Mr Kovacic : Not at all.
Senator ABETZ: Is there a go-to person within your department that liaises with Fair Work Australia?
Ms Paul : There would be a range of liaison. We can take it on notice, but we would not have had any chance to today.
Senator ABETZ: I am not only talking about today.
Mr Kovacic : I am happy to take it on notice.
Senator ABETZ: If it exists. It may be that the department, as is usually the case, is aware of these things before it finally comes out in public, so the fact that it was only raised this morning is not—with respect—necessarily a cover as to whether or not the department has known about it or whether it has made inquiries as to its existence.
Ms Paul : To do the correct thing by you, we will take it on notice.
Senator ABETZ: Thank you. This question is to the parliamentary secretary or the department. Do we know how many inquiries and investigations have been undertaken by Fair Work Australia?
Senator Jacinta Collins: Of this character?
Senator ABETZ: Yes, of this character, under—whatever it is—the registered organisations.
Senator Jacinta Collins: I know of no better than what Ms O'Neill put to you this morning.
Mr Kovacic : And I am in the same situation, Senator.
Senator ABETZ: I am not sure that Ms O'Neill told us how many other such inquiries there had been.
Senator Jacinta Collins: I think she said that there were these two that she was currently investigating and there had been one under the previous legislation.
Senator ABETZ: Under the previous legislation—all right.
Senator Jacinta Collins: That is my recollection.
Senator ABETZ: This is not supposed to be a memory test. What I want to know is—possibly, if we can then find out—when the minister's office was informed, if at all, at the time, under the old legislation as to the fact that an inquiry or investigation was being undertaken.
Ms Paul : Is that a question on notice essentially for Fair Work Australia?
Mr Kovacic : It would be really difficult for us to answer that.
Ms Paul : It probably is.
Senator ABETZ: And I suppose the minister's office as well. Thank you for that guidance, Ms Paul. If somehow the secretariat or somebody could make sure that that finds its way to Fair Work Australia—
CHAIR: Questions on notice are open until, I think, next Thursday.
Senator ABETZ: Yes, it is now on the Hansard, so if that can somehow find its way that would be good.
Senator Jacinta Collins: The secretariat can ensure that it gets to Fair Work Australia.
Senator ABETZ: That would be very kind. In relation to Mr Lee's departure, was the department aware before 2 September 2011 that Mr Lee would be vacating the role of general manager?
Mr Kovacic : The department normally assist the minister on appointment issues, which includes preparing the relevant documentation for government consideration and subsequently Executive Council consideration, so, as part of that, we certainly would have been.
Senator ABETZ: Thank you. A simple yes would have done. Was the department aware before 2 September? The answer to that is yes. Did Mr Lee leave as general manager immediately thereafter?
Mr Kovacic : Mr Lee resigned, if that is the correct word—he took up his appointment as a commissioner of Fair Work Australia on 8 September, so his last day, from memory, would have been 7 September.
Senator ABETZ: Can you please take on notice for me when he actually did leave—
Mr Kovacic : Certainly.
Senator ABETZ: the Fair Work Australia administrative side to go to the commission side?
Mr Kovacic : The appointment was made by the Governor-General on 1 September and he commenced as a commissioner on 8 September, as I mentioned.
Senator ABETZ: Just as a technical point, for the appointment, did he have to resign before the Governor-General—
Mr Kovacic : No. I will double-check on this as well, but I think that technically the appointment is not made until the Governor-General makes the appointment and—
Senator ABETZ: So you would not want to resign beforehand, would you?
Mr Kovacic : No. You would be perhaps in limbo, if I can describe it that way.
Senator ABETZ: Or do they resign pending the Governor-General's commission?
Mr Kovacic : I will take that on notice.
Senator ABETZ: Anyway, take that on notice. Nothing revolves on that other than my general interest.
Mr Kovacic : Invariably, as part of the appointment documentation—and, again, I will include this in what we provide on notice—is the date the appointment takes effect, if I can put it that way. That is part of the documentation, from memory.
Senator ABETZ: Going back to the former registrar, in the wind-up of the industrial registrar before there was a manager appointed, were any documents handed over at that time, do you know, from one to the other?
Mr Kovacic : I do not know.
Senator ABETZ: Does the department provide any FOI support to portfolio agencies?
Mr Kovacic : We have done so on some occasions, particularly where there are matters that might cut across another agency.
Senator ABETZ: You do sometimes?
Mr Kovacic : Sometimes.
Senator ABETZ: Did that extend to Fair Work Australia?
Mr Kovacic : No.
Senator ABETZ: Just as well—but possibly you should, given their track record!
Senator Jacinta Collins: But then you would be making other suggestions, Senator, so perhaps we should not!
Senator ABETZ: No, the only suggestion is that Fair Work Australia clearly did not comply with that which was required, and if they had been provided with some more robust advice, or acted on that, they would have been giving information out earlier.
What process did the department go through to select an acting general manager? I do not want the full details, but who made that decision?
Mr Kovacic : It is a ministerial appointment, and section 669 of the Fair Work Act requires the minister to consult with the president. At the minister's request I consulted with the president about potential acting appointments. The department then provided—
Senator ABETZ: Plural?
Mr Kovacic : Sorry?
Senator ABETZ: Appointments?
Mr Kovacic : Appointment—a potential acting general manager.
Senator ABETZ: Was a list of names provided and discussed with—
Mr Kovacic : There were several names canvassed in that discussion.
Senator ABETZ: With the president?
Mr Kovacic : With the president, and then there was advice provided to the minister on 2 September recommending that Ms O'Neill be appointed as acting general manager.
Senator ABETZ: Were the alternatives put up to the minister as well?
Mr Kovacic : No.
Senator ABETZ: So the minister had the choice of appointing—or not appointing anybody.
Mr Kovacic : It would have been open to the minister to seek some further—
Ms Paul : That is right. That would not have been the only choice available to the minister, of course.
Senator ABETZ: But the minister did not know what other choices were available to him.
Ms Paul : If the minister had asked, of course that would have been made available.
Mr Kovacic : I will be careful here, but certainly the conversations that I had with the president on the minister's behalf were reflected in the advice that I provided to him.
Senator ABETZ: How many other potentials were there in that list that you discussed with the president?
Mr Kovacic : There were probably four names that were canvassed.
Senator ABETZ: Can you give us their background, on notice—or would that identify them?
Ms Paul : That is getting a bit close to privacy considerations.
Mr Kovacic : Yes, that would identify them.
Senator ABETZ: All right, I understand that. I turn to parliamentary question No. 1507. I do not know when we got the response but we have got the response. I think it came in today. Part (2) of that says the department is providing secretariat support for the panel—that is, the panel reviewing the Fair Work Act. How many personnel?
Dr Morehead : We have a small secretariat to support the work of the panel that is located in the department.
Senator ABETZ: Yes, how many?
Dr Morehead : We have five staff.
Senator ABETZ: Does that include—I do not know what the term is—a ghostwriter for the panel as well? There is nothing wrong with that; it is like committee reports of the Senate. We have a secretary who is, if I might say, the ghostwriter, but the chairman puts his signature on.
CHAIR: It's all my own words!
Senator ABETZ: I have been there and done that as well. Is that sort of person there as well? I do not know what the technical term is.
Senator Jacinta Collins: Drafting support, perhaps?
Senator ABETZ: Drafting support would be a nice term.
Dr Morehead : They do pieces of writing as requested by the panel and provide things like data tables. The panel, for example, might request the latest data on such and such. Then it would be the secretariat's job to get that data.
Senator ABETZ: So they would do research?
Dr Morehead : They do pieces of research as requested.
Senator ABETZ: Is it anticipated that the secretariat will assist in the writing of the report, albeit it will be signed off? I understand how that works, but—
Dr Morehead : To the extent that they operate as assistants to the panel in retrieving pieces of evidence, yes.
Mr Kovacic : But ultimately that is a matter for the panel.
Dr Morehead : It is a matter for the panel.
Senator ABETZ: Of course.
Dr Morehead : If the panel ask them to write a draft for them, they will.
Senator ABETZ: But if they do not have suitably qualified personnel among the five staff made available to them then they will not be able to avail themselves of the opportunity of having somebody, say, draft a report for them.
Ms Paul : Having met with the reviewers myself, I think they will be very clear about what their needs are likely to be. If those needs include drafting then we will need to make sure that we have the right people for them.
Senator ABETZ: Have those five positions actually been appointed as yet?
Dr Morehead : They are operating, yes.
Senator ABETZ: They are operating. So this—what do we call it?—secretariat support might be enhanced.
Ms Paul : All I mean here is that the secretariat would be guided by the reviewers; that is the bottom line. So I am confident that this team will be able to meet their needs, but if for any reason they could not then of course we would do whatever it took.
Senator ABETZ: All right. Does the current team have amongst its personnel that are suitably qualified to potentially write a draft report?
Dr Morehead : They have staff who are used to doing pieces of writing, but more importantly the staff are used to being able to find relevant information quickly and turn it into a product that can be easily understood.
Senator ABETZ: Like a report.
Dr Morehead : Like pieces of writing.
Senator ABETZ: Like pieces of writing that might find their way into a report.
Mr Kovacic : The capability is there if the panel wants to utilise it.
Senator ABETZ: If I wanted to pull teeth, I would have become a dentist.
Dr Morehead : I think there would not be a circumstance where the staff would write a whole report, but I am trying to give the nuances of the type of task that they do.
Senator ABETZ: We will find out in due course, no doubt.
Ms Paul : We do think they are a talented bunch of people.
Senator ABETZ: If they are in your department, they must be!
Ms Paul : Indeed.
Senator ABETZ: It would go without saying. Can we be advised as to whether Ms Gillard's former adviser is part of this panel of five—or secretariat of five.
Mr Kovacic : There is no former adviser from Minister Gillard's office as part of the secretariat.
Senator ABETZ: Thank you. In part (6) of the question I asked:
Was the Productivity Commission on the shortlist of people or bodies considered to conduct the review; if not, why not.
We are told, 'The Department did not identify the Productivity Commission as a potential organisation to undertake the review. This is because it was considered important that the person or persons undertaking the review have a practical knowledge and appreciation of contemporary workplace relations issues and practices.' Didn't the Productivity Commission recently have a look at the retail sector in relation to matters of workplace relations?
Mr Kovacic : I think the nature of that inquiry was much broader than workplace relations, though there were some issues raised by submitters to that inquiry. I think from memory that the purpose of the inquiry was about issues going to online and some of the challenges confronting the retail industry flowing from that.
Senator ABETZ: Yes, but they did talk about matters of workplace relations in their report.
Mr Kovacic : I think they reflected some of the concerns that were expressed by parties that made submissions to that.
Senator ABETZ: And they made certain comments about that as well. They did not only reflect and regurgitate; they also made some considered views known, did they not?
Mr Kovacic : And I think one of those recommendations or findings was that some of the issues were issues that were appropriately considered in the context of the review of modern awards and the post-implementation review of the Fair Work Act.
Senator ABETZ: Yes, the Fair Work Act. So can you tell me what is the practical knowledge of Mr Edwards of matters of workplace relations?
Dr Morehead : Mr Edwards has very specific expertise in terms of, obviously, economics, so his contribution, when you look across the qualifications and experience of the panel, is that he—
Senator ABETZ: No, I am only asking about Mr Edwards. We will go through each one individually.
Dr Morehead : What he brings to the panel is his excellent skills in looking at economic implications.
Senator ABETZ: A doctoral dissertation on financial deregulation, the Australian monetary policy mechanism and the effectiveness of monetary policy, besides writing a book on how good John Curtin was as Australia's greatest Prime Minister—can you tell me again how this relates to practical knowledge and appreciation of contemporary workplace relations issues and practices? Because that is the reason we did not appoint or even consider the Productivity Commission, and Mr Edwards, in the CV provided by the department as to why he was appointed, makes no mention at all of any workplace relations experience.
Ms Paul : Dr Edwards is a highly regarded economist and member of the Reserve Bank, as you know. He will offer particular expertise in the areas of productivity and other considerations, but the panel needs to be—
Senator ABETZ: And the Productivity Commission could not provide expertise, could it!
Ms Paul : The panel needs to be seen as a whole, of course. The minister was quite clear when he appointed the panel that the panel members complemented each other well in terms of expertise across a wide range of matters.
Senator ABETZ: We were told—and I go back to the answer that I was given. That was very nice filler, but tell us: what is Mr Edwards's practical knowledge and appreciation of contemporary workplace relations issues and practices?
Ms Paul : We have talked about Dr Edwards's expertise and I have talked about the minister's views about the whole panel working together on this review across a range of matters.
Senator ABETZ: No, what is his practical knowledge and appreciation of contemporary workplace relations issues and practices?
Mr Kovacic : I would probably highlight a couple of things. I am assuming that you are relying on the CV that was attached to the media release. When he worked as an adviser to the Treasurer and then Prime Minister, his areas of responsibility included—
Senator ABETZ: That would be Mr Keating?
Mr Kovacic : that is correct—international trade issues, labour market reform and monetary policy. He then went into the private sector as a chief economist for the ANZ global financial group HSBC.
Senator ABETZ: They are really into labour issues, aren't they—workplace relations issues!
Mr Kovacic : As an economist, he certainly is well positioned to comment on issues relating to the labour market and economic issues. His membership of the board of the Reserve Bank is again an area that would give him some insights into some of the challenges, whether it is around productivity more broadly but, more generally, some of those issues around the labour market as well.
Senator ABETZ: And I suppose the Productivity Commission does not have any economists on it, does not have any people on it that have an understanding of productivity issues, does not have people that have dealt with all of the matters that you have just relayed to us?
Dr Morehead : The Productivity Commission does have economists—
Senator ABETZ: You surprise me!
Dr Morehead : because economists are obviously central to investigations of this type of legislation.
Senator ABETZ: Of course they are, but the Productivity Commission was dismissed from even being considered because of this shortcoming, and yet you have said nothing this evening that would qualify Mr Edwards. If we go to Professor McCallum, sure, he is a renowned expert in the academic field but, when you come to the issue of practical knowledge as opposed to academic knowledge, one may well ask some questions. But I think I have canvassed this enough to make the point that the dismissal of the Productivity Commission simply does not stand up.
Ms Paul : And His Honour Justice Moore of course is a practitioner and meets fully what our answer seeks. As I said before, the minister I am sure would always want the panel to be considered as a whole. He has not even, for example, designated a chair or a leader of the panel.
Senator ABETZ: So one out of three ain't bad—is that what you are telling us? One out of three ain't bad?
Ms Paul : Not at all. I did not say that. That is not my point, but the minister made the point that he has not identified a chair and that the three reviewers will complement each other well.
Senator Jacinta Collins: Senator Abetz, I do not think that the government would accept your assessment of Ron McCallum. He, indeed, conducted the review of the Victorian industrial relations system—
Senator ABETZ: And the state Labor government?
Senator Jacinta Collins: post the Kennett reforms, which were more extreme than the Work Choices reforms.
Senator ABETZ: And is that the same Professor McCallum—who will cast his independent mind—who said that, as far as he was concerned, the Fair Work Act would not be amended in any significant way for the next decade? So he will potentially have to make a report saying, 'Oops, I was wrong'? I doubt that is going to happen.
Ms Paul : I think the terms of reference—
Senator ABETZ: I am sure none of Mr Howard's previous labour market advisers and others were considered for the panel, were they?
Ms Paul : I think the terms of reference are clear for the review of this.
Senator THISTLETHWAITE: Can I just say something, Chair. I actually find that quite offensive to Professor Ron McCallum's integrity, really. To suggest that someone of that standing and that calibre and respect would not take an impartial view of the job that he has been assigned to perform, I think, is disrespectful and I think Senator Abetz should really consider withdrawing that statement.
Senator ABETZ: Professor McCallum is a public player in this area. He was highly critical of the Howard government. After the Fair Work Act he said it is basically a good piece of legislation that will undoubtedly stick around for 10 years. He is a player, and I am pretty sure that he accepts that I have been relatively soft.
Senator THISTLETHWAITE: You, Senator, implied that he would not take an impartial view in accordance with the terms under which he had been employed.
Senator ABETZ: No, I am giving him the benefit of saying in this review that he was in fact wrong when he said the Fair Work Act would not be amended in the next 10 years. I hope he comes out in the report and says that that is what he will find to be necessary and that he will be man enough to say that he was wrong, but the proof will be in the report.
Senator Jacinta Collins: But, Senator Abetz, you are suggesting something contrary to your own policy.
Senator ABETZ: Sorry?
Senator Jacinta Collins: Your own public position in relation to the Fair Work Act is that it should not be, at this point in time, changed in any considerable fashion.
Senator ABETZ: No, that was—
Senator Jacinta Collins: Sorry, that was a little bit ago!
Senator ABETZ: That is right. Time moves on. We said it should be unamended for one term of the parliament so we could see it bed down. We are now seeing it being bedded down with some problems emerging—hence the review, which we fully support. As I have said many a time, we will be informed by the evidence that comes before that review panel—albeit, given the skewed nature of the terms of reference and the panel, we will have to wait and see what the actual outcome is. But we have indicated that for the next election we will be looking at amendments, so there is nothing strange about that.
Senator Jacinta Collins: I am glad you have clarified your current position.
Senator ABETZ: There is no need for clarification. In question 502, which was from supplementary budget estimates, I asked:
Has the Department provided any advice to the Minister that aspects of the Fair Work Act need clarification?
We got this—I must say—obfuscating answer. I do not want to know what the advice is, so we do not want this nonsense about legal professional privilege. Sure, I asked about that, but surely I am entitled to an answer as to whether any advice has been provided without telling me the nature of that advice.
Ms Paul : You can see the problem, though. The problem is that the way you have asked the question suggests that we have to say whether we had advised on clarification, which we cannot say.
Senator ABETZ: Sorry?
Ms Paul : The nature of your question—
Senator ABETZ: You can say either yes or no to the first bit and then provide the legal privilege argument in relation to the next question, but that does not excuse you from answering the first question.
CHAIR: We will have to get a copy of that question.
Ms Paul : I think it is problematic because, in answering the first question, we would be—the way I read it—in effect having to tell you the nature of the advice, which we cannot do.
Senator ABETZ: No, not at all.
Ms Paul : Perhaps you could reframe the question.
Senator ABETZ: Has the department provided any advice to the minister that aspects of the Fair Work Act need clarification?
Ms Paul : That goes to the nature of the advice.
Senator ABETZ: No, it does not.
Ms Paul : Yes, it does.
Senator ABETZ: I want to know whether or not the act needs clarification. It should be a yes or no answer. The follow up question might be—as I did ask; and I suspected you would not answer that part, and I accept that—what the nature was of that advice.
Mr Kovacic : We provide advice on the operation of the Fair Work Act on a regular basis, and on an ongoing basis, to the minister. We really cannot go beyond that in terms of—
Senator ABETZ: We will go to another question where in fact you did indicate that you had got legal advice on a particular matter and given it to the minister. If I recall correctly, you may have done that in relation to the Qantas dispute. Without telling us what the advice was, you said, 'Yes,' you had. What is the difference? You pick and choose and you cherry pick, and you try to give us a scattering of information that you want to give. But when you do not, you do not give it.
Mr Kovacic : What I can say—
Senator ABETZ: There is no consistency.
Mr Kovacic : What I can say is that the department provides advice to the minister on an ongoing basis on the operation of the Fair Work Act.
Senator ABETZ: Why were we not told that about the Qantas dispute?
Ms Paul : I do not think we can accept the point on inconsistency. I am happy to look at this again for you. We always try to do the right thing by this committee. We always have. I cannot accept a point about the department being inconsistent. I am happy to look at this again. I fear we may find that it strays too close to the nature of the advice, but I will look at it again.
Senator ABETZ: Let us be polite and simply indicate that there is not a meeting of our minds on that issue. Parliamentary Secretary, In an article on the 14 February 2012 in the Australian Financial Review, it is stated:
Mr Shorten told the Fairfax radio network yesterday that an internal Qantas review aimed at reducing in-house maintenance would be announced "within days" …
How did Mr Shorten know that?
Senator Jacinta Collins: I will take that on notice.
Senator ABETZ: Did he obtain that information by a leak out of Qantas or by a private briefing from Qantas? If it was a private briefing from Qantas, was he authorised to make that statement public? Potentially that could have an impact on share prices and other issues. It is appropriate that a minister be pre-briefed, but, of course, that confidentially needs to be maintained. When you are a cabinet minister, in particular, that is vitally important. That sort of information getting out to the market place can have some very serious consequences. If we can be advised how he got that information and why he—
Senator Jacinta Collins: Indeed, if that is appropriate.
Senator ABETZ: Sorry?
Senator Jacinta Collins: I will take the question on notice, and, if it is appropriate that you be advised how the minister was advised, taking into account the very points you have just made, we will respond.
Senator ABETZ: It could only have come from one quarter. It would not have come from the department; it would have come from Qantas.
Senator Jacinta Collins: I am not going into hypotheticals. I do not know any detail in relation to that matter—
Senator ABETZ: Take it on notice then.
Senator Jacinta Collins: other than that there might be other privacy issues.
Senator ABETZ: How are we going with the appointment of a new president of Fair Work Australia? Have we consulted heavily with the trade union movement on that one?
Ms Paul : Well, we are—
Senator ABETZ: No, I withdraw that. The time is getting shorter. Can I be assured that a recent departure from Mr Shorten's office is not paving the way for a certain appointment to the presidency of Fair Work Australia?
Ms Paul : Obviously, I am not going to go into personnel. But, in terms of process, the process will unfold in the way that it should in terms of consultation and so on. I can step through where it is up to if you wish.
Senator ABETZ: When do we anticipate that we will have an announcement, just roughly?
Ms Paul : I am not sure when there will be an announcement, but it is—
Senator ABETZ: When do you think you will be in a position to make a recommendations or to provide a list to the minister?
Ms Paul : I have done that.
Senator ABETZ: The list is with the minister?
Ms Paul : That is right.
Senator ABETZ: Parliamentary Secretary, when do you think the minister will be in a position to indicate?
Senator Jacinta Collins: I have no knowledge of this matter but I will take that on notice.
CHAIR: So I am not on the list?
Senator Jacinta Collins: Sorry, Senator Marshall.
CHAIR: Can you rule me out?
Senator Jacinta Collins: I do not know. Did you apply?
Senator ABETZ: Be careful—it could prejudice things.
Senator Jacinta Collins: Did you apply? Is that a preselection ticket?
CHAIR: I did not know you had to apply.
Senator ABETZ: Senator Feeney could be interested, though. All right—
Senator FISHER: You would have to appear before Senate estimates, though, Senator Marshall, so you would certainly want—
CHAIR: What a joy that would be!
Senator ABETZ: In the portfolio additional estimates document, on page 54, we are told we are having a social and community sector education and information program amounting to $1.2 million. Why do we think that is necessary and what form will that take?
Ms Anderson : The funding is for an education and information program resulting from the social and community sector equal remuneration decision. Basically, the program is to provide information to the sector on the decision. The decision is obviously to be implemented over eight years and the program is to assist the industry to understand the decision.
Senator ABETZ: So it is for over eight years but we are only funding it for two years?
Ms Anderson : It is basically, I suppose, to provide that initial information to them of how it is to be implemented.
Mr Kovacic : This was something that the Prime Minister announced last year at the time that she announced the government would fund its share of that outcome.
Senator ABETZ: I am not saying it had not previously been announced; I was just wanting to know about it. Just for the record, as to Professor McCallum's quote, somebody has kindly provided it to me:
After this avalanche of changes, it is my view that the FW Act will be with us for the next decade. Doubtless some tinkering will take place, but in my judgement its framework will remain largely intact.
Can I go to the building and construction amendment bill and turn to the switch-off provisions. At the Senate committee's hearing on this bill we were told that the switch-off provision was not sought by the trade union movement, and was not supported by the trade union movement; was not sought by the employers, and was not wished for by the employers; and that it had not come up with departmental consultations during the development of this bill. So, Parliamentary Secretary, I think you or the minister's office must be the harbour of the reason why the switch-off provision was thought of and why it has found its way into the bill, when it seems to be a bit of an orphan. Neither the unions nor the employers want it, and it did not come up in departmental consultations.
Senator Jacinta Collins: Senator Abetz, I cannot claim credit for it, so I will have to take that question on notice.
Senator ABETZ: You are very generous to say 'claim credit for it'. I am not sure you would actually want to claim credit for it. It seems to be an orphan. Nobody knows how it came about, nobody wants it and one wonders what it is doing in there. I would imagine, Parliamentary Secretary, that you will take this on notice: can the minister's office assure us that his office was not involved in what has now been labelled the 'dirt file' on Ms Kathy Jackson that is allegedly doing the rounds in the government?
Senator Jacinta Collins: I have no knowledge of a dirt file myself, so yes, I will take it on notice. But you are asking: did Minister Shorten's office have knowledge of such?
Senator ABETZ: Yes—or any involvement in its preparation. Is the department aware of the AHRI research report—the Australian Human Resources Institute report of January 2012?
Mr Kovacic : We are.
Senator ABETZ: It has some key findings, such as that 63 per cent of respondents report an increased level of record keeping under the Fair Work Act, which was 58 per cent in 2010; and 29 per cent report that productivity has decreased, while 13 per cent reported that in 2010. And so we are informed of a whole lot of key indicators. What store does the department place in this report?
Mr Kovacic : I am aware of the report. It is certainly a reflection of the views of those that were surveyed. Beyond that, I am really not in a position to comment.
Senator ABETZ: Is it a credible report? Is the Australian Human Resources Institute a credible organisation?
Mr Kovacic : I think AHRI is recognised as an organisation. This is either the second or third in a series of surveys that it has undertaken. Beyond that, I am really unable to comment.
Senator ABETZ: Is it something you would recommend the minister rely on?
Mr Kovacic : Without having read it in detail myself—I have certainly read the—
Senator ABETZ: But you are aware of it?
Mr Kovacic : I am aware of it.
Senator ABETZ: All right. Who in the department would have read it?
Ms Paul : We would probably have to take that on notice and find out. Your point is: to what extent can it be relied upon? At this stage we are not really able to make a judgement like that so we will have to take it on notice.
Senator ABETZ: It came out last month; it has been around and it has been commented upon. I would have thought that the department would have prepared a brief on that. Has the department prepared a brief in relation to this for the minister's office?
Ms Paul : I do not know but I am happy to take that on notice.
Senator ABETZ: Does somebody in the room know whether it has or has not? Silence reigns supreme!
CHAIR: It does not look like it.
Mr Kovacic : I will take it on notice.
Ms Paul : We would need to take it on notice.
Senator ABETZ: Silence does not indicate anything—
Senator Jacinta Collins: I do not recall having seen such a brief myself.
Senator ABETZ: All right. But, with respect, that is not necessarily surprising. I know what it was like being a parliamentary secretary, unfortunately.
Senator Jacinta Collins: Some things might surprise you!
Senator ABETZ: That is, unless you do all the work—
Senator Jacinta Collins: I would never claim such a thing!
Senator ABETZ: But I will not ask about that. In supplementary budget estimates QON 0784_12 I asked about Fair Work Australia appointments and I asked about a shortlist that was submitted to the minister's office. From memory, there were 10 applicants.
Mr Kovacic : That is correct.
Senator ABETZ: I then asked about the background of the 10. Was Mr Lee selected from this group of 10?
Mr Kovacic : That is correct.
Senator ABETZ: How was he classified? Was he one of those employed in government or was he one who was a former trade union official?
Mr Kovacic : Senator, could you just repeat the number of the question?
Senator ABETZ: It was 0784.
Mr Kovacic : He would have been one of those classified as 'in government'. It is based on the most recent employment experience of the shortlisted applicants.
Senator ABETZ: What about the other person that was employed in government? Did he or she also have former trade union experience?
Mr Kovacic : I would have to take that on notice just to refresh my memory as to who it was. Can I just mention that, at that time, Mr Lee was a general manager of Fair Work Australia but prior to that had spent a number of years in the Victorian public service at a very senior manager level.
Senator ABETZ: And prior to that?
Mr Kovacic : I think he had worked as a ministerial adviser in Victoria.
Senator ABETZ: Thank you.
Mr Kovacic : There was certainly a union background in terms of having worked with the ASU, but I think for much of the past decade he had been in the public sector.
Senator ABETZ: Yes, having been appointed by Labor governments from the trade union movement—and this is now just a continuation by another Labor government.
Senator Jacinta Collins: That is not quite as direct as former chief of staff.
Senator ABETZ: We were promised that there would not be an endless tribe—
Senator Jacinta Collins: And there isn't.
Senator ABETZ: of ex-trade union officials appointed to Fair Work Australia by, potentially, the next Prime Minister of Australia. Mr Rudd was, at the time, the Leader of the Opposition. We now cover some of these things by fancy language to say 'Yes, they have had some government experience and as a result we no longer assert that they are ex-trade union officials.'
Mr Kovacic : Can I just add that that is the basis on which we have responded to all questions on notice about the background of appointees.
Senator ABETZ: Yes, I know. We will now have to re-vet some of these.
Senator Jacinta Collins: Senator Abetz would rather a response that says, 'Highlight if someone has ever had an association with a trade union, albeit six months in their employment career.' Is that what you would prefer Senator Abetz?
Senator ABETZ: Sorry?
Senator Jacinta Collins: Your suggestion is that anyone who has any union association is a union hack. And that is just not relevant.
Senator ABETZ: Who used the term 'union hack'? I think you did.
Senator Jacinta Collins: On other occasions you have.
Senator ABETZ: I do not think it has been on the Hansard in this hearing. You are being very defensive.
Senator Jacinta Collins: On other occasions you have.
Senator ABETZ: If the hat fits, wear it.
CHAIR: Let's move on.
Senator ABETZ: I go now to parliamentary question 1491 about the Workplace Flexibility Team. Tell me, does anybody in the workplace flexibility team actually have an individual flexibility agreement?
Ms Anderson : No.
Senator ABETZ: So, they do not practice what they preach. What do they actually do?
Mr Kovacic : Can I just say that one of the staff members works part time.
Senator ABETZ: Sorry?
Mr Kovacic : We have staff members there who work part time—
Senator ABETZ: And?
Mr Kovacic : which is a flexible working arrangement.
Ms Paul : Yes, this is about flexibility. We are talking about a broad range of flexibilities.
Senator ABETZ: So part time is now an individual flexibility agreement, is it?
Mr Kovacic : The person is a parent and has young children. It is designed to assist her in balancing her work and family obligations.
Senator ABETZ: Is that an individual flexibility agreement?
Mr Kovacic : I did not say it was. I said it was a flexible working arrangement.
Senator ABETZ: I asked whether any of the staff in that team were the subject of an individual flexibility agreement.
Ms Paul : We answered that.
Senator ABETZ: The answer is: no.
Ms Paul : Correct. And then Mr Kovacic went on to talk about what this—
Senator ABETZ: He went on to answer something that was not asked. I did not ask how many part-time workers there were.
Ms Paul : It is relevant to the nature of his team.
Senator ABETZ: No, there was no question asked about part-time workers. Next we will be seeing in the government statistics, when flexibility is talked about, that we have all these millions of Australians working part time! The flexibility is working! Please!
CHAIR: I remember when this department used to boost the numbers of individual contracts under Work Choices. This department had more than anyone else in the country.
Senator ABETZ: What does the team actually do?
Ms Anderson : The team is responsible for providing policy advice with respect to workplace flexibility under the Fair Work Act.
Senator ABETZ: How many are there?
Ms Anderson : Within the team?
Senator ABETZ: Yes.
Ms Anderson : There are four people in the team, currently.
Senator ABETZ: Are they going to be involved in the review of the individual flexibility agreements? As I understand it there is going to be a separate review.
Mr Kovacic : That is a review that is undertaken by Fair Work Australia.
Ms Paul : Not by the department.
Senator ABETZ: Is the team going to put any policy suggestions to Fair Work Australia's review?
Mr Kovacic : At this stage that review has not commenced. It is a decision that the department has not taken.
Senator ABETZ: Will it?
Mr Kovacic : I cannot answer that.
Ms Paul : We have not considered that. Now that you have mentioned it we might consider it, yes or no. It is early days.
Senator ABETZ: Parliamentary Secretary, the unions allegedly are pushing for the Gillard government to make greater use of its purchasing power to drive pay and condition improvements outside of the enterprise bargaining system. What is the government's response to that?
Senator Jacinta Collins: I will take that on notice.
Senator ABETZ: Thank you. I have just come across another Professor McCallum quote but I will not aggravate anybody. I will just move on. Is the government intervening in the Federal Court case, which started on 1 February, in relation to student minimum hours—the 1½ hour case?
Mr Kovacic : No.
Senator ABETZ: So the government does not have a view in relation to what would be good policy in that regard, Parliamentary Secretary?
Senator Jacinta Collins: I will take that on notice.
Senator ABETZ: The case will be over and out by the time that occurs. Can I ask about the Fair Work Act review background paper. On page 9, they finally talked about productivity. They have an approach to productivity that is there for all to see. Without going into too much detail, would you agree with me that on page 125 of the annual report, under the heading of 'Productivity', we are told the most common measure of productivity growth, GDP per hour worked in the market sector, is the measure—and then we are told how it has decreased by one per cent, but that is not the point here—so that here in the annual report, we are referring to a different measure to that to which the background paper refers? Is that correct?
Mr Kovacic : I do not have the annual report in front of me.
Senator ABETZ: On page 125 there is a subheading about 10 lines down the page headed 'Productivity'. We are told the most common measure of productivity growth is GDP per hour worked in the market sector. That is not the same measure that is being spoken of in this paper.
Mr Kovacic : Can I just take that on notice, because I actually wonder whether the description of trend labour productivity in the market sector might be a different way of saying exactly the same thing.
Ms Paul : Yes, I suspect it is the same.
Mr Kovacic : I suspect it is.
Ms Paul : But I think that given the hour we might need to take it on notice.
Senator ABETZ: All right, take that on notice.
Ms Paul : I note that page 125 talks in trend terms. Anyway, I think we had best take that on notice.
Senator ABETZ: In parliamentary question on notice 1327 I asked a whole list of questions, including questions (6), (7) and (8). This relates to the Qantas dispute:
(6) At what time was a teleconference with ministers convened.
(7) At what time did the teleconference with ministers take place and which ministers were involved.
(8) Were any other people who were not Ministers involved in the teleconference; if so, who.
We are told in answer to (6), (7) and (8) that the issue has been addressed in public statements made by Minister Evans and Minister Albanese. Can you please draw to my attention anywhere where, in public statements by Minister Evans and Albanese, they told us who else was involved in the teleconference?
Mr Kovacic : I would have to take that on notice.
Senator ABETZ: I will be gobsmacked if you can find that. One wonders again why are we given such an obfuscating answer and why we cannot be told the exact time, because public statements that are made are often not necessarily accurately reported and, if we rely on media reports, we get chided for not getting the direct, proper source straight from the minister. So you go to the trouble of specifically asking and you then have to search the newspapers to try to find an accurate version. So can you please retake questions (6), (7) and (8) on notice?
Ms Paul : Sure.
Senator ABETZ: In answer (12)—I have just found it: 'Several stakeholders suggested on the public record that the dispute was having a damaging effect. Legal advice concerning the Qantas dispute was provided to the minister prior to 29 October 2011.' Here we have the department telling us publicly that, yes, the department had provided legal advice to the minister. Ms Paul?
Ms Paul : I think my point still stands. I am even more comfortable with the point I made before, because this tells us—
Senator ABETZ: I do not know that, because you are confirming legal advice with providers—
Ms Paul : We are confirming that we gave advice. We are not saying what—
Senator ABETZ: Exactly.
Ms Paul : What I was saying about the question on notice was that in answering your question we would in effect be giving you an answer of the content of the advice. That is the point I was making before on the question on notice.
Senator ABETZ: I do not know how that is. But, as we say, the hour is getting late. On page 14 of the administrative arrangements order in part 6, we have the heading 'The Department of Education, Employment and Workplace Relations: matters dealt with by the department'. As we go down the list, we have 'promotion of flexible workplace relations policies and practices'. Can you tell us how that has been promoted thus far?
Ms Paul : I am not sure about the context of the AEOs. I have not got them in front of me. I imagine what it is getting at is the sorts of things we were talking about before.
Senator ABETZ: What sort of promotion activities have you undertaken? Under the administrative orders the department is required, amongst other things, to promote flexible workplace relations policies and practices. I am just wanting to know what has been happening in this area of promoting flexible workplace arrangements and practices. And please do not tell me about part-timers.
Ms Anderson : I am not sure where the source of that wording comes from.
Senator ABETZ: It is from the administrative order, page 14, part 6.
Ms Anderson : I suppose, broadly speaking, my section in the department, the diversity and flexibility branch, is responsible for looking at workplace flexibility arrangements from a policy perspective. As an example, at the moment we are looking at consulting with stakeholders about the right to request flexible working arrangements for carers. We also have responsibility for providing some funding to the domestic violence clearinghouse, for example. They are some broad examples of the type of work that we would do.
Mr Kovacic : Certainly the team was involved in the development of the paid parental leave legislation and it continues to liaise closely with departments concerned with families, housing, community services and Indigenous affairs—those sorts of issues.
Senator ABETZ: Is it involved, for example, in promoting flexibility by suggesting that broad flexibility arrangements ought to be in enterprise agreements and that modern awards should not try to limit the degree of flexibility that is available to workers? Are you engaged in any of that sort of work—that flexibility is a good thing?
Mr Kovacic : As Ms Anderson has advised, it is certainly policy advice in terms of a broader interpretation of flexibilities and initiatives which support workers in dealing with managing or dealing with work and family pressures, as well as other issues.
Senator BACK: Would productivity increases form part of those policy discussions and negotiations you would have in terms of flexibility?
Mr Kovacic : If I use the example that Ms Anderson alluded to and the consultations around the right to request, to the extent that that would be an amendment to the Fair Work Act, the objects of the Fair Work Act which go to productivity would be entirely relevant and would be a key consideration as part of that process.
Senator BACK: Ms Anderson, can you give us any examples supporting what has just been said?
Ms Anderson : In terms of expanding the right to request, for example, there are a lot of strong linkages with productivity in respect to that policy issue. Another key agenda for the government at the moment is, for example, tele working. Things like expanding the right to work request certainly supports those broader policy issues that go to improving productivity at a national level. So certainly we do think of those strong linkages with productivity.
CHAIR: I think Senator Abetz has the last question.
Senator ABETZ: Could you please take on notice and just give us a brief as to what you are actually doing in that area. Who is the departmental tweeter?
Senator Jacinta Collins: Not me.
Senator ABETZ: Nobody in the room? Nobody is putting up their hand?
Mr Kovacic : You are looking at the wrong person here.
Senator ABETZ: I am with you on that one. We finally found a common cause. The tweeter tweeted an AWU tweet, or retweeted an AWU tweet, which talked about the harmonised health and safety laws, which is fine. But it includes 'Our union has a long and proud history of standing up', et cetera, which I must say is possibly not something that the department ought to be involved in. Can you go to the tweeter and ask them just to give us a list of how many trade union tweets they have retweeted and how many employer organisation tweets they have retweeted. I understand they have not retweeted any of mine, much to my chagrin.
Senator Jacinta Collins: You have done some?
Senator ABETZ: I would be interested in those two categories, please. Do we know when tweeting started in the department?
Ms Paul : I cannot recall. I am not familiar with these cases either, but I am happy to take it on notice.
Senator ABETZ: All right. Over the last 12 months—
Ms Paul : Sure. We have probably been tweeting for less time than that.
Senator ABETZ: and how many union tweets have been retweeted and how many employer organisation tweets have been retweeted.
Senator Jacinta Collins: How long have you been tweeting for, Senator Abetz, just so we can track yours?
CHAIR: All right, as much as I am enjoying this I have had enough.
Senator Jacinta Collins: How long have you been tweeting for?
Senator ABETZ: However long my staff have been.
CHAIR: Thank you, Ms Paul and Mr Kovacic and parliamentary secretary. We now suspend until tomorrow morning.
Committee adjourned at 23 : 01