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Education and Employment Legislation Committee
Attorney-General's Department

Attorney-General's Department


CHAIR: Today the committee will focus on industrial relations matters under the responsibility of the Attorney-General's Department; small business matters under the responsibility of the Department of Industry, Science, Energy and Resources; and employment, industrial relations and small business agencies. The committee will commence with the Industrial Relations Group in the Attorney-General's Department. I welcome the Minister representing the Minister for Industrial Relations, Senator the Hon. Marise Payne, and representatives from the Attorney-General's Department. I also welcome Mr Martin Hehir, Deputy Secretary, Industrial Relations Group. I remind senators that questions concerning industrial relations corporate matters should be pursued in the Legal and Constitutional Affairs Legislation Committee hearing. Minister, do you wish to make an opening statement?

Senator Payne: No, thank you, other than to say Secretary Moraitis is attending a meeting this morning, which has taken him away from estimates, but he will be here in due course. Mr Hehir is taking care of matters.

CHAIR: Mr Hehir, do you wish to make an opening statement?

Mr Hehir : No, thank you.

Senator SHELDON: Thank you very much, Minister and Deputy Secretary, for coming this morning. I want to ask some questions initially regarding what information and work is being carried on regarding coronavirus and the effect on employees, employment, what protections they have. Obviously this is a deep concern within the community. Preparation for coronavirus has arisen out of what had happened previously with SARS, and there have been, as the public understands and from reports, plans put forward about what could happen in an event of a wider breakout of coronavirus. Specifically I want to ask the department what advice has been asked for or provided to the Attorney-General with respect to potential workforce issues related to coronavirus.

Mr Hehir : Probably the most public piece of advice out there at the moment is the published information on the Fair Work Ombudsman website. They're also fielding calls from both employers and employees. There's a very public set of information out there to support people in their decision-making, but I might pass to Ms Kuzma to give you some more detail.

Ms Kuzma : Good morning, Senators. We are feeding into broader whole-of-government considerations in terms of industrial relations, employment, work health and safety implications of the coronavirus. In relation to work health and safety issues, employers are required to ensure as far as reasonably practicable the health and safety of their workers and others at the workplace, including by managing the risk of exposure to the virus. Workers must also take reasonable care not to adversely affect the health and safety of others and to cooperate with reasonable employee health and safety procedures and policies. Safe Work Australia has also put out some public information in this space in relation to obligations in terms of the virus. Does that answer your question?

Senator SHELDON: Yes, just a couple of other questions. The advice that's going to employers wasn't quite clear. Where is the advice up to for employers and what their responsibilities are?

Ms Kuzma : The Fair Work Ombudsman has an advice and education function under the Fair Work Act. It has published information on its website about obligations and entitlements. Safe Work Australia also has published some information and guidance. The Department of Health has also published information and guidance. The Fair Work Ombudsman has an information line whereby employers and employees can contact that information line and ask specific questions in relation to their specific circumstances—for example, what their entitlements might be under an award, the National Employment Standards, an enterprise agreement or their contract of employment.

Senator SHELDON: If they were infected or suspected to be infected as a result of their work performance—maybe a nurse, a doctor, an aviation worker; I also point out gig workers, the obvious ones being food delivery and ride-share workers, Uber, Uber Eats, Deliveroo—what advice has been given on those circumstances?

Ms Kuzma : It's not specific advice in relation to particular cohorts of individuals; it's advice about the virus, work health and safety and entitlements, but I think the consistent message is that everybody's facts and circumstances will be different and that there is a mechanism through the Fair Work Ombudsman information line to call and talk to somebody specifically about the situation that an individual employee, worker or employer is in, and someone will talk through that and, as well, refer to information on the website about that.

Senator SHELDON: What's your advice to a gig worker specifically? Has the department taken into account gig workers? I might add that many in the community consider them misclassified; Uber Eats and Deliveroo think that they're contractors. There's a series of pending decisions and other litigation that I'm sure will be occurring as time goes by on whether they're employees or contractors. Can you delineate between what an employee's entitlement is and what a contractor's entitlement is in the case if they were infected as a result of their work?

Ms Kuzma : I'm not in a position to give legal advice to the committee, so I'll talk in general terms. Entitlements under a contract, whether that be a contract of employment or a different type of contract, would be where you start as an individual. Work health and safety obligations and entitlements apply to workers generally.

Senator SHELDON: Let's extend it slightly further than what you're saying. If you're a gig worker and you're considered a contractor by Uber Eats or Deliveroo, are you covered by workers' compensation?

Ms Kuzma : I don't want to talk in hypotheticals, because there are different arrangements in different states about workers' compensation legislation, so I wouldn't want to say—

Senator SHELDON: Are you aware of any states that cover contractors under workers' compensation?

Ms Kuzma : I would have to take that on notice to work through that specifically, unless Ms Anderson—we're talking about state based jurisdictions, in the Commonwealth, for Public Service and licensees.

Senator SHELDON: State and Comcare.

Ms Anderson : Sorry, can I just get you to repeat the question?

Senator SHELDON: There are a series of workers—gig workers, for example—that are contractors. There are a series of litigations about whether they're employees. If you're an employee, obviously workers' compensation automatically applies. I'm asking the question about what the protections and entitlements are for a gig worker—considered as a contractor by the likes of Deliveroo or Uber Eats, as examples; they may be a ride-share worker working for Uber or one of those other ride-share companies—if any, to workers' compensation if they contract coronavirus as a result of their work.

Ms Anderson : In terms of accessing workers' compensation if they attract coronavirus, I think that's potentially a step down the line. I think if somebody presents with coronavirus the first step is to take sick leave and the like. Whether they can then access workers' compensation is probably a different question. It doesn't necessarily flow that you would take sick leave and then take workers' compensation.

Mr Hehir : In relation to the broad question around whether contractors are entitled to workers compensation, I'm happy to take that on notice. I do understand that there are a number of jurisdictions, if not the majority of jurisdictions, where contractors aren't covered by workers compensation. It's up to them to manage their own insurance arrangements for those matters. Unfortunately, that turns on the interpretation of the law as to whether they are actually an employee or a contractor. That's not something that we give advice on; that's something determined by the courts themselves. There have been a number of cases put where people have sought to identify whether they are an employee or a contractor. The courts have made decisions based on the individual facts. We're not in a position to take the position of the court; that's their role. The broad position, as I understand it, is that contractors, as part of their own work arrangements, should look to cover their insurance arrangements. Employees are generally covered by workers compensation.

Senator SHELDON: Minister Payne, if contractors aren't covered by workers compensation and they aren't then entitled to compensation and they become victims of the virus—there have been a series of payments made, understandably, and certainly I support those payments being made, in the case of bushfires and droughts to businesses and farmers. In some isolated circumstances of some considerable time there were payments made to volunteer firefighters. There have been some small, minor one-off payments to individuals during the bushfires. Contract casuals and contract employees make up a large percentage of the workforce. Depending on how you calculate it, it's one in four to one in five. In the case of contractors, if they have to do a 14-day exclusion and they aren't paid for that period that they're off and they then become financial victims, is the government considering those contractors being covered by Comcare and engaging with the states to cover workers in the gig economy to be covered by workers compensation?

Senator Payne: Not that I'm aware, but I'm happy to take your question on notice.

Senator SHELDON: So the government hasn't given consideration in the Comcare—

Senator Payne: Not that I'm specifically aware of, but as I said I will take your question on notice.

Senator SHELDON: So the minister you're representing would be aware of whether there have been any endeavours to consider Comcare for contractors?

Senator Payne: That's the purpose of me taking the question on notice, so I can seek his advice.

Senator SHELDON: Thank you. Would you be able to come back to us today on that?

Senator Payne: I would endeavour to do so.

Senator WALSH: I refer to the Porter review of industrial relations. Mr Hehir, how many more discussion papers will be released as part of this process?

Mr Hehir : To date there have been five discussion papers. I think that at the last estimates we read out the list of topics that the minister had discussed at CEDA in terms of the likely subject matter. Ms Durbin may have the detail in front of her.

Ms Durbin : The minister hasn't given a definitive number in terms of the discussion papers. What he has signalled is that he is keen to take a very evidence based approach. As issues arise and stakeholders put positions to him, he's happy to engage with them and consider whether a discussion paper may be warranted. As Mr Hehir said, in one of the addresses the minister has given he has signalled some potential areas that he is interested in putting a discussion paper out on. He has recently, for example, signalled a paper on awards. He has not put a definitive number.

Senator WALSH: How many discussion papers are you currently working on? How many are in development?

Ms Durbin : To date there have been five discussion papers issued. Two of those have closed, so submissions have closed on those. I'm happy to take you through the details for those. Three remain open.

Senator WALSH: What is the anticipated time line for the release of the three that remain open, or they are already open?

Ms Durbin : Three are open. For those there is one on cooperative workplaces. Submissions for that are due on 26 March. There were two further discussion papers issued on 18 February. One is on strengthening civil compliance and enforcement and another one is on the review of the building code. Submissions on both of those close on 3 April.

Senator WALSH: So you're not currently working on any discussion papers that haven't been announced?

Ms Durbin : We're in ongoing policy development of areas that the minister has indicated he may be interested in, but those are the five that are currently released.

Senator O'NEILL: So there are more?

Ms Durbin : The minister has indicated that there will be future discussion papers.

Senator O'NEILL: How many more?

Ms Durbin : As I indicated, I can't put a definitive number on that.

Senator O'NEILL: How many are you working on? That's not too much of a difficult question to answer, surely?

Mr Hehir : It is in terms of whether they actually become finalised. As Ms Durbin said, we routinely provide advice to the Attorney. The fact that we're providing advice on a policy matter doesn't necessarily mean that that's going to be a discussion paper. He will look at a range of matters. Indeed, there might be further matters where he comes to us and says: 'I've been approached about this. I'm interested in having a discussion paper on that. Can you do some background work?' It is a little bit difficult. My recollection from the CEDA speech is that there are probably three more subject matters that he identified he was interested in.

Senator O'NEILL: Can you remind me what they were?

Mr Hehir : I'm looking for that particular detail. I don't have it in my notes.

Ms Durbin : From memory, the kinds of topics that the minister flagged were around enterprise bargaining, indicating a discussion paper was a potential possibility on enterprise bargaining. One was on issues around the small business dismissal code. He has previously thought about whether casual employment may be a topic for a discussion paper. As I indicated, he recently flagged the potential for one on awards.

Senator WALSH: Just to round out this part of the discussion: are you currently preparing discussion papers on those topics that you just mentioned: enterprise bargaining, small business, casuals and awards?

Mr Hehir : We're providing policy advice to the minister on those. Whether they turn out to be policy papers will be a matter for the minister.

Senator WALSH: Is the department preparing any legislation that won't be examined through the so-called Porter review? Are you preparing any legislation that is not part of the Porter review?

Mr Hehir : Yes, we are. There have been a number of reports that the government has considered and responded to. I think unpaid parental leave—the minister put out a press release on 5 February indicating his intention to legislate for that. That hasn't been done as part of the discussion paper process.

Senator WALSH: That's all?

Mr Hehir : I'd have to take that on notice, but that's one that jumps to mind.

Senator WALSH: We've heard before about this Boston Consulting Group report on enterprise bargaining. Has that now been handed to the department?

Mr Hehir : Yes.

Senator WALSH: Are we able to obtain a copy of that report?

Mr Hehir : That report is intended to be released. If the minister decides to release the discussion paper around enterprise bargaining, it is anticipated that that paper would form part of that discussion paper. It is intended for a public release. It is just the intention to be part of a discussion paper.

Senator WALSH: To clarify that: the intention is that the Boston Consulting Group report as a whole, in its entirety, will be an attachment to the discussion paper?

Mr Hehir : That's my understanding at this point in time, yes.

Senator WALSH: If it's the intent to publish it as part of the discussion paper, can we obtain a copy of it separately?

Mr Hehir : I think that's a matter for the minister, but I'm happy to raise that with him.

Senator WALSH: Okay.

Senator O'NEILL: Can I just go back and check one thing? Perhaps I wasn't listening quite carefully enough. With regard to the preparation of legislation for the Attorney-General, is the department preparing any legislation at all that won't be examined through the Attorney-General's public review process?

Mr Hehir : I did answer. I said the UPL legislation. The minister put out a press release on 5 February announcing his intention to legislate in response to the Senate report.

Senator O'NEILL: Are you working on any wage theft legislation?

Mr Hehir : That was subject to a discussion paper.

Senator O'NEILL: Does that mean you are or you are not?

Mr Hehir : Yes. Again, both the Prime Minister and the minister have been clear they intend to legislate in relation to criminalising significant, serious underpayments.

Senator O'NEILL: Okay, so you are working on legislation currently?

Mr Hehir : That's correct.

Senator O'NEILL: Thank you.

Senator WALSH: I wanted to clarify whether you are or are not working on an enterprise bargaining discussion paper, because your previous answer was that you provide policy advice from time to time that may or may not become a discussion paper, but you've also just let us know that the Boston Consulting Group report will be part of the enterprise bargaining discussion paper. I'd just like to clarify whether you're working on an enterprise bargaining discussion paper and when it will be released.

Mr Hehir : As I said, it's my understanding that it's the intention to release an enterprise bargaining discussion paper that's consistent with Ms Durbin's answer, where she said that the minister had identified in his CEDA speech that enterprise bargaining was one of the areas. Yes, as I said, we are providing policy advice in relation to the enterprise bargaining, and we anticipate that's likely to turn into a discussion paper.

CHAIR: Senator Walsh, just one more question, please, if that's okay.

Senator WALSH: Sure. So the minister hasn't given you a timeline to release a discussion paper on enterprise bargaining.

Mr Hehir : We've got a rough timetable of likely releases or potential releases for the policy matters that we're providing advice on. As I said, the minister hasn't made a formal decision to release them yet. So, yes, there's a rough timeline that we're working towards.

Senator O'NEILL: Mr Hehir, so far in our questioning we've had to use quite a bit of time to actually get you to tell us things that you clearly know. If there is an indicative timeline, then it would be helpful for us to do our job for the Australian people if you tell us what the indicative timeline is. We're going to new questions, but I'll come back with what the timeline is around this, and we'd like much more direct answers to our questions or it could be a very long day.

Mr Hehir : As I've said, whether the discussion papers will be released and the eventual timing for those discussion papers is a matter for the minister.

Senator ROBERTS: Thank you all for coming this morning. Chair, I'd just like to make a brief statement in response to some communication you received from the CFMMEU Mining and Energy Division from the Hunter Valley before asking my questions. On 24 October 2019, the general president of the CFMMEU Mining and Energy Division wrote to you to tell you how good they were, but for the record they forgot to tell you that they colluded to sign off on agreements that have caused so much harm to casual workers at Mount Arthur mine and up to 50 other sites in Australia, including a 40 per cent wage disadvantage.

The CFMMEU mining division in the Hunter Valley also acceded to Chandler Macleod in April of 2015 'to cease from any current and future actions and claims directed towards ventilating and agitating its view that employees currently engaged by Chandler Macleod companies as casuals to perform black coalmining production work may be entitled to leave and other entitlements'. The CFMMEU gave them a free pass. Shame on the CFMMEU division and also on Joel Fitzgibbon, the member for Hunter, because they have been diverting attention from the real issues hurting workers and preventing action—not only not doing anything about it but preventing action.

Mr Hehir, executives from your office met with Senator Marise Payne—and I thank you, Senator Payne, for your interest and your support—and myself on 26 November 2019, where we noted that the disadvantaged workers' claims were proven right by your office. We appreciate the fact that you went into that thoroughly to get that legal advice. Since then, what have you and your department done to right these wrongs and the wage theft that BHP, Chandler McLeod and labour hire companies have perpetrated?

Mr Hehir : I'm not sure whether my officers actually attended the meeting.

Senator Payne: It was the Attorney's office.

Mr Hehir : It was actually    ministerial staffers from the Minister for Industrial Relations' office who attended that. My understanding is that we've received some information from a number of people which were then passed on to the coal long service leave board. I understand they're appearing today. The advice we have from them is that they've been in contact with the relevant parties and they've sought their permission to undertake further investigation, including looking at whether there has been an underreporting of the hours from those firms. More detail might be available from the coal long service leave board a little bit later in the day.

Senator ROBERTS: We'll be pursuing that extra detail in that session. I understand that many of the issues we raised are state issues, but I just wondered whether or not anything could be accessed through the Attorney-General's Department to put pressure on the state to fulfil its responsibilities. Moving on—similar topic, but a broader scope—is the Attorney-General aware of the significant cost of remediating the errors of this entitlement offsetting 'mistake'? One company has stated that their liability for their reliance on similar errors in flawed enterprise agreements is around about $120 million.

Mr Hehir : I'm not aware of that claim. I might go back to your previous question, if that's alright. In terms of the allegations of fraud, it will be incumbent on the coal long service leave corporation to deal with such allegations in accordance with PGPA Act and the associated PGPA rules. Rule no. 10 deals with breaches of the fraud rule which may attract criminal, civil, administrative and disciplinary remedies. To the extent that any evidence of fraud is uncovered, the department will also take appropriate action in accordance with the fraud rule and the Commonwealth Fraud Control Policy, which includes reporting suspected fraud or misconduct for the governance office in the department and following the procedure of the fraud investigation in response.

In relation to statements about the difference in payments, it is the case that it's possible that two different agreements—or, indeed, an agreement and the award—will vary significantly from each other. The baseline is the award, which you can't go below, and then agreements can be negotiated above that. It is entirely possible that you will have a difference between an enterprise agreement for one firm and an enterprise agreement for another firm.

Senator ROBERTS: We have three goals for the mess that BHP has allowed to happen and in some ways has created: first is to make sure that all the workers involved receive their fair entitlements and compensation for the abuse and trauma that they have suffered, second is to stamp out this nonsense across the industry and third is to bring the perpetrators to justice. I can assure you that One Nation will not be letting go of this injustice that affects many everyday Australians until our three aims to support these disadvantaged workers are met. The integrity of the federal LNP government rests on whether it can sort out wage theft and the rip-offs of many hard-done-by workers that One Nation are standing beside and for. Do you understand our commitment and do you join us to protect workers?

Senator Payne: I think I and senior advisors to the Attorney-General and Minister for Industrial Relations have indicated that your concerns and those of your constituents—who are my constituents—that you've brought to the parliament are a matter of concern for us. We will continue to pursue these issues as we need to, and I'm sure you will bring them to our attention to do that. I am concerned about the matters which were raised by the individuals that I met. That is why I asked for the support of the Office of the Minister for Industrial Relations and Attorney-General to pursue those, and I'm happy to indicate I'll continue to work with you on that.

Senator ROBERTS: Thank you. Is there any way of lawfully bringing pressure to bear or drawing attention to the New South Wales state government to fulfil its responsibilities to protect these workers? Because we agreed that many of the issues are, in fact, state.

Senator Payne: They are state.

Senator ROBERTS: But you have connections with them?

Senator Payne: I will take that up with the Attorney and the Minister for Industrial Relations. I agree that many of the issues are state related, and I'll endeavour to see what we can both do in that regard.

Senator ROBERTS: This next question is somewhat open because I appreciate your concern and your interest that brought you into it. Everyday Australians, like Simon Turner, have been abused now for about five years and that's long enough. So when do you think they can expect to be compensated? It's a very broad question, because the animal is itself ill-defined.

Senator Payne: Indeed, and it crosses, as you have already noted, Senator, jurisdictional boundaries between the Commonwealth and the state, and multiple entities and pieces of legislation. I don't think I can put a time line on that, but would say that, in terms of supporting a constituent and ensuring that appropriate treatment is rendered to individuals that you have identified and any others who are may be in similar circumstances, that is obviously a very important thing to do and one which I have indicated I will continue to support.

Senator ROBERTS: Next question is: BHP seems to have been able to engineer lower than award rates—substantially lower than award rates—of pay for casual mineworkers in coal areas, including the Hunter Valley, by utilising sham casualisation through the use of contractors like Chandler Macleod. What has been done to prevent this two-tiered—that's BHP and Chandler Macleod group—wage theft that is deliberate, blatant and egregious and a work situation that is unlawful, immoral and unethical? What you have done to prevent this happening again—this two-tiered wage theft?

Mr Hehir : Without being explicitly across the different enterprise agreements between BHP and Chandler Macleod, as I said before, it is entirely possible for enterprise agreements across different firms to have different wage outcomes. There is no requirement that enterprise agreements be the same across industry. It's up to the individual firm and the bargaining representatives to actually determine what the enterprise agreement looks like and the value within it. As I said before, technically, it is possible that Chandler Macleod and BHP will have different payment arrangements or different payments.

In terms of the claim that they're below award, again, without having any detail, the broad principle is: if they are an employee, they are not able to be paid below the award. If they have been identified as contractors, again that would be, as I said in a previous answer, a matter for the courts to determine if that's the real arrangement. I'd also note that the Fair Work Ombudsman has been provided with an, I think, additional $10 million in the last budget to tackle sham contracting. Sham contracting is where someone is described deliberately as a contractor when, with full knowledge of the employer, they are actually employees. That is an offence under the Fair Work Act, and firms and individuals can be required to pay a penalty for that if that's proved.

Again, without having the detail of the matters in front of me, there are arrangements where individuals can contact the Fair Work Ombudsman if they believe that they're in a sham contracting arrangement. I would certainly encourage anybody who believes they're in a sham contracting arrangement to contact the Fair Work Ombudsman. If they are an employee, they should not be being paid below the award. Again, if they believe they are, I would encourage them to contact the Fair Work Ombudsman. That's the statutory authority that has the responsibility for enforcing the Fair Work Act in this regard. However, if they are actually on enterprise agreements, which differ, as long as those enterprise agreements have been signed off by the Fair Work Commission, then they are unlawful.

Senator ROBERTS: There is a substantial blight on our country's industrial relations scenario if this is not addressed. I thank Senator Payne for acknowledging that. This goes to the heart of integrity in our industrial relations situation, that a company like BHP can walk into the Hunter Valley and treat first-world country people, Australians, in a manner that a third-world country has been exploited. It's just abhorrent to see this continuing. We need to stamp out this abuse.

Moving on: the tier 1 construction companies have cosy deals with the construction unions to buy industrial harmony cheaply to them, but at the cost of 30 per cent higher construction costs for infrastructure like Cross River Rail in Brisbane. Yet the Victorian Labor government's Regional Rail Link project seems to be a solution for tier 2 companies to deliver these projects. Are you aware of the situation in Victoria with the Regional Rail Link?

Mr Hehir : I'm not across the detail of any of the enterprise agreements within the Regional Rail Link for the tier 2 firms there.

Senator ROBERTS: It's not just about enterprise agreements. It's about making sure that there is fair competition so that the tier 2s can get a hold and undo the stranglehold that tier 1s have had. That goes to the heart of some of the industrial relations problems. What are the ABCC and the government doing to address this rip-off of billions of taxpayer money?

Mr Hehir : In relation to Commonwealth-funded works, which is where the limit of our power rests, there is a requirement that building companies comply with the Building Code 2016, and for work prior to that, 2013. That code has quite specific arrangements or requirements in terms of what companies should do, both in terms of safety but also in terms of their agreements. I might pass to Ms Anderson, who can give you the detail of what the requirements are within the code. The code is intended to stop arrangements which limit the ability of the building company to manage their own business.

Ms Anderson : I might address the point that you raise around the contracts. The government at the moment has a discussion paper out on the Building Code. The discussion paper is specifically asking various questions of stakeholders, particularly around access to government work. We're specifically asking stakeholders whether we can do more through the Building Code to ensure that second tier companies, regional companies and small business contractors can access Commonwealth-funded work. We're certainly alive to the issue of ensuring that people, particularly small to medium operations, aren't being excluded from government work through the access to the Building Code.

Senator ROBERTS: You're aware then that it's a serious problem, because these foreign-owned tier 1 companies have got a stranglehold on major construction projects at the moment, both private as well as Commonwealth.

Ms Anderson : I don't know the exact break-up, but we would certainly like to ensure that tier 2 regional companies, small business companies, are getting access to government work. That's what we would like to look at through this discussion.

Senator ROBERTS: Some of these tier 2s are in the metropolitan area, the capital cities. Have the industrial relations laws, particularly in relation to enterprise agreements, enabled anticompetitive behaviours by either employer organisations or unions or both? If so, what is being done about it? We want fairness for all and protection for all workers.

Ms Anderson : That is a fairly broad question.

Senator ROBERTS: It is.

Mr Hehir : The Fair Work Act's intention is try to ensure that there's a safety net in place in terms of either the minimum wage or the award system. That covers in the order of 2.3 to 2.4 million working Australians in terms of ensuring there's a minimum payment required. We have institutions such as the Fair Work Ombudsman to enforce those laws. In addition to the award system and the minimum wage rate, the Fair Work Act is designed to encourage bargaining at a firm level. What we see there is quite good wage growth for workers through bargaining processes. So the act itself has enforcement mechanisms and sets the minimums that need to be there, or the framework within which minimums need to be determined, recognising that it's actually the Fair Work Commission that determines both the award, the actual conditions within the award through its hearing process, but also sets the minimum wage rate.

So the framework has an independent umpire to set the awards and minimum wage rate, and then it has an independent statutory body to enforce it to make sure that people are being paid appropriately in accordance with the industrial instrument that they work under. The framework is there, and the bargaining process is intended to make sure that parties bargain in good faith and fairly to achieve wage outcomes and productivity outcomes.

Ms Anderson : In relation to the competitive behaviour, the code also expressly requires that a code covered entity must comply with the Competition and Consumer Act as well.

Senator ROBERTS: That's where my last question is going to. Industrial relations laws are being used to lock out competition. I had talks with Mr Rod Sims back in 2017. What is the progress of the ACCC's examination of this issue? He was pretty keen to examine it and I think the predecessor to your department was pretty keen to examine that as well.

Mr Hehir : I'd need to take on notice any discussions we had with the ACCC. It might be better directing the question directly to ACCC. They're not one of our portfolio agencies.

Senator ROBERTS: I understand that.

Senator WALSH: I return to the Porter review. Minister, Mr Hehir said that the time line for the release of the discussion paper on enterprise bargaining was a matter for the minister. Can you advise us as to the time line for the release of that discussion paper?

Senator Payne: No. It is a matter for Minister Porter, and he will release that when he's ready to.

Senator WALSH: Can you advise us, Minister, what the time frame is for the Porter Review in general?

Senator Payne: There are a number of discussion papers, as you have initially discussed with officials here this morning, and we're all familiar with those. There are consultation periods that are underway for a number of them. They will be released when the government is ready to do so.

Senator WALSH: Minister, you referred to the consultation process. Can you advise us what that involves?

Senator Payne: I'll ask the officials to respond to that.

Ms Durbin : The principal approach we're taking for consultation is through the discussion paper process. Once they're closed, all the submissions, unless they have requested to remain confidential, are posted on our website. For the two discussion papers that have closed, around strengthening penalties for non-compliance and project life greenfield agreements, those submissions that we received were published on our website late last year, so there's much information out there around what stakeholders' views are and the evidence they have put forward.

Senator WALSH: Can I ask the Minister again what the process is for consultation? We're aware that there are discussion papers and submissions. What could you tell the public about what happens to their submissions once they have made them?

Senator Payne: As with the normal process of government, they would be considered based on their input. The government has come to this process with three criteria in relation to any potential reforms: that they should drive jobs and wages growth; boost productivity and strengthen the economy; and ensure the protection of workers' rights. In my view they would be very sound criteria to follow. Two of the first of the five discussion papers, including the first one that was released, were about strengthening employee protections and the enforcement and compliance framework. Obviously that is a clear priority, one would presume, of all senators. I'm not sure whether the Australian Labor Party chose to contribute to any of those discussion paper processes, including those, but we will manage the timing as government normally does and look forward to constructive engagement.

Senator WALSH: For those groups and individuals who took the time to make a submission, can you tell us whether there is any published process or documented process available to share with us about how you are intending to assess the submissions and conduct the review from here?

Senator Payne: I'm not quite sure what it is that you're seeking to determine. Discussion papers have been issued, quite focused discussion papers, as I said, measured against those three criteria referred to on a number of subjects. Submissions have been invited for those. Those submissions will be considered in the normal course of government business, as they would always be. As I understand it, for example, there were 50 submissions received on the first discussion paper: nine from trade unions, 15 from employer organisations, five from government agencies, 13 from external organisations including community legal centres and law firms, and eight from individuals. Most of those were published on the website. They will be considered in the normal course of events, as government would usually do, in the preparation of either legislation or response as governments wish.

Senator WALSH: Am I to understand from that that people make submissions and then the minister just makes a decision about it from there—there's no further consultation with groups that is going to occur?

Senator Payne: That is the consultation process.

Mr Hehir : I might add to that. There's an intergovernmental agreement in terms of industrial relations laws where we also consult with the states and territories and the Council on Industrial Legislation, the COIL process, where, as we develop legislation, we will consult specifically with states and territories and the Council on Industrial Legislation.

Senator WALSH: So the process for what is being described as the Porter review is that people make submissions and the minister makes a decision? Is that the process?

Senator Payne: As you would expect, the government considers the submissions, the minister provides advice to the government as to his views about how to proceed, and the decision-making process is managed in that way. I don't find it unusual. I'm not sure what point you're trying to make.

Senator SHELDON: Minister, I just want to be clear. I understand discussion papers; I understand that some of them are published; I understand that the minister makes a decision. But what I'm interested in is how many meetings or conversations the department or the minister has had with employers or employer lobby groups.

Mr Hehir : I'd need to take that on notice.

Senator SHELDON: Is it more than 20?

Mr Hehir : Again, I'd need to take on notice any meetings the minister's had. I'd need to take on notice whether we had specific meetings. I might just add that there is some variation—

Senator SHELDON: I'm sorry, but we're running out of time. You're saying you're taking it on notice in regard to minister's meetings. How many meetings has the department had?

Mr Hehir : Again, I'd need to take on notice whether we've had different meetings outside the COIL process in terms of employer organisations.

Senator O'NEILL: COIL means—

Senator Payne: The Council on Industrial Relations.

Senator SHELDON: I want to be clear again. I have only got a certain amount of time. Are you saying to me you don't know whether there were meetings outside the CIR process or you don't know how many meetings outside of the CIR process?

Mr Hehir : I'm not sure that the department has met with employer groups alone. I'm aware of a number of meetings where we have met with a number of bodies. But in answering the question, I need to give you some detail around the consultation process. So the discussion paper process broadly describes—

Senator SHELDON: I'm sorry, I'm aware of the discussion process; I'm just asking specifically about these meetings. You said that others have held meetings. What are the others that have held meetings?

Ms Durb i n : Just to reinforce what Mr Hehir is saying, I certainly personally can't recall meeting bilaterally with any separate employer or employee association but I'm happy to take that on notice to clarify. The framework that we normally operate in is the legislative base that Mr Hehir talked about. There's the national workplace relations consultative committee meeting, which has occurred.

Senator SHELDON: I'm aware of that. Thanks very much; that was clear. Can I just ask you another question? What consultants have you met with outside the CIR process?

Ms Durb i n : The only consultant that we have engaged is Boston Consulting Group through this process and so they're the only one that we have met with.

Senator SHELDON: How many employers or employee groups did they consult with?

Ms Durb i n : As part of their specific process, which was really quite a contained process, we had a process map that looked at the end-to-end processing requirements around single enterprise agreements. They met with 11 employers and two unions. They also met—

Senator SHELDON: And how many academics did they meet with?

Ms Durb i n : They didn't engage directly with any academics, primarily because this was a user-centred design process. It was designed really to look at the actual steps that employer and employee representatives go through when they're negotiating a single enterprise agreement, so it had a very discrete focus. The consultant also met with officials within the department. They met with representatives from the Fair Work Commission and also met with the Fair Work Ombudsman, again, to take that practical step-by-step process.

Mr Hehir : I want to clarify one of the answers. Not as part of the discussion paper process, but the department is consulting around labour hire registration. We're consulting with the states and territories and interested parties which include both employee representations as well as employer representations. But that's a consultation process.

Senator O'NEILL: Is that indicating an additional discussion paper that will rise around that issue or not? The problem, Mr Hehir, and the reason we're asking all these questions is because it is so profoundly unclear what this process is. There's no transparency around it and that is a problem for us.

Mr Hehir : The government had previously committed to introducing labour hire registration legislation. There are a number of states that already have labour hire registration. Clearly it's an essential process that we discuss with the states and territories what the potential form of a national labour hire registration scheme could look like and also, as part of that process, it's essential that we consult with both employer and employee reps. This was announced prior to the election that the government intended to legislate in this space.

Senator O'NEILL: So is there a discussion paper coming on labour hire?

Mr Hehir : At this point in time, I think the process that's being used is consultation with the states and territories and discussion with stakeholders. I'm not sure whether the minister would intend to release a separate discussion paper on this. There is already existing legislation in three states and—

Senator O'NEILL: I'm not asking for a summary of the state of the nation. We're all very concerned about labour hire practices. I'm asking about the processes of government, which are extremely opaque. There are five discussion papers live; you said there might be some more. Is labour hire one of the discussion papers that the department is working on?

Mr Hehir : As I said, the process for labour hire in terms of whether there will be a discussion paper or not hasn't been finalised. There has been consultation with states and territories—early stages; there has been consultation with some stakeholders—again, early stages. The minister may make a decision to do public consultations that may or may not take the form of a discussion paper. So at this point in time, there isn't a firm decision from the minister on whether there needs to be additional consultation over and above the engagement with the states and territories and the particular stakeholders. I might just pass to Mr Manning to see whether he's got further information on that. It wouldn't be beyond reason that the minister might want to undertake a further public consultation.

Senator FARUQI: How many workers are there in Australia with no paid sick leave?

Ms Durb i n : If I understand your question, we need to use Australian Bureau of Statistics information. Where an employee doesn't have an entitlement to paid leave then the Australian Bureau of Statistics would regard them as casual. That's how they define 'casual'.

Senator FARUQI: So how many are there?

Ms Durb i n : Around 25 per cent of employees are seen as casual and that's been very stable for the last two decades.

Senator FARUQI: Could you give me a number, if you have one?

Ms Durb i n : There are about 2.6 million casual employees. The current status is 24.3 per cent of employees in November 2019.

Senator FARUQI: Given that that is a huge number of people, have you had any discussions with the health department or any other department, in fact, of what those workers might do if they get sick or if they have to be isolated because of the coronavirus?

Mr Hehir : We've answered some questions from Senator Sheldon on that matter.

Senator FARUQI: So you've had discussions with the health department?

Mr Hehir : Across government, there are a number of agencies involved in the discussion. The Fair Work Ombudsman currently has information published on its website of what should be occurring in these things.

Senator FARUQI: Sorry, my question was: has your department had discussions with the health department?

Mr Hehir : I'd need to take that on notice. I'm aware that there are discussions occurring across government but I'd need to check with my officers to see whether they've had discussions.

Senator FARUQI: I apologise if this question has already been asked but I guess there is discussion also happening that, if people don't have sick leave, they might be likely to go to work in the scenario of coronavirus, because obviously they won't have an income. So are those sorts of issues being discussed?

Mr Hehir : The work health and safety obligations of both employees and employers have been discussed. At the moment, people are being requested to self-isolate. We're certainly conscious that there is a number of drivers of people's behaviour, notwithstanding that there is an obligation on both employers and employees not to put other people's health and safety at risk by their actions.

Senator FARUQI: Are there discussions on providing those employees without sick leave assistance so that it's easier for them to address the health issue as well as have income?

Mr Hehir : Minister Payne has taken that question on notice.

Senator FARUQI: So have there been discussions or not? You have taken that question on notice?

Senator Payne: Yes.

Senator FARUQI: That's it from me.

Senator WALSH: Now that the Boston Consulting Group report has been provided to the department, can you tell us what the total cost of that consultancy was?

Ms Durb i n : Yes. The total cost was $137,500.

Senator WALSH: I now go to how the discussion papers are actually put together and prepared. In relation to the Building Code discussion paper, did you consult the ABCC about the preparation of that discussion paper?

Ms Anderson : Obviously the department developed the discussion paper on behalf of the Attorney-General. It's the government's discussion paper. We do consult with the ABCC, with other stakeholders from time to time, to get a general sense of what issues are facing the industry, so we obviously take all those sort of consultations into account when we develop the discussion paper.

Senator WALSH: So did you consult with them specifically in relation to the discussion paper?

Ms Anderson : Yes, we have had discussions with the ABCC about the discussion paper.

Senator WALSH: Have you consulted with the construction union, the CFMMEU, in relation to the discussion paper?

Ms Anderson : Not in terms of developing the discussion paper, but we've certainly notified the CFMMEU that the discussion paper is available and that we are seeking submissions.

Senator WALSH: Did you consult with any employer groups in relation to drafting the Building Code discussion paper?

Ms Anderson : No.

Senator O'NEILL: did you consult with anyone else?

Senator WALSH: Who else did you consult with in relation to that paper?

Ms Anderson : No, we haven't, apart from the ABCC.

Senator O'NEILL: That's the only agency you consulted with?

Ms Anderson : In developing that discussion paper, yes, I think so.

Senator O'NEILL: It seems like a pretty narrow degree of consultation. This is what concerns me about the use of language that we're seeing right now across every department. When an ordinary Australian, who expects to hear the truth, hears the word 'consultation', they actually think they're going to get a group of people, a brains trust, in a room, who are going to talk about the issues in some detail in some transparent way. What we have just found out from you—on a Building Code that affects every Australian who is ever going to move in or out of a building—is that you've gone to one agency, the ABCC; that's it for your consultation. How can that provide any confidence to the Australian people about this very opaque process?

Mr Hehir : I'm not quite sure of your characterisation of the process but let me try and be clear.

Senator O'NEILL: I thought I was pretty clear, frankly.

Mr Hehir : The development of a discussion paper is frequently undertaken within the responsible department. The purpose of the discussion paper is to engage more broadly with the community, including, in this case, the unions representing employees within the industry and also employers within this industry, and potentially with their peaks as well. It's published to engage, to make it available to as many people as want to engage with that paper as possible, and it's left out there for a significant amount of time to encourage people to participate in providing commentary. I think that's a very transparent process. It's completely common for discussion papers to be developed within the department and the responsible agency. The fact that it is out there, that it is being discussed in public and not behind closed doors is a very good outcome, from our perspective, and it is a very open and transparent process.

Senator O'NEILL: You've already told us that you've called for submissions but, once they arrive, we have no concept, no clarity, around what is happening to them. There were 50 submissions declared by Senator Payne with regards to one of the closed discussion paper sequences. How many of those were confidential, by the way?

Ms Durb i n : For that particular consultation, there were six that were confidential and not published.

Senator O'NEILL: And for the other one that's closed?

Ms Durb i n : That was on the project life of greenfields. For that one, there were 18 submissions. Of those, nine were from employer organisations, five were from trade unions, one each from a direct employer and a law firm, and two from individuals. They were all published on 16 December.

Senator O'NEILL: No confidential ones for that one?

Ms Durbin : No.

CHAIR: Did the Labor Party make any submissions?

Ms Durbin : Not that I'm aware of.

Senator O'NEILL: The next phase, though, is where it becomes extremely opaque.

Senator Payne: There is nothing unusual about this—nothing. There is a process of issuing discussion papers on a range of subjects, to which submissions are invited. I haven't done the mental arithmetic required to—what have we got: 68 across the first two. The others are, as I understand it, still open. Those submissions are invited to be considered by government. That is the process. There is nothing unusual about that—nothing.

Senator SHELDON: Minister, the discussion papers make a frame; you'd agree with that. They frame and determine the answers. If you set the frame, this is the frame, and that determines the answers that people are delivering to the discussion papers.

Senator Payne: If the answer, Senator Sheldon—

Senator SHELDON: I raise this question directly: why did the minister allow only a discussion to take place with the ABCC? Half of its responsibility also—which it's failing in—is to go after rorting employers in the construction industry who are unfairly competing with decent companies and carrying out major wage theft in that industry, and they never discussed it with the Fair Work Ombudsman.

Senator Payne: The Fair Work Ombudsman—

Senator SHELDON: So why didn't they have a discussion with the Fair Work Ombudsman—

CHAIR: This is not a time for speeches. Order!

Senator Payne: As I'm advised, the Fair Work Ombudsman was most certainly consulted in the development of the civil enforcement and compliance framework. The discussions are held with appropriate agencies, but the consultation process is the process of making submissions and of feeding that material into government for the purpose of informing government's decision-making process. This is not unusual.

Senator SHELDON: I want to ask the department: did I hear correctly that, in relation to a discussion paper that was raised by Senator O'Neill, a discussion only took place with the ABCC?

Ms Anderson : The ABCC is the regulator of the Building Code—

Senator SHELDON: Was there a discussion that took place with the Fair Work Ombudsman?

Ms Anderson : In terms of the Building Code discussion paper?

Senator SHELDON: That's right.

Ms Anderson : No, not specifically.

Senator SHELDON: Even though the Fair Work Ombudsman—the ABCC has failed to turn around and carry out prosecutions, which it is required to, against employers for wage theft. So you're determining a decision about discussion papers based on the ABCC, who has fundamentally failed to carry out one of its responsibilities. So why wouldn't you talk to the Fair Work Ombudsman as well about their view about how it could be improved?

Senator O'NEILL: Or Safe Work—same question.

Senator SHELDON: Safe Work is a very good question—another highly dangerous industry.

Senator Payne: Senator Sheldon, this process—

Senator SHELDON: This is a building code without the Fair Work Ombudsman, without Safe Work Australia but only the ABCC—

CHAIR: Order!

Senator Payne: Senator Sheldon, as I understand it, this process is still on foot. The consultation period for that particular discussion paper does not close for another month. I am sure that there is ample opportunity for appropriate submissions to be made from the sorts of parties that you've referred to.

CHAIR: I've just got a quick question: what questions were asked in the discussion paper on the Building Code review?

Mr Hehir : I might start by noting that the ABCC is responsible for those aspects of the Fair Work Act that relate to underpayment et cetera within the building industry. So it has that enforcement obligation there and it's the appropriate agency to be consulted, not the Fair Work Ombudsman. In terms of the claims by Senator Sheldon that they're not performing their duty, I think you can put that to them. Certainly from our perspective, they are seeking to go after underpayment. They've managed to recover over a million dollars in underpayments, mainly through proactive audits. They'll probably have the detail of that.

Senator SHELDON: Out of the proven $20 million that have been underpaid in this industry in one year?

CHAIR: Senator Sheldon, can we just let Mr Hehir answer the question, please?

Mr Hehir : They will also be able to advise you of their success rate in recovering underpayment. They are quite proactive. They get the majority of the recovery of underpayments through their own search, rather than what's been advised to them by employees. They're quite proactive in doing that. And they certainly seek to ensure that—

Senator SHELDON: Are there any phoenixing companies that they've prosecuted or passed on to appropriate bodies?

Mr Hehir : I think the broader issue of phoenixing—

Senator SHELDON: No issue of breaches?

Senator Payne: Perhaps the official could actually answer your question, Senator Sheldon.

Senator SHELDON: Well, he was characterising—

CHAIR: Senator Sheldon, you are badgering the witness. We're not in the Senate now; we're here to listen to the witnesses.

Senator SHELDON: Well, if the witness characterises my questions then I'll characterise his answers.

CHAIR: He wasn't characterising your question, Senator Sheldon. Please, everybody; it's not even morning tea and we're getting cranky.

Mr Hehir : The point I was making was that the Fair Work Ombudsman doesn't actually have responsibility within this area; the ABCC does. Therefore they are the appropriate agency to discuss the discussion paper. I also wanted to go to the question around the framing of the discussion paper.

Senator SHELDON: Sorry, would that include Safe Work Australia?

Senator O'NEILL: It would, yes.

Mr Hehir : Safe Work Australia—

Senator SHELDON: The Building Code without Safe Work Australia?

Mr Hehir : Sorry, it's the Building Code in relation to the Federal Safety Commissioner, which actually sits within our department. So it's not Safe Work Australia; it's actually the Federal Safety Commissioner.

Senator SHELDON: So you're saying these matters don't affect safety in the building—

CHAIR: Senator Sheldon, can we please let Mr Hehir answer the question without the constant barrage of questions.

Mr Hehir : For the aspect that's actually relevant from the Building Code 2016—as in our document, as opposed to the broader building code, which is about how you actually construct a building—the responsible entity is the Federal Safety Commissioner. The Federal Safety Commissioner sits within our department.

Senator SHELDON: Deaths and injuries of workers—that's what we're talking about.

CHAIR: Senator Sheldon, please could you let the witness answer the question without badgering.

Mr Hehir : The relevant reference within the Building Code actually relates to the Federal Safety Commissioner. We have quite specific requirements around the safety standards that a firm must meet. There is discussion in the discussion paper around those safety standards and the requirements for meeting them. That is administered by the Federal Safety Commissioner, so that's within our department. Safe Work Australia, as you know, is a broader body that doesn't actually do regulation itself. State and territory bodies regulate work health and safety. So the reference within the paper is to the Federal Safety Commissioner. That's within the department, and they were certainly involved in the process.

Senator O'NEILL: Do you intend to speak to any of the families who are still grieving the loss of workers on job sites?

CHAIR: Senator O'Neill, that's—

Senator O'NEILL: Are you going to consult with them? I reckon they've got a few things to say, and the government continues to ignore the report—

CHAIR: Senator O'Neill, please. I'm going to go—

Senator O'NEILL: to shamefully ignore that report.

CHAIR: Senator O'Neill, I'm going to go to Senator O'Sullivan.

Senator O'SULLIVAN: To go back to that: is there a specific question on the Building Code and the wage underpayments? If there is, what is that question?

Ms Anderson : Yes, there is a specific question going to underpayments; it's question 21. It says:

Could the Building Code 2016 be used as an additional tool to deter underpayments in the building and construction industry? If so, how?

Senator DAVEY: My understanding is that there is specific mention in the discussion paper about the safety aspects, including the improvements in safety records in the sector since the ABCC was re-established, but it also asks specific questions. Could you cover off what those questions are. I think it's important that we understand these discussion papers and what people can submit.

Ms Anderson : Yes, that's correct; there is a section that deals specifically with safety and asks a couple of questions around safety, including:

13. Could the Building Code 2016 better support improved safety outcomes in the building and construction industry? If so, how?

14. Could the Building Code 2016 better support the way businesses and their workers approach safety issues at building and construction workplaces? If so, how?

Senator DAVEY: So there's plenty of opportunity. Anyone who wants to make a submission can answer those questions, put forward ideas—it will all be thrown in?

Ms Anderson : That's right, and we certainly encourage a broad range of submissions, including from state regulators.

CHAIR: Okay. I'll go back to Labor.

Senator WALSH: I'll just wrap up some of these questions about the discussion papers. I want to clarify that your evidence is that, in the preparation of the discussion papers, as far as I've been able to ascertain, you do not have and have not had any meetings with employers, employer groups or unions in relation to the preparation of any of the discussion papers.

Ms Anderson : In terms of the preparation of the discussion papers, it's quite unusual to have those sort of discussions at that stage. What we have done is ensured that relevant stakeholders are aware of the discussion paper. So we have sent an email out to a number of stakeholders, including employer associations and employee representatives, to encourage them to make submissions to the discussion paper.

Senator WALSH: In relation to the discussion paper that's just been announced in relation to scrutiny of complex awards, can you step us through the process of putting that discussion paper together? Who are you intending to contact? Have you already contacted various groups to make them aware or encourage them to make a submission?

Mr Hehir : For clarity, my understanding is that the minister has indicated the possibility of the discussion paper. So the process that we—

Senator Payne: Is that for the government?

Mr Hehir : No, this is for the award complexity. The process that we would do is brief the minister on our view around the award system—the operation of the Fair Work Act, recognising that we've moved from thousands of awards down to 121 awards—and provide him some advice on our view on complexity. As part of the development of the paper, we're likely to engage with the appropriate agency. In this case we'd seek input from the Fair Work Commission, being the relevant agency. From there we'd put some advice to the minister of what the form of a possible discussion paper could look like.

Senator WALSH: I'm aware that, in October, the minister made a statement supporting greenfield lifetime projects. He made a statement that he supported changing legislation to allow for greenfield-agreements to apply to the lifetime of a project. I'm also aware that submissions to that particular discussion closed in November. So it appears that the minister announced a policy while he was still consulting on it through that process. Minister, can you clarify whether, in fact, the minister did announce a policy while still consulting on it in this process and let us know what that tells us about this process?

Senator Payne: I don't have that information with me, but I understand there was a response made in question time. We'll check that record and come back to you.

Senator WALSH: I'm of the understanding that it was published in the Financial Review.

Senator Payne: That's my answer. I will check the record and come back to you.

Senator WALSH: Your answer is that you're not sure whether he made this statement in October?

Senator Payne: I said I will check the record and come back to you.

Senator O'NEILL: So that's a question on notice?

Senator WALSH: Can I just clarify what it is—

Senator Payne: There's nothing to clarify.

CHAIR: I think that what the minister is saying is pretty clear.

Senator WALSH: I just wanted to clarify what it is that you're going to come back to us about. So you'll come back to us about whether he did make this statement in October and whether the review on the topic closed in November?

Senator Payne: I will consider what you've asked, and I will get some information and come back to you.

Senator O'NEILL: Senator Payne, if that characterisation which is now a matter of public record in the Fin Review is correct, and you do confirm it, the question that then follows goes to exactly what we've been saying about this process being opaque. It was consultation for the sake of consultation, by name. But, in practice, the minister was getting a few key advisers from particular areas of interest to them, like the ABCC, to make policy that was already predetermined. People around Australia are already concerned about engaging in writing grant applications for sports rorts; they were not able to see them transparently managed. This is the same process about critical legislation in the industrial relations—

Senator Payne: I absolutely reject that, Senator. I absolutely reject that characterisation.

Senator O'NEILL: We just can't trust this government, and that's a perfect example of it.

CHAIR: Senator O'Neill, it's not the time for speeches.

Senator Payne: I absolutely reject that characterisation. We are making an effort. The Attorney and Minister for Industrial Relations is very focused on three criteria—which, it seems to me incomprehensible that the Australian Labor Party would not be interested in: driving jobs and wages growth, boosting productivity and strengthening the economy and ensuring the protection of employee rights.

Senator O'NEILL: It's not the areas we're not interested in. Making an effort doesn't cut it.

CHAIR: Senator O'Neill!

Senator Payne: It's a complete mystery to me why the Australian Labor Party is not interested in that. There are multiple submissions, as I indicated earlier—68 on the first two, which have been closed, from interested organisations, entities, individuals, businesses and so on. That is part of the consultation process, and that is what this government is undertaking.

Senator O'NEILL: Making an effort isn't good enough. This needs to be a transparent process, and it is not.

Senator Payne: Well, if we're going to talk about making an effort: I don't think the Australian Labor Party has made a contribution to any of the inquiries which are under way.

Senator O'SULLIVAN: Have Labor senators actually read this?

Senator O'NEILL: Can I just go to another line of questioning? I refer to the Attorney-General's failure to appoint members to the Fair Work Commission Expert Panel. I do have a copy of the Attorney-General's letter to the President of the Senate. Are you familiar with that, or do you need me to table it? It's been five months since we last sat at estimates, and there are still six vacancies on the Fair Work Commission Expert Panel. Three of those are to deliberate on the annual wage review. My question is: why is the government not doing its day job and fulfilling its responsibilities? Why are these vacancies still unfilled?

Ms Kuzma : There's a current process underway in relation to those vacancies.

Senator O'NEILL: Okay, another process. Is this one any clearer than the last one?

Mr Hehir : There is a requirement for these appointments to be done formally and through the cabinet processes. I think it's unfair to characterise—

Senator O'NEILL: Can you table the document for me, Mr Hehir, that shows what the process is?

Mr Hehir : I think it's unfair to characterise the answer that there's a process underway as a minimalist approach. There's an essential process that must be complied with that is underway.

Senator O'NEILL: Is there a document that you can table that outlines that process for me, Mr Hehir?

Ms Kuzma : The Cabinet Handbook may be of interest to you or the Executive Council Handbook.

Senator O'NEILL: What is the process that the minister is currently undertaking to fill the current vacancies of the Fair Work Commission Expert Panel?

Ms Kuzma : This is a cabinet process and the appointments are made by the Governor-General. So when I am explaining that a process is underway it's those processes. I can refer you to the Cabinet Handbook that steps that through and also the materials for the Executive Council.

Senator O'NEILL: Given the significant concerns about this particular panel, will the minister give an undertaking that he'll maintain balance on the panel and not appoint more individuals from employer or industry groups with an ideological opposition to unions and working people?

Senator Payne: The appointments will be considered in due course by government.

Senator O'NEILL: Can you give me that assurance? There's a track record here, Senator Payne.

Senator Payne: The appointments will be considered through the process that Ms Kuzma has outlined in due course by government.

Senator O'NEILL: So there is no transparent process for anybody to see and the minister is just going to make this decision arbitrarily? Is that correct?

Senator Payne: Senator, you know very well how appointments in these matters are made, and they will be made according to that system.

Senator O'NEILL: Can you give an assurance to me, on behalf of the Australian people, who seek balance in these commissions, that there will not be a continuing practice, which the government have already demonstrated, of the government putting in their mates with ideological commitments and in big business, over unions and ordinary working people?

Senator Payne: The minister will consider the appointments in the normal course of the appointment-making process of government.

Senator O'NEILL: Well, that's very concerning—because, if that's the case, it won't look good. Is there any ongoing consultation that you're aware of with regard to the minister's appointments, or have recommendations already been advanced?

Ms Kuzma : In relation to these—

Senator O'NEILL: The six places that are still not filled.

Ms Kuzma : The department is not involved in consultations in relation to those appointments.

Senator O'NEILL: Minister, can you add anything? Are consultations continuing, or is the matter advanced?

Senator Payne: Senator, I've responded to you. If you want further information and you seek to ask a specific question, I'm happy to take that on notice.

Senator O'NEILL: Who will the minister consult regarding these appointments?

Senator Payne: I'll take that on notice.

Senator O'NEILL: When will the minister be announcing these appointments?

Senator Payne: I've already indicated that the announcements will be made once the normal course of appointment processes are undertaken.

Senator O'NEILL: Will it be another six months before we hear anything about this?

Senator Payne: I have responded to your question.

Senator O'NEILL: 'Three of these positions are required in order to deliberate on the annual wage review.' I'm sure it's of interest to Australians that the job gets done properly by somebody who is in the job—to do the deliberating?

Senator Payne: Yes.

Senator O'NEILL: When will that happen?

Senator Payne: I have indicated the appointments will be made in the normal course of events as part of the normal appointment process.

Senator O'NEILL: So the cover-up continues. There is no transparency.

CHAIR: This is not the time for political statements. I think we might go to my colleague Senator O'Sullivan.

Senator O'SULLIVAN: Thank you. I want to go back to the ministerial interventions on court cases. Is that the time for the officials to come back to the table? I just want to ask about the Rosatto case. Can you provide an update on the Rosatto matter?

Ms Kuzma : Yes. This is a case in the Federal Court. The matter was heard by a full court on 7 and 8 May 2019, and the full court has reserved its decision in that matter. So we are awaiting a decision.

Senator O'SULLIVAN: That was expedited. Is that right?

Ms Kuzma : Yes. The hearing was expedited.

Senator O'SULLIVAN: What's the primary objective of the government's intervention in that matter?

Ms Kuzma : The government is principally focused on clarifying the law about offsetting, to make it clearer what those parameters are.

Senator O'SULLIVAN: To clarify that, right?

Ms Kuzma : That's correct. Yes. There's some uncertainty about that.

Senator O'SULLIVAN: Why is that clarification important?

Ms Kuzma : It's certainty of people's rights and entitlements—in terms of potential double-dipping concerns in the community—when someone might be paid twice for something, where the parameters of that are.

Senator O'SULLIVAN: Has this been a concern raised by small-business bodies?

Ms Kuzma : Yes, I understand so.

Senator O'SULLIVAN: Is it correct that this issue was not addressed in the original Skene decision?

Ms Kuzma : That's correct. Yes.

Senator O'SULLIVAN: Can I take you to the Mondelez case.

Ms Kuzma : Yes.

Senator O'SULLIVAN: Can you provide an update on that?

Ms Kuzma : Yes. This is a High Court appeal. The Commonwealth was granted special leave to appeal the decision in that matter, and Mondelez has also been granted special leave to appeal. The court has not set a date for the hearing of that matter, but the parties have been directed to file materials through to April 2020.

Senator O'SULLIVAN: It raises concerns of accrual of personal sick leave under the National Employment Standards. What's the basis for the minister being granted special leave in that appeal?

Ms Kuzma : Special leave is granted when a matter has a public interest significance. The minister intervened in this matter because it was considered to have very significant public interest considerations in relation to sick leave entitlements.

Senator O'SULLIVAN: Is the minister's position in that case consistent with the then Labor government's explanatory memorandum to the Fair Work Act?

Ms Kuzma : Yes.

Senator O'SULLIVAN: What was the potential cost to the economy in both Mondelez and Rosatto?

Ms Kuzma : I'll just see if I have that information.

Senator O'SULLIVAN: Thank you.

Mr Hehir : For the Mondelez case, the potential cost to the economy that the department was able to identify was only a partial cost. We relied on ABS data. I think it was in the order of just over a billion dollars, but I need to get the officials to check that. But that's my recollection of it. There were higher estimates from industry groups. The range is between $969 million and $1,050,000,000.

Senator O'SULLIVAN: That's extraordinary.

Mr Hehir : That's partial because we were only able to measure partial cost. In terms of the ABS data, we weren't able to estimate for a range of types of employees. My understanding is that industry estimates the figure substantially higher than that. But our figure was a partial figure.

Senator O'SULLIVAN: It's extraordinary, given the pressures that our economy has at the moment from the bushfires and the coronavirus, to have other impacts such as this. Minister, would you care to comment on that at all?

Senator Payne: I think Mr Hehir set it out well.

Senator O'Neill interjecting

CHAIR: Senator O'Neill.

Senator O'SULLIVAN: What impact do you think that would have on the economy?

Mr Hehir : It is difficult to determine the actual impact that would have. It would depend on the individual business, but I think employers and businesses more broadly would be very worried about suddenly accruing an extra billion dollars in liabilities. It's—

Senator O'SULLIVAN: It's not an immaterial sum, is it?

Mr Hehir : No.

Senator Sheldon interjecting

CHAIR: Senator Sheldon, just let the witness answer.

Mr Hehir : Certainly, it would be of concern to businesses. How it plays out would depend on just how much of that was actually claimed. Having that potential liability would be a significant concern.

CHAIR: I'll now go to Labor.

Senator SHELDON: On the Mondelez case, it's interesting how you have had a different look at things. There's a lawful case to receive more payments, and the government steps in to not only fight those workers' extra payments for sick leave, which they have legitimately achieved through their union, but also to cost those workers more uncertainty at more cost to their organisation. We have seen a whole series of cases of wage theft. When unions have to spend more money on court cases, that means less money can be spent on dealing with the epidemic of wage theft in this economy.

In the Mondelez case, I note that Minister Porter, when supporting the company's view in the Federal Court, the company said that it creates inequality between employees in the same workplace who complete the same work. Mr Porter went on to say, in support of Mondelez—Cadbury chocolates—that otherwise one group of employees will end up with quite different entitlements to leave than other employees even though they worked the same number of hours in a set period. His answer to that is not to lift people up, but to actually take leave off people. So I ask this question: what involvement has the government had in the case to date?

Ms Kuzma : We're involved in the High Court litigation on the matter. I'll just make the point that the minister's points are not in support of one particular party. They're about the framework of the act and about equitable access to paid personal carer's leave. So the Federal Court's decision is inconsistent with the original policy intent of the provisions as evidenced in the explanatory memorandum. That's the Commonwealth's position on the correct interpretation.

Senator SHELDON: There's not an interest in the case, even though the Attorney-General made it clear about his view that employees—not talking about the law, you're saying that employees in one group should not get more sick leave than another group, so his answer was to take sick leave off people as a result of this decision.

Mr Hehir : I think the statement that there should be consistency and equality in terms of rights is the actual proposition that's contained within the act. The intent is to actually ensure that the original intent of the legislation is met. In this case, that would mean that the Federal Court's decision would be overturned, if the government is successful in arguing its case before the High Court. There is no intent to take rights off people. The intent is about having the correct application of the law.

Senator SHELDON: The consequence of the intervention by the government is that, if the Attorney-General was to succeed, workers would miss out on sick leave. That is the consequence, isn't it?

Mr Hehir : The consequence would be that the—

Senator SHELDON: It's a simple yes or no.

Mr Hehir : If the government is successful in arguing its case before the High Court, then the consequence would be that the Federal Court's decision would be overturned and that the workers would receive the rights that they're entitled to.

Senator SHELDON: Is that a yes or a no—that they would receive less money than the original court case gave them, in the case of sick leave?

Mr Hehir : In this case they would have a lower entitlement to sick leave for that—

Senator SHELDON: Thank you. My next question is: has the A-G—

CHAIR: Senator Sheldon, the witness is trying to—

Senator SHELDON: He's answered it.

CHAIR: He's answering the question.

Senator SHELDON: He answered that there will be a lower payment.

CHAIR: He didn't even get to the first comma in his answer!

Senator O'SULLIVAN: Cutting off the department in its answer is not giving it a fair opportunity to answer the question.

Senator SHELDON: Has the A-G or the department met with, spoken to or written to Mondelez?

Ms Kuzma : I haven't personally.

Mr Hehir : I'm not aware of anybody within the department having written to Mondelez, but I can take that on notice.

Senator SHELDON: Are you aware of whether the minister has spoken to Mondelez?

Mr Hehir : I'd have to take that on notice.

Senator SHELDON: Minister, are you aware?

Senator Payne: No, but I'll take it on notice if you wish.

Senator SHELDON: Thank you. I'd also like to know, if that's occurred, how many times and when it's occurred. Can you take that on notice as well?

Senator Payne: If it has occurred.

Senator SHELDON: How much money has been spent on external legal engagement in this case?

Ms Kuzma : The minister was represented by Tom Howe QC and Irene Sekler of AGS as counsel. The total cost of the minister's intervention in this matter is approximately $168,565.

Senator SHELDON: Is there an estimated legal cost as well?

Ms Kuzma : I have the costing incurred but in terms of the estimates I'd have to take it on notice.

Senator O'NEILL: So far, we know that $167,000 got spent by the Attorney-General to make sure that workers get less sick pay.

Senator SHELDON: That's right.

Mr Hehir : The characterisation of that—

Senator O'NEILL: That's where we are. That's your government working for you.

CHAIR: Order, please!

Mr Hehir : As I answered before, the intent of the government's involvement in this case is to ensure the correct application of the law and, as we believe is outlined clearly within the explanatory memorandum of the act, that the will of the parliament is undertaken properly.

Senator SHELDON: Mr Hehir, with due respect, we have been talking about the consequences of the government spending $167,000 of taxpayers' money to take sick leave off them. What internal resources have been devoted to it?

Ms Kuzma : Sorry, I need to correct my previous answer. I have updated information in terms of the cost; my apologies.

Senator SHELDON: Thank you.

Ms Kuzma : The total spent to date is $255,550.

Senator O'NEILL: That's even better—$250,000 to take away sick leave!

Senator SHELDON: Geez, the ABCC only got a million dollars in underpayments in an industry that has over $320 million worth of—

CHAIR: The press gallery is that way if you want to go and give a speech. We are here to ask questions.

Ms Kuzma : I can also clarify that the outcome of this is that employees working the same number of ordinary hours per week will receive the same leave entitlements in hourly terms, including pro-rata entitlements for part-time employees.

Senator O'SULLIVAN: Did you say the same?

Ms Kuzma : Yes, the same. It's about people working the same hours getting the same leave entitlements.

Senator SHELDON: No, it's about people getting paid more money who will get paid less; that's what the consequence of it is.

Senator O'NEILL: Mr Porter admitted it.

Senator SHELDON: Mr Porter said that very clearly when he embarked on supporting Mondelez in the appeal.

CHAIR: Is there a question?

Senator SHELDON: What internal resources have been devoted to the case so far?

Ms Kuzma : In the legal team, we have lawyers—

Senator SHELDON: And then more broadly.

Ms Kuzma : Yes. So more broadly—

Senator SHELDON: The legal team first.

Ms Kuzma : Yes. The matter is outsourced, for want of a better word, to AGS; we have explained those costs there. In the department, while I don't have people specifically working solely on this matter we do a lot of different things in the legal team. One of those things is reviewing submissions and giving advice. I would not be able to quantify in terms of one person's job or a cost of this and that, because our lawyers do a lot of different matters.

Senator SHELDON: Would you be able to estimate—I was at a hearing for another department, and they gave us the estimates of internal resources that were allocated to the work.

Mr Hehir : We'd have to take that on notice. I would note that the industrial relations legal team don't keep time sheets. They're not in the same system as AGS; they don't have the six-minute increment of charging rates that many law firms use. It'll be difficult to get an estimate but we can certainly take that on notice.

Senator SHELDON: I would draw your attention to hearings last night, where another department had the same situation. Obviously they don't take six-minute blocks but they do keep a record of internal costs and allocations of resources to projects, particularly ones they see as being important.

Mr Hehir : We'll take it on notice.

Senator O'NEILL: Can I ask some questions around what appears to be a vastly different model of operating between the ABCC, the ROC and the Fair Work Ombudsman. They all come under the view of the Attorney-General, but the decisions that they make about whether to litigate or not litigate appear to be starkly different. Why is there so much inconsistency between the litigation action of the ABCC, the ROC and the Fair Work Ombudsman?

Mr Hehir : Unless you've got a specific example, I'm not able to provide a comment.

Senator O'NEILL: There's a manner of pursuing matters demonstrated by the ABCC and the ROC that's vastly different to that of the Fair Work Ombudsman. Do you have a policy around litigation and the determination of when to litigate or not litigate?

Mr Hehir : The individual statutory authorities have generally had those policies in place. That's a matter for them. They are independent statutory authorities who have the responsibility to determine how they're going to pursue that. I'm sure they'll be happy to answer questions when they appear before you.

Senator O'NEILL: To be clear, there is no-one else to blame other than the entities themselves for the decisions that they make about who they choose to litigate against and who they choose to let off; is that correct?

Mr Hehir : The individual entities develop their own policies in terms of how they're going to pursue enforcing the act.

Senator O'NEILL: Do they have those policies recorded, Mr Hehir?

Mr Hehir : I'm aware that at least two of them do, but my understanding is—

Senator O'NEILL: Which two have policies around this?

Mr Hehir : If I could finish: my officers have just advised that all three agencies have their policies. Those policies are developed in light of the model litigant guidelines, which are a whole-of-government standard. I'm sure that all of those agencies will be happy to answer questions around their guidelines.

Senator O'NEILL: Do they provide you with their policies of how they interpret model litigant processes and their actual choices about what they do and don't do? Do they report to you?

Mr Hehir : No, it's not appropriate that they report to us. They're independent statutory authorities.

Senator O'NEILL: Let me choose my words more carefully: do they provide you with a copy of the policy frame and the outline of their decision-making so that you have some oversight and understanding of what they do?

Ms Kuzma : One example is the Fair Work Ombudsman's litigation policies on its website. It's a public document on its website.

Senator O'NEILL: And you're aware of that?

Ms Kuzma : Yes.

Senator O'NEILL: Let's go to the scale of the difference in approaches from these three agencies which are related to the work that you do in Attorney-General's. In the case of the CEPU, despite self-disclosing historic paperwork offences for which they showed great contrition and subsequently employing a governance and compliance officer, which is a highly appropriate response, to ensure they were in compliance going forward, they were taken to court in addition to those structural changes being bedded and fined nearly half a million dollars. That's the action. Yet George Calombaris, in the case of $7.8 million of wage theft, was only subject to a paltry $200,000 contrition payment. How do you account for these different approaches, because the outcomes for ordinary working people are tipped the wrong way?

Mr Hehir : I think the best approach is to ask the individual agencies why they undertook those approaches in those individual cases. I'm only privy to the public information around those cases. I don't have any of the particular detail that the agencies themselves have that they take into account when forming their view. Both those agencies, I'm sure, will be able to explain to you the process that they use in determining their approach in those matters.

Senator O'NEILL: Mr Hehir, given what's on the public record in the matters that I've just given you a perfect example of, is that of concern to you in your role?

CHAIR: You're asking for his opinion.

Senator O'NEILL: What do you do when matters of such inequalities in treatment come to your attention? Do you feel you have a responsibility?

CHAIR: I think that question out is out of order, Senator O'Neill. I think that's going beyond what estimates is for. You're asking for the deputy secretary's personal opinion there. I think you might want to rephrase the question.

Senator O'NEILL: Does the department keep track of media declarations on the inequitable outcomes that seem to be distributed by the varying responses to litigation that we've seen between the ABCC, the ROC and the Fair Work Ombudsman?

Mr Hehir : The department does keep track of the media around these matters. As I was saying—

Senator O'NEILL: Right, so I'm assuming you're aware—

CHAIR: Senator O'Neill, can you please let the deputy secretary get to the first comma in his answer.

Senator O'NEILL: He's finished. There was a full stop there. I heard it.

Mr Hehir : I haven't finished.

CHAIR: The witness hadn't finished.

Mr Hehir : As I said before, it isn't possible for me to know whether these approaches are inequitable. I don't have the individual facts of those matters. It is up to the individual agencies to consider all the facts of the matters in front of them and then to use their policies to determine their actions. Yes, we keep across it and, yes, we observe what's happening, but as we aren't privy to all the detail of those cases I cannot describe them as inequitable.

Senator O'NEILL: And you have no concerns at this stage, Mr Hehir, about the situation of differential treatment that I've just asked you about, with the CEPU being fined half a million dollars for paperwork infractions versus a $200,000 fine for an individual who took $7.8 million in wages from Australian working people?

Mr Hehir : My recollection is that those wages were fully repaid, as well as the contrition payment. But I'd also note that the government has not only committed to dealing with criminalising underpayments; it's also released a discussion paper on whether the penalties in these circumstances and the enforcement actions allowed are sufficient. In terms of our policy development, we are currently in a discussion process with the broader community around whether those matters are actually sufficient in terms of the operation of the Fair Work Act. So do we keep an eye on that in a policy sense? Yes, of course we do. But I'm not going to comment on the individual cases.

CHAIR: Just before you jump in there, Senator O'Neill, we are going to finish on time, at 11.00, so we have seven minutes left. I'll let Labor do that. Are we all okay with the tabling of this document?

Senator O'NEILL: Yes, please.

CHAIR: We accept it as tabled. Thank you very much. Done.

Mr Hehir : Thanks very much. I just want to ask a question before I hand over—

Senator Payne: What did you table, Senator?

CHAIR: It was the letter from Christian Porter to Scott Ryan in relation to the—

Senator O'NEILL: The failure to replace the six for the fair work.

Senator SHELDON: I just want to ask a quick question. The Rossato case regarding the situation with WorkPac and the class action over casual underpayments—what's the department's role in that, and what costs have been incurred in considering that case?

Mr Hehir : I think we've answered what our role is in that. Senator O'Sullivan asked that question previously. But we can certainly provide the—

Senator SHELDON: You can go to costs; it's fine. You have; thank you, Deputy Secretary. You can go to just costs.

Ms Kuzma : I just want to ensure that I have the latest information. The minister or the department are not involved in the class actions that you referred to. The total cost of the minister's intervention in this matter is approximately $282,514. It's in the Federal Court, that matter.

Senator SHELDON: And internal costs?

Ms Kuzma : Again, in our legal practice we don't bill in six-minute units. We do a lot of different legal matters.

Senator SHELDON: Could I make a similar request to what I made before regarding the internal costs. Other departments have been able to give that information before. Just to the question of the inclusion of the right to superannuation—and this is to the department—do you consider that superannuation theft is a significant issue?

Mr Hehir : That's not an area within our policy responsibilities. That's the responsibility of the ATO and so it could probably be asked in the Treasury estimates.

Senator SHELDON: I might ask you the question this way then. There are billions of dollars which are outstanding across the life of superannuation. There were amendments put forward by Labor to have the National Employment Standards include superannuation. That was also discussed through the course of the Senate debate on the superannuation amnesty bill, which you do have responsibility for. While giving an undertaking to not support Labor amendments, Centre Alliance was able to obtain an undertaking from the government to review the proposal over the next six months. I'm trying to work out how that review is progressing. What resources have been allocated to it?

Mr Hehir : Sorry, we don't have policy responsibility for that act. As I said before, my understanding is that's a matter for Treasury.

Senator O'NEILL: Have you been asked to do any of the work at all?

Ms Durbin : We've certainly had discussions with Treasury about that commitment, and we will work progressively with them.

Senator O'NEILL: Have you done any work to date?

Ms Durbin : Beyond initial discussions, not in detail yet.

Senator SHELDON: You do have responsibility for the National Employment Standards?

Mr Hehir : Yes.

Senator SHELDON: If superannuation is included in the National Employment Standards, they will consult with you?

Ms Durbin : The key responsibility, in terms of the commitment to do the review, will sit with Treasury. But we will work closely with them, because, as you said, there would be implications for the Fair Work Act and the broader positioning.

Senator SHELDON: My question goes to the fact that the government gave an undertaking to Centre Alliance that they would consider the NES having an amendment to have superannuation in it, and you're telling me there's been no discussion with the department—there's only been potential discussion, which you're unaware of, with the ATO?

Ms Durbin : No, I didn't say that. I attended a briefing with senior executives in Treasury last Monday, from memory. So there's been a formal meeting specifically to start canvassing how we will advise government.

Mr Hehir : Ms Durbin described it as initial discussions, recognising that there's not enough detail.

Senator SHELDON: Thank you for clarifying that; I appreciate it. Did those discussions include amendments to the National Employment Standards?

Ms Durbin : We'll provide advice to government in terms of the scope of the review, and that's a matter for government.

Senator O'NEILL: Have you given any consideration to the fact that wage and superannuation theft are very connected? Given the current arrangement that deals with superannuation underpayments is basically connected with the Taxation Office, does the Fair Work Ombudsman have a role to play in this? Have you given that any consideration?

Mr Hehir : The Fair Work Ombudsman engages with the ATO. They don't have the power to collect information around underpaid superannuation. But where they believe it might be, particularly if they're investigating a case of underpayment, they provide advice to the ATO. That is my understanding. But, again, the Fair Work Ombudsman will be able to give you an update on what those arrangements look like.

Senator WALSH: Have you seen any reduction in claims under the Fair Entitlements Guarantee since the Corporations Amendment (Strengthening Protections for Employee Entitlements) Bill 2018 was passed last April?

Mr Manning : There are two parts to that question. With the way the FEG works, there will necessarily be a lag between actions occurring and companies becoming insolvent and FEG claims being made. We do have a slight downward trend in the amount of FEG claims paid over the financial year. Would you like me to run you through those in comparison to last financial year?

CHAIR: Perhaps you could take it on notice.

Mr Manning : I am happy to take it on notice and provide a comparison of claims, month by month, between this financial year and last financial year.

Senator WALSH: It would be great if you gave us that data on notice. Chair, with respect, the witness didn't answer the question in relation to any trends that can be reported to us since the amendment last April that I referenced. Are you able to answer that?

Mr Hehir : Really we've got an issue of causality. We've got a downturn, but it's very difficult for us to relate that downturn to any particular matter, including the passing of any legislation. As Mr Manning referred to in his answer, there's a lag between the passing of legislation and any matters that we're likely to take to court—because the companies actually have to become insolvent, they have to have undertaken the activity that is being addressed with the amendments to the Corporations Act. Even if we had taken action, it would be very hard for us to identify any causality. We have seen a downwards trend, but we're not claiming it has anything to do with the act. It's too early for us to see any of that. In this case, there are so many other factors that impact on the amount of FEG claims that it's hard to establish causality.

Senator O'NEILL: I am sure you are aware that the FEG scheme has been extended to migrant workers. Has any part of the recommendation of the Fels review been implemented?

Mr Manning : The proposal to extend it to migrant workers is still under consideration. We've undertaken consultation in relation to that issue—the discussion paper across government in October last year.

Senator O'NEILL: Another discussion paper!

Mr Manning : A consultation paper, a discussion paper—call it what you will. We issued a paper in October last year to the agencies that would be affected. Going back a step: the commitment reflected the recommendations of the Migrant Workers Taskforce, which was—

Senator O'NEILL: That the government extend access to the Fair Entitlements Guarantee program.

Mr Manning : After consultation on any difficulties that could arise and the practicalities of it. We've done that consultation, and the matter is with government for—

Senator O'NEILL: There are no payments to migrant workers under the FEG scheme despite the commitments given in March last year. It's a disgrace!

CHAIR: Thank you, Senator O'Neill. While there are many other questions for the department, they can be taken on notice. I thank the Industrial Relations Group from the Attorney-General's Department.

Proceedings suspended from 11:04 to 11:19