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Tuesday, 10 March 2009
Page: 1224

Senator Abetz asked the Minister representing the Minister for Employment and Workplace Relations, upon notice, on 23 December 2008:

With reference to the answer to DEEWR question no. EW631 09 taken on notice on 3 June 2008 during the 2008-09 Budget estimates hearings of the Education, Employment and Workplace Relations Committee:

(1)   Can a copy be provided of the signatory page of the document referred to as ‘document labelled as an Australian Workplace Agreement’.

(2)   Does this page disclose the signature of the employer.

(3)   On what basis is it claimed in the answer provided that ‘this document was not signed by the employer’.

(4)   Whilst it is acknowledged that the claimant stated in an interview that she had not seen an Australian Workplace Agreement, was she ever presented with a copy of the ‘document labelled as an Australian Workplace Agreement’, which purportedly had the claimant’s signature attached to it.

(5)   Was the claimant asked to verify or deny that it was her signature attached to that ‘document labelled as an Australian Workplace Agreement’.

(6)   Given the date that appeared on the ‘document labelled as an Australian Workplace Agreement’ and the claimant’s commencement of employment, was any further verification or information sought from the claimant in relation to the document and her previous sighting of it.

(7) (a)   On what dates did Ms Healy make back pay payments; and (b) were three of those payments made during 2007; if so, on what dates were those payments made.

(8)   On what date was Ms Healy officially charged.

(9)   On what basis was it reported in the Hobart Mercury that Mr Wilson had advised that Ms Healy ‘had not voluntarily complied with the Ombudsman during the investigation’.

(10)   Is it acknowledged that payments for the underpaid staff were in fact made prior to Ms Healy being officially charged?

(11)   Is voluntary payment prior to being charged considered to be voluntary compliance; if so, why did Mr Wilson assert Ms Healy had not voluntarily complied during the investigation.

Senator Ludwig (Minister for Human Services) —The Minister for Employment and Workplace Relations has provided the following answer to the honourable senator’s question:

(1)   No.

(2)   No.

(3)   The Document was not signed by the employer.

(4)   Please refer to McIver V Healey [2008] FCA 12 (paragraphs 32 - 35).

(5)   Please refer to the Workplace Ombudsman’s response to DEEWR Question No. EW631_09 of 3 June 2008.

(6)   No. It was not operationally relevant to do so, as the investigation did not extend to making inquiries into the employer’s failure to lodge the Agreement with the Workplace Authority (as required by Part 8, Division 4 of the WR Act). In his decision, Marshal J, (McIver V Healey [2008] FCA 2) indicates the parties agreed that Mrs Healey had breached eight terms of the award. They were:


(a)   A schedule detailing when payments were made by Theatre Royal Hotel was provided by the Workplace Ombudsman in response to DEEWR Question No. EW632_09 of 3 June 2008. In addition to the payments outlined in this answer, two further employees have since collected their outstanding entitlements from the Collector of Public Moneys.

(b)   All three payments made in relation to outstanding employee entitlements were made in 2007.

(8)   The commencement of civil penalty litigation does not equate to the laying of a charge. The Workplace Ombudsman filed the original statement of claim in the Federal Court on 27 September 2007.

(9)   In his media release of 14 April 2008, Mr Wilson advises that: ‘Although the underpayment was paid by Mrs Healy prior to the penalty hearing, voluntary compliance during the Workplace Ombudsman’s investigation proved unsuccessful’

(10)   Civil penalty proceedings were commenced on 27 September 2007 after the final payment was made by Ms Healey on 13 September 2007.

(11)   The Workplace Ombudsman exhausted all mechanisms available to the agency to rectify the underpayments before it considered initiating civil penalty proceedings. Further, the Workplace Ombudsman does not consider the recovery of underpayments at the 11th hour, just prior to the filing of proceedings as ‘voluntary compliance’.