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Education and Employment Legislation Committee
Fair Work Commission

Fair Work Commission


CHAIR: I welcome Ms Bernadette O'Neill. Ms O'Neill, do you wish to make an opening statement?

Ms O'Neill : No, thank you, Chair.

CHAIR: I will hand over to Senator Sheldon to take us forth.

Senator SHELDON: Welcome, Ms O'Neill. I just want to set a little bit of the direction for the questions I want to ask about. The number of the Fair Work Commission members with an employer background currently outnumber those with a union background. There are 28 members with an employer background on the Fair Work Commission; 12 with a union background; and six from government. Of course, this imbalance was the creation of the Abbott-Turnbull-Morrison government. I want to explore what procedures occur with regard to the Fair Work Commission—and I'm mindful that at the last estimates meeting concern was raised about Commissioner Gerard Boyce, who I note was the former New South Wales manager of the Australian Mines and Metals Association, AMMA, which somewhat outrageously recently complained that there was a union-orientated bias in the appointments to the Fair Work Commission. Of course, the figures say something different. Can you tell the committee what the Fair Work Commission mechanism is for dealing with internal staff complaints against senior appointees to the commission?

Ms O'Neill : Staff complaints in relation to—

Senator SHELDON: Internal staff complaints against senior appointees to the commission—commissioners, for example. If there were a complaint regarding the commissioner, what would be the internal procedures that would apply?

Ms O'Neill : It would depend on the nature of the complaint. It might be that the concern is raised directly with the member. Our employees have the same rights as any other APS employee. So it doesn't really change based on who any concerns might be expressed against. They might raise it with their manager. They might raise any concerns with the person concerned. They might make a formal complaint. They may take any number of actions. There's not a formal policy, if that was the nature of your question, in those circumstances.

Senator SHELDON: So, in essence, they'd have the same rights as other employees in the Public Service regarding complaints against a senior commissioner?

Ms O'Neill : Yes.

Senator SHELDON: I'm just not clear on that answer you gave. Are there any guidelines that are set out for the staff and appointees to the commission about personal or other items that may display in their offices or in relation to office decorations? Do you have a guide on what's appropriate material and what's inappropriate material?

Ms O'Neill : Nothing of that level of granularity. What's in place is the code of conduct, which applies to members of the commission. It is a high-level document. It's available on the website. It goes to the importance of maintaining the impartiality, standing and reputation of the commission. It is really up to each individual member to ensure that they follow the code.

Senator SHELDON: So—if I understood your first answer—those individual members would be expected to stay within both some lawful standards but also the standards that would apply to a normal workplace?

Ms O'Neill : Indeed.

Senator SHELDON: Without describing them—but I think you get the gist of what I'm saying—there was a time when there were certainly inappropriate calendars, for example, in workplaces that have rightly been taken out of workplaces.

Ms O'Neill : I'm old enough to remember those.

Senator Payne: Most workplaces.

Senator SHELDON: Too many workplaces, absolutely.

Senator Payne: I said 'most'—taken out of 'most' workplaces.

Senator SHELDON: And inappropriate workplaces and too many—I agree with you, Minister. Have any staff complaints been levelled against the president or the deputy president of the commission?

Ms O'Neill : The member that you've just been referring to?

Senator SHELDON: Yes.

Ms O'Neill : I will have to take that on notice.

Senator O'NEILL: If something of that scale had happened, I expect that you would be aware of it?

Ms O'Neill : I am aware of it, but I'm not immediately able to recall how it came to my attention and, although it came to my attention, whether that was through or in fact unrelated to any concerns that have been expressed by staff. Staff might have expressed concerns to someone else, for example, which was unrelated as to how I personally became aware of—

Senator O'NEILL: So are you aware then, not how did you become aware, of complaints levelled against the president or the deputy president of the commission?

Ms O'Neill : I'm aware that there were tweets—actually, let me just check. They weren't tweets; they were LinkedIn comments—and we talked about this at the last estimates hearing; that's what we discussed on the last occasion.

Senator O'NEILL: And were they of any concern to you when you became aware of them, Ms O'Neill?

Ms O'Neill : I'm not sure that we're talking about the same thing and that's kind of partly why I'm hesitating.

Senator SHELDON: I may be of some assistance. Have any of the complaints involved harassment or have any of those complaints involved items displayed in offices?

Ms O'Neill : I am aware that there have been items placed in part of the premises and that queries and concerns have been expressed in relation to those some time ago. Whether they constitute complaints and were from a member of staff is the question that I've taken on notice. My understanding is the issue was dealt with and those items were removed.

Senator SHELDON: Have there been any complaints of this nature that we just referred to that have been levelled against Deputy President Gerard Boyce?

Ms O'Neill : Again, with the qualification that I'm not confident that formal complaints were made by a member of staff, the question about—I'll take the question on notice, Senator.

Senator SHELDON: With due respect, you just mentioned there has been inappropriate material that's been in an office. It is, I'm sure, in the nature of that and even as the minister quite rightly pointed out—and I agree with her—the nature of materials was inappropriate, old, old school, that were in offices. It would be quite extraordinary if that matter would need to be taken on notice. I just go back to the same question: these are serious matters, and was the nature of the complaint that I referred to before levelled against Deputy President Gerard Boyce?

Ms O'Neill : I need to draw together—in the past inappropriate calendars and other material displayed in workplaces.

Senator SHELDON: I'm not referring to inappropriate calendars and Gerard Boyce.

Ms O'Neill : Yes, that's absolutely the case. There were some personal items that the deputy president had in chambers that a number of people expressed some concern about and considered inappropriate.

Senator SHELDON: Was it involving figurines?

Ms O'Neill : Yes.

Senator O'NEILL: Could I ask a few details about that now, Ms O'Neill? How would you describe the statues, figurines, or artworks—whatever way you want to characterise them—that were in Mr Boyce's office?

Ms O'Neill : I've not personally seen them; they are in Sydney, and I'm in Melbourne.

Senator O'NEILL: You are aware of them though?

Ms O'Neill : I'm aware of a couple of them. My understanding is that it's a hobby of the individual concerned and he made them himself.

Senator O'NEILL: Let's go back to the ones that you're aware of. Are they like comic book characters or anime?

Ms O'Neill : That's not an inaccurate description.

Senator O'NEILL: What do they depict?

Ms O'Neill : To be frank, it's been some time. This issue arose some time ago now, so my recollection may not be entirely accurate.

Senator O'NEILL: Just do the best you can with what you can recall. Based on what I've heard about it, I'm sure I'd remember. What exactly do they depict?

CHAIR: You can take it on notice.

Senator O'NEILL: You don't need to coach the witness. She's seeing if she can tell me.

CHAIR: I'm not coaching the witness. If the witness is unaware—

Senator O'NEILL: She did not say that, Chair.

CHAIR: I think that the witness can take questions on notice.

Senator O'NEILL: What do these figurines depict, Ms O'Neill?

Ms O'Neill : What I recall is that the way you describe them, as a cartoon caricature type figurine, is not inaccurate. My recollection is that one was a female figure. The other I'm not sure was even human. I was going to make a silly comment, and I won't. I honestly can't recall the second one, and I'll take that on notice.

Senator O'NEILL: Perhaps you've given me your answer to the next question: are all the figurines women to the best of your knowledge?

Ms O'Neill : As I said, I can't recall that and I'll take that on notice.

Senator O'NEILL: Would you describe the figurines as erotic?

Ms O'Neill : That wasn't—

Senator O'NEILL: Would you want them in your workplace, Ms O'Neill?

Ms O'Neill : No.

Senator O'NEILL: You wouldn't want them there because they convey an image of women's bodies that is not appropriate to have on display in a workplace in 2019-20?

Ms O'Neill : My view was that they were inappropriate.

Senator O'NEILL: Were they clothed or nude?

Ms O'Neill : They were not nude—well, the one that I can recall was not nude.

Senator O'NEILL: Was she partially clothed?

Ms O'Neill : Yes.

Senator O'NEILL: In an erotic way?

Ms O'Neill : 'Scantily clad' is probably the way that I think of it.

Senator O'NEILL: Suggestive poses?

Ms O'Neill : I'm trying to be helpful. I'm trying to recall to the best of my knowledge. At the same time, these, to my understanding, were amateur figurines without a lot of detail. As I said, I've not personally seen them.

Senator O'NEILL: Were the figurine's breasts exposed?

Ms O'Neill : I don't know that. I'll take that on notice.

Senator O'NEILL: But they were scantily clad?

Ms O'Neill : Yes, at least one of them was.

Senator O'NEILL: How many figurines were there in Mr Boyce's office?

Ms O'Neill : I'll take that on notice. There were, to my recollection, a large number, and some were removed, and the remainder were subsequently removed. So the number shifted.

Senator O'NEILL: So there were a large number in the first instance. What was the large number? Two hundred?

Ms O'Neill : I don't know. In my head it was more than 10.

Senator O'NEILL: Okay. And some were removed? There was a sort of gradual process of removal?

Ms O'Neill : That's my recollection, yes.

Senator O'NEILL: Over what period of time, and why? Was it a response to complaints?

Ms O'Neill : Certainly comments and feedback. That is my understanding.

Senator O'NEILL: So some of them were so unpleasant that there was a partial removal of some of them, initially?

Ms O'Neill : By the member concerned.

Senator O'NEILL: Who is Mr Boyce, the deputy president—is that correct?

Ms O'Neill : That's right.

Senator O'NEILL: So, to be clear, approximately 20, to the best of your knowledge, of a series of scantily clad figurines were on display in Mr Deputy President Gerard Boyce's office, and they were of sufficient concern to people that Mr Boyce, despite his clear passion for this sort of thing, removed some?

Ms O'Neill : That's my recollection, yes.

Senator O'NEILL: What did it take to get him to remove all of these inappropriate figurines for a modern workplace?

Ms O'Neill : I'll have to take that on notice.

Senator O'NEILL: Was there a formal intervention?

Ms O'Neill : I do not recall a formal complaint in that sense, but I understand there were conversations, and concerns were expressed with the member directly.

Senator O'NEILL: By whom?

Ms O'Neill : By a number of people.

Senator O'NEILL: So people in his workplace—people senior to him or people he was overseeing?

Ms O'Neill : I'll take that on notice. My recollection is that it was both colleagues—perhaps senior colleagues and colleagues at level—and also—

Senator O'NEILL: But also junior staff—or less senior?

Ms O'Neill : Not junior in the sense that they report to him.

Senator O'NEILL: So senior and less senior people around the Deputy President, Gerard Boyce, raised concerns on a number of occasions and he finally acceded and removed the figurines?

Ms O'Neill : That's my understanding.

Senator O'NEILL: And there is no doubt that Mr Boyce owns them, that they are his?

Ms O'Neill : I believe so.

Senator O'NEILL: Are they produced by Mr Boyce himself?

Ms O'Neill : That's my understanding.

Senator O'NEILL: So he gets these figurines, these anime book character comic figures, which have been described as erotic by others—you describe them as scantily clad—and he paints them himself?

Ms O'Neill : I really don't know that.

Senator O'NEILL: You said it was a hobby.

Ms O'Neill : That's my understanding, yes. He makes them—that probably extends to painting them—as a hobby.

CHAIR: It's like artwork. I don't know where Labor is coming from.

Senator O'NEILL: For a deputy president of the Fair Work Commission to have this sort of material in his office really makes you wonder about the quality of appointment. This is a reality. This is actually happening.

CHAIR: I don't think we can draw any conclusions about the professionalism of someone's work from their preference for different types of artwork.

Senator O'NEILL: There is considerable debate about what artwork looks like, and I know how women's bodies have been appropriated for centuries. I caution you to be very, very careful about—

CHAIR: If you want to have a press conference outside and give a speech, do that.

Senator O'NEILL: No. I'm here to stand up for women in the workplace. They should not be exposed to this kind of gross intimidation.

CHAIR: Senator O'Neill, just because you can speak over me doesn't mean that you are correct. I put a question to the witness because I'm genuinely interested. I don't know where you are going with this. I don't really understand these objects that we are talking about here.

Senator O'NEILL: This is a symbol of the modern workplace.

CHAIR: That's why I'm asking this question of the witness: is it like artwork?

Senator O'NEILL: Clearly to Mr Boyce it is.

CHAIR: Senator O'Neill, in terms of the little soapbox that you are on at the moment and your little rant—if you want to go and have a rant, there is a box outside parliament—

Senator O'NEILL: Men have been silencing women long enough. It is time for you to hear the voice of women saying this is not good enough for our workplaces.

CHAIR: Senator O'Neill, can we have a private meeting? If you are accusing me of silencing you—

Senator O'NEILL: He listened to his own staff and removed the items.

CHAIR: Senator O'Neill, we're going to have a private meeting. Are you serious?

Senator O'NEILL: Yes, I am.

Proceedings suspended from 15:58 to 16:00

Senator O'NEILL: Ms O'Neill, you indicated Mr Boyce, the deputy president, owns these figurines himself. Is anyone else on the staff at the Fair Work Commission involved in producing or displaying these figurines?

Ms O'Neil l : I don't believe so. Can I clarify one thing—I just want to be absolutely clear—from my evidence earlier. I said I haven't seen the figurines, which I haven't; they were in Sydney and I'm in Melbourne. I have seen a photo of, I think, one or two of them. I want to be very clear about that.

Senator O'NEILL: The images we've been discussing are the ones that were the figurines; you've just seen photographs of them rather than seeing them in full glare?

Ms O'Neil l : Yes.

Senator SHELDON: What was Mr Boyce's response to this complaint about the—as I understand, a number of them were life-sized—figurines in his office?

Ms O'Neil l : My understanding is that the figurines were certainly not anything like life-sized.

Senator SHELDON: What was Mr Boyce's response to this complaint?

Ms O'Nei l l : I wasn't personally party to a conversation with him about them, but the upshot is that he removed all of them. I can take on notice your question otherwise.

Senator SHELDON: You mentioned that there are photos. Are you able to provide copies of those photos?

Ms O'Neil l : Certainly the one that I have.

Senator SHELDON: How did Mr Boyce react to those matters?

Ms O'Nei l l : As I said, the upshot is that he removed them from his chambers. His reaction at the time I can't tell you; I wasn't party to any such conversation.

Senator SHELDON: Just to clarify, is it the case that Mr Boyce had installed, or arranged to have installed, surveillance cameras in his office?

Ms O'Neil l : A question such as that was raised with me several weeks ago. That was the allegation that was put. There was a conversation with the deputy president about the inappropriateness of that as well, and the member concerned advised that it was either fake or certainly not working and would remove it.

Senator SHELDON: When did this installation happen?

Ms O'Nei l l : I will take it on notice, but it was in the order of a couple of months ago.

Senator SHELDON: This may help on broad time lines: was the installation after the complaint was made?

Ms O'Nei l l : After the figurines issue?

Senator SHELDON: After the figurine complaint was made.

Ms O'Nei l l : Yes, it was subsequent to that.

Senator SHELDON: Were Fair Work Commission officials given notice prior to installation of the figurines?

Ms O'Neil l : No.

Senator SHELDON: Were they given prior notice of the installation of the surveillance equipment?

Ms O'Neil l : No.

Senator SHELDON: Were staff at the commission informed that they may be under surveillance when they were inside Mr Boyce's office?

Ms O'Nei l l : No.

Senator SHELDON: Is it appropriate for private surveillance cameras to be installed in a workplace?

Ms O'Nei l l : My view is, certainly in respect of the commission premises, no. As I've indicated, the member concerned advised that they were either fake or not working.

Senator SHELDON: We have a situation where a commissioner has surveilled their own staff on the basis, I can assume, of capturing somebody for making complaints. This is a horrendous breach of workplace standards in any workplace. As we rightly discussed before and as you fairly put before, the commissioners are responsible and are liable for providing an appropriate safe workplace. A commissioner at Fair Work putting his own staff under surveillance is an appalling abuse of their responsibilities and a fundamental breach of their responsibilities on issues that they should be enforcing protections for workers across Australia. I don't suggest Miss Payne, Minister Payne, was describing this particular circumstance, but I think I will say this part of it—that is, I agree with Miss Payne that inappropriate artefacts, inappropriate materials in workplaces, are something of a bygone era, and this commissioner should be appropriately dealt with.

Senator Payne: It's a long time since I've been called 'Miss'.

Senator SHELDON: Ms? Thanks, Minister. At previous Senate estimates in October last year you confirmed Mr Boyce had been counselled over partisan political media posts. Has he been counselled over this episode?

Ms O'Neil l : I will have to take that on notice. I don't know the answer to that. Just to be clear, the evidence in relation to the LinkedIn comments was in relation to the code of conduct and whether the president had raised it with the member concerned. That's the nature of your question in relation to these last two incidents, is that right?

Senator SHELDON: He had been counselled on one occasion about partisan political media posts. Has he also been counselled about the episode that we've been discussing today?

Ms O'Nei l l : I'll take that on notice.

Senator O'NEILL: Do you really not know? You've seen the photos. You've seen the evidence. You must surely be as outraged as every woman who's become aware of this instance? You'd hope he would be counselled.

Ms O'Nei l l : My view is certainly that the figurines were inappropriate. I have a responsibility to provide a safe workplace free from harassment for all of our staff and for everyone in the premises. That is my view. That's a different question to what you have asked.

Senator O'NEILL: Surely you should make it your business to know.

Ms O'Nei l l : Well, I'm not privy to every conversation that the president or other senior members—

Senator O'NEILL: But you would check with him to say: 'Did you tell Deputy Commissioner Boyce that this is just not on, he has to get rid of that stuff from his office, he should never have brought it in, this is completely inappropriate?' That'd be the kind of conversation I'd expect you to have if you're standing up for your workforce?

Ms O'Neil l : The president is aware of at least the figurines issue and the resolution of that. I can't recall whether he has formally or informally raised the matter with the member directly.

Senator O'NEILL: You're telling me you haven't checked with him? You don't know if it's been raised?

Ms O'Neil l : By the president in relation to the code of conduct, which was the question I've taken on notice.

Senator O'NEILL: Is there anybody else whose job it is to do that, other than the president?

Ms O'Nei l l : As I've indicated last time and earlier today, the code of conduct is a matter for each member to ensure that they abide by. Where matters come to the attention of the president that there may be some issues relating to compliance with the code then generally the president will raise that with the member concerned.

Senator SHELDON: You say the president has spoken to Mr Boyce, am I correct?

Ms O'Nei l l : That's what I've taken on notice.

Senator SHELDON: What was the resulting interaction? You've taken us through a series of steps. Inappropriate figurines were in the workplace. As a result of complaints made, objections to them, there was secret surveillance of staff placed by the commissioner within his office. Then, through all those processes there were a number of people involved, and you have mentioned the president's name, as part of the normal process of counselling. You must be aware. Mr Boyce didn't just take away these figurines off his own bat.

Ms O'Neill : No, but what I indicated in response to the questions earlier, about what his reactions to the concerns were, I took that on notice because I wasn't party to any of those conversations myself. I know the outcome was that the figurines and the fake or otherwise cameras were removed, as I've indicated.

Senator SHELDON: Didn't Mr Boyce also previously work for AMMA?

Ms O'Neill : I think that, in response to a question last time or the time before, the backgrounds of members were provided, which was simply through the press release issued by the minister at the relevant time. I'm not sure that I've got that.

Ms Carruthers : In the last set of questions on notice, we did provide answers about the background of the recent appointees. It is in EEC-SPE19-36. It said Mr Gerard Boyce:

… is a barrister with more than 20 years' experience in employment law and workplace relations. Before being admitted to the Bar in 2006, he held various senior workplace relations roles in the mining, building, electrical and aged care industries. His experience includes roles as New South Wales State Manager of the Australian Mines and Metals Association …

Senator SHELDON: Along with these matters, there was also, I understand, a life-size cardboard cut-out of the Republican President, Donald Trump, displayed in his office. Would that violate rules and guidelines in relation to party political displays? I'm directing this to any one of you.

Ms O'Neill : Would it contravene the code of conduct? I would need to consider that. It certainly would be unhelpful, at the very least, and may, for at least some viewers, be considered partisan or political in some way. The general tenor of the code of conduct is that members should avoid any real or apparent political activity or views, so it would be, at the very least, unwise.

Senator SHELDON: Thank you for your understanding. President Trump has displayed open hostility towards trade unions and their members, including ending the rule that extended overtime pay to millions of workers and relaxing rules regarding child labour, mine working safety and exposure to toxic chemicals. He has tweeted attacks on union leaders and blamed them for the closure of factories that they fought hard to keep open for their members. Just last week he granted the Secretary of Defense the power to abolish the right of Department of Defense civilian workers to unionise. This raises serious questions not just about taste but about the sort of political partisanship that's been displayed on a previous occasion that Mr Boyce was also counselled on. In light of President Trump's well-known hostility to labour unions, is it appropriate for Mr Boyce to continue to display a life-sized figure of President Trump in his office?

Senator Payne: I'm not sure that you can necessarily ask Ms O'Neill to express a view in relation to those political matters. I think Ms O'Neill has responded in terms of the code of conduct and what would and would not be within the code of conduct in response to your previous question. You've made your position very clear. I understand that, but I'm not sure that you can ask Ms O'Neill that question. But, of course, I'm to be guided by the chair.

Senator SHELDON: I'd be happy to withdraw that from Ms O'Neill and direct it to the minister.

Senator Payne: As I have said in relation to similar questions, I believe that workplaces and participants in workplaces, whether they are presiding officers or part of the staff, should abide by the guidelines that are set down—in this case, a code of conduct. If the code of conduct makes that behaviour inappropriate then that should cease.

Senator O'NEILL: Is it inappropriate in your view, Minister?

Senator Payne: It is a code of conduct with which I am not familiar. To be clear, I am not familiar with the commission's code of conduct. But if the code of conduct makes it inappropriate then it should cease.

Senator O'SULLIVAN: Last year the government secured the passage of legislation through both houses of parliament to provide the Fair Work Commission the discretion to waive noncompliance with minor technical requirements of the Fair Work Act. Can you please advise the committee on the improvements in enterprise agreement approval times that this legislation has enabled?

Ms O'Neill : Certainly. There are a couple of things, and Mr Furlong may well want to add to this response. In relation to the specific impact of the amending act, what that has allowed is less to do with speeding up the processing of applications. But it has been very helpful, because before the amending act, essentially, if there were technical problems with the application—if there was a very minor defect—then the act didn't permit the application to be approved. So the application would have to be withdrawn or formally dismissed, and the parties would have to go back to the starting blocks, if you like. Now that the amending act confers a discretion and enables certain minor defects to be overlooked following the exercise of discretion it means that all of those parties who would previously have had to withdraw or have their application dismissed can now have their application approved.

There was an update on agreement timeliness, performance and measures more generally that was published on 24 February. That goes specifically to the impact of the amending act. The point it makes in there, including a chart, is that the proportion of applications that were withdrawn has fallen from about 20 per cent—from the second half, before the amending act—to around six per cent. So that's something like 800 agreements that can now be approved, and the parties don't have to be sent back to the bargaining table. The impact is more on the parties' convenience, efficiency and so forth.

The timeliness story is another good story. It is absolutely the case that the issues that we were dealing with that we've discussed at the previous estimates have been able to be resolved. The timeliness performance, currently, is very positive. We had a backlog of more than 2,000 agreements in the system this time 12 months ago, and we've now got fewer than 330, and it's something like 15 or 16 that were lodged more than 16 weeks ago. So there has been an enormous turnaround. Compliant applications, if they're lodged today, are likely to be approved within two weeks. The median of all agreements approved, whether they are complex, contested or straightforward—

Senator O'SULLIVAN: Has it helped, particularly with those complex and contested cases?

Ms O'Neill : I'm not quite sure there's a clear link with the amending act.

Senator O'SULLIVAN: But, overall, it's been—

Ms O'Neill : It certainly hasn't harmed it. Overall, our timeliness there is currently at 37 days, which is a vast improvement over where we were at—76 days—a couple of years ago. There have been a number of things that we've done to improve performance, and there's still more to be done, but timeliness now is steadily and consistently improving. It's well, and the backlog and temporary issues that we faced have been resolved.

Senator O'SULLIVAN: In relation to the allocation of conciliations, I note that the Australian Mines and Metals Association suggested that, despite comprising 33 per cent of presidential members, female presidential members have presided over only three per cent of full benches in the last three years. Is there an explanation you can give to the Senate for this apparent discrepancy?

Ms O'Neill : I have seen the media release from the Australian Mines and Metals Association making what is said to be a point about the gender composition of appeal benches. There are a couple of things to say. The act itself provides that, when there is an appeal bench, the most senior member on an appeal bench is the presiding member. That's not the consequence of any choice or discretion within the commission; that's what the act provides. It's also not surprising that the most senior members of any court, or tribunal in our case, sit on more appeal benches than others. At this point in time, the three most senior members of the tribunal happen to not be women. What I would also say is that I'm not sure what the connection is between gender composition on an appeal bench and some suggestion, perhaps, that women don't have access to leadership opportunities within the commission. If you look, for example, in terms of how work is allocated and who leads the processes information allocation of work around particular case types, we've got regional coordinators and deputy regional coordinators in three geographical bases. Then we have practice leads for particular case types and deputy practice leads. The quick look that I had on that was that, at the moment, seven of the 12 leadership positions, from that perspective, are currently held by female members of the tribunal.

Senator O'SULLIVAN: Are all new members appointed to the commission allocated to the full bench?

Ms O'Neill : No. That's not the case. Full benches dealing with appeals work under a roster system, essentially. The roster is set at the start of the year. Member X may be allocated to deal with appeals that arise in X period of time when they are on the roster. There's a slight randomness in that sense as to what appeals come up in the given time. The setting of who's on the roster for appeals that come up during the course of the year is usually set by the president, but for the current year it's set by the next most senior member, the vice president, Adam Hatcher. That has really been to enable the president to focus on finalising a four-yearly review. The task of constituting appeal benches, so who is on particular appeals, is subject to a range of factors: the geographical location of the party, cost minimisation and member availability. But also, where an appeal raises significant issues about a particular case type, the practice lead would be expected to be on the full bench. The capacity to meet performance timeliness benchmarks is also a relevant consideration as to who gets allocated to the appeal roster and appeals. There are a range of factors.

Senator O'SULLIVAN: If members wish to do full bench work, are they allocated cases in a roster?

Ms O'Neill : Not necessarily. If members have a particular interest they could raise that with whoever is setting the appeal roster at the start of the year—in most years, the president, as I've indicated; this year, Vice President Hatcher. A desire is not in itself one of the necessary factors that's taken into account. It's a matter for the president and the vice president at this point in time.

Senator O'SULLIVAN: I think you might have mentioned this but I want to pick up on it. Who determines the full composition of the full bench?

Ms O'Neill : It's through a roster system that's set at the start of the year that covers the full year ahead. That's usually the president, but this year he has delegated that function to the next most senior member, Vice President Hatcher.

Senator O'SULLIVAN: You did say that. Thank you.

CHAIR: Were you ever asked to remove union antigovernment posters from Fair Work Commission kitchen cupboards?

Ms O'Neill : This is going back some time. This is an incident that I recall, and I'm not sure if it's the one that you might have in mind, in the middle of enterprise bargaining for commission staff several years ago. A particular member raised a concern with me that a CPSU poster had been placed in the private kitchen on a particular floor that the public have no access to. That member considered it inappropriate and strongly encouraged me to have it removed immediately. My response at the time was that—in circumstances where there was no formal policy or even official union noticeboards in place, and hadn't been in place for decades; and in the context of a very difficult bargaining round, where staff consultation and employee representative rights were at issue—I did not think it was appropriate for me to, in that context and at that time, direct staff to remove information materials in a private area. Subsequent to the bargaining, when that was concluded we introduced staff noticeboards that the union could post material in appropriate places on around the premises. That's where such material is now posted.

Senator O'NEILL: I appreciate your recall of that matter, which was some time ago, and that unions do have a place in that context, in the appropriate way that you've just described. If I can go back to a couple of clean-up questions around the Boyce matter, which I understand is much more recent than the matter we were just discussing. If you need to take these on notice I will accept that, but I would prefer if you could give me an answer today. What was Mr Boyce's response to the complaint? Are you aware of the complaint that was lodged?

Ms O'Neill : Sorry, Senator, but part of my hesitation earlier was because I'm aware that concerns were raised by a number of people about the figurines. The concerns were raised with the deputy president by at least two people to my understanding.

Senator O'NEILL: Could you take on notice—

Ms O'Neill : Which one constitutes a complaint, though, is the thing that I'm grappling with.

Senator O'NEILL: I understand that a complaint was made—you might be calling it something else—and there were photographs of the figurines submitted. Could you provide the committee with copies of those photos and an explanation of how the photos were obtained, whether they were obtained with or without Mr Boyce's knowledge and how Mr Boyce reacted to being counselled or disciplined or advised—whichever word you choose—about these items being photographed and a complaint being lodged? I'm sure you have some complaint procedures. I would like it if you could provide on notice the details regarding the figurine matter. Also, the details around the life-size picture of Mr Trump. Also around the matters of partisan political media posts—that's kind of three strikes and you're out. It has to be the case with Mr Boyce. Was Mr Boyce appointed as an employer representative to the commission?

Ms O' Neill : Appointments were a matter for the government of the day. From our perspective, that's irrelevant in the sense that we don't have a role in the selection or identification of the appointments that are made, and so we get the appointments that are made by the government from whatever background they come from. Requirements in the act in relation to eligibility to be considered for appointment go to expertise and workplace relations law or other matters.

Senator O'NEILL: And indeed they go to ethical behaviour and being a fit and proper person. Given these incidents, you've been placed in an invidious position this afternoon. I hope that I haven't conveyed any displeasure with you. I think you've done the best that you could with the material you seem to have at hand.

Senator SHELDON: Can I also include myself in that? I appreciate it's a difficult series of questions that we've put to you.

Senator O'NEILL: It's pretty hard to try and explain the situation of scantily clad figurines in a deputy commissioner's office. That is inexplicable, in my view. But given the incidents that are the topic of conversation for this afternoon, are you confident that Mr Boyce continues to be fit to undertake the role of the deputy commissioner of the Fair Work Commission? Is he a fit and proper person?

Ms O ' Neill : That's not a matter that my opinion or otherwise has any bearing on, and it would be inappropriate for me to express a view.

Senator O'NEILL: Senator Payne, then.

Senator Payne: Yes, Senator?

Senator O'NEILL: Certainly as the Minister for Women, you've already expressed in our exchange this afternoon your perspective on historical change about the way women are portrayed in workplaces. My question is, given what is now a matter of public discussion—and we are awaiting the documentation around how these matters were handled; we have the display of a political nature of the Trump cut-out, previous evidence of partisan political media posts and now scantily clad figurines in erotic poses, multiples of them, up to 20, in Deputy President Gerard Boyce's office—are you confident that Mr Boyce is a fit and proper person to hold that significant role?

Senator Payne: Let me be very clear in saying that any conduct in the workplace, or frankly elsewhere, which demeans or disrespects women is completely unacceptable. I think there is complete agreement around the tables on that matter this afternoon. This is the first time I have become aware of this matter, or these matters, and I only know what has been discussed here today. I do intend to seek the advice of the minister in relation to this. It is not for me to indicate whether the individual concerned, of whom I have no awareness otherwise, is a fit and proper person, but it is a matter that I will raise with the Minister for Industrial Relations.

Senator O'NEILL: Thank you. If I could just go back to the questioning from Senator O'Sullivan. Ms O’Neill, I believe you indicated that there are three senior members of the tribunal. Could you name those members?

Ms O ' Neill : The three most senior members are President Justice Ross, Vice President Adam Hatcher and then Vice President Joseph Catanzariti.

Senator O'NEILL: Thank you very much. This does in a way still connect with Mr Boyce, because Mr Boyce did previously work for AMMA, didn't he?

Ms O' Neill : Yes, he did.

Senator O'NEILL: Isn't AMMA the organisation that has been recently accusing the commission of somehow being Labor-biased? Is that correct? Are you aware of those accusations?

Ms O ' Neill : I'm certainly aware of correspondence and media releases that the association has put out expressing certain views about the commission, yes.

Senator O'NEILL: The reality is that the make-up of the Fair Work Commission and the appointees has become a matter of considerable discussion in the public place. I have concern about making these important agencies partisan, and my question goes to that. Why has the government abandoned the convention of appointing new members to the Fair Work Commission in a way that maintains, and is seen to maintain, balance between those with former employer backgrounds and those with former union backgrounds? This has become a hotly contested space. Why is that practice continuing, Minister Payne?

Senator Payne: My understanding is that the minister and his predecessors seek to appoint people who are appropriately qualified and who will do a good job.

Senator O'NEILL: But the point that I'm making to you is that the public perception of this important entity is now that it is definitely not a reflection of those with skills who come from an employer background balanced by those with skills, insights and valuable understandings of the Australian workplace who come from a union background.

Senator Payne: Senator, that's your opinion, and you're very entitled, as you have, to put that on the record.

Senator O'NEILL: It's hard not to continue to stridently put this forward, because the facts speak for themselves, in fact. When in December 2018 the government appointed six deputy commissioners to fill one vacancy, who were all from employer backgrounds, was the Fair Work Commission budget increased sufficiently to fund their generous salaries? What cuts were made in other areas to accommodate them?

Senator Payne: I'm not aware of those budgetary aspects. If there's someone at the table who can answer that, I'm happy for them to do so. Otherwise I'll take it on notice.

Ms O'Neill : We have gone through this in some detail. In the interests of time, I can take it on notice and refer you to the discussion in Hansard. In short, some additional funding was provided relating to the appointment of the members in December 2018.

Senator O'NEILL: Have I correctly characterised it by saying that they were people who were all from an employer background rather than from a union background?

Ms O'Neill : The same question came up, I think, at one of the last estimates, and I think one of the senators pointed out that, based on the minister's press release, one of the members—I think it was Deputy President Cross—had at one point in time worked for an employee association.

Ms Carruthers : I can clarify that: he worked for the New South Wales nurses association.

Senator O'NEILL: Thank you very much. I will just go back to a line of questioning that I opened up this morning. I note there are still six vacancies on the Fair Work Commission Expert Panel, and three of those are to deliberate on the annual wage review. Are you aware of any reasons why those positions have not been filled?

Ms O'Neill : I'm not aware of any reasons.

Senator O'NEILL: It has been a long time coming.

Ms O'Neill : That's true. It hasn't created, to date, any practical problems, impediments or obstacles in the commission discharging its functions to deal with the annual wage review. Provided that appointments are made in the near future, which I understand from evidence this morning is in train, we don't anticipate any issues in relation to the conduct of the 2020 annual wage review.

Senator SHELDON: Minister Payne, in light of the line of questions just asked by the senator, for a wage review it would seem logical that there's a question about expertise, and expertise is a pretty broad thing. You can have a legal understanding of how the law works. You can have an expertise and an insight about employer associations and that part of the workforce, from life experience as well as formal learning. Then, of course, with unions you can have an experience of representing working people and the sorts of pressures, understandings and difficulties that they might face in their working life. The idea of having a panel is to draw people from different experiences with different strengths and for people of goodwill to come to either a consensus decision or a majority decision on what is the most fit and proper way of applying any case without fear or favour.

One of the things I would expect when you have people from three different experiences is that they would be impressing on each other the logic of those experiences, the practicalities of those experiences and the consequences of decisions. Having a commission that is overweight with employer experiences means that you have an overweighed commission that doesn't have the full benefit of what we require from a commission. It seems to me that having six employers is something that is contrary to the interests of good decision-making, consensus building, and also giving people the faith that people within the commission are nonpartisan. So I put the question to you again. Do you believe that it is appropriate to have a balanced commission?

Senator Payne: I don't have anything to add to the responses I provided earlier to you and to Senator O'Neill on this matter, except to say that it is my understanding that appointments will be made for the annual wage review and the timing of those appointments will be addressed.

Senator SHELDON: Will it be balanced?

Senator Payne: As I said in my previous remarks, I am confident that, in the normal course of consideration of appointments, individuals who will be appointed will have appropriate skills and background, as you would expect—and that is a matter for the minister.

Senator SHELDON: With due respect, I don't respect the fact that there will be appropriate skills and balance, because there hasn't been appropriate skills and balance to date.

Senator Payne: The composition of the tribunal, where they are lawyers who have experience representing a broad range of clients—those clients could be employers, they could be employees, they could be governments—I presume they bring all of that experience to the tribunal. But, as I said—I did respond to these questions earlier—I am also confident that appointments will be made in time for the annual wage review.

Senator SHELDON: Will AMMA be making more recommendations on who should be appointed—like Mr Boyce?

Senator Payne: I'm not familiar with that organisation, other than in the discussion here today, or the process that the minister employs.

Senator O'NEILL: He wouldn't be taking AMMA's recommendation?

Senator Payne: I am sure that the minister will bear in mind the range of obligations that he is required to address in constituting the commission when he makes his appointments.

Senator O'NEILL: There are no rules around an equal representation; it is simply the minister's choice. Is that correct?

Senator Payne: Is that a statement, Senator O'Neill?

Senator O'NEILL: Is that correct?

Senator Payne: I don't have in front of me the guidelines for the appointment of commissioners, but it is usually a matter for government, as it has been in the past and I presume will continue to be so.

Senator O'NEILL: So, if it continues to be stacked and very biased, we can sheet it completely home to the minister and your government for making those personal choices?

Senator Payne: That's a statement, Senator.

Senator O'NEILL: Just to be clear: you said that appointments will be made, even though they've been delayed, prior to the annual wage review.

Senator Payne: I understand they will be made for the annual wage review. That is my understanding.

Senator O'NEILL: Has the Attorney-General or his office spoken to or sought the views of the president about appointments?

Ms O'Neill : Sought the views of particular—

Senator O'NEILL: Have you been consulted?

Ms O'Neill : No; not about the identity. Well, I'll take it on notice. Certainly I haven't been.

Senator O'NEILL: Have you been consulted about the mix and the discernment of skills in any way?

Ms O'Neill : I certainly haven't, Senator.

Senator O'NEILL: Are you aware of anybody—

Ms O'Neill : I'll take it on notice, but not to my knowledge.

Senator O'NEILL: Are you aware of anybody who is aware of the functioning of your commission who has been consulted by the minister to make sure that he appoints the people who will enhance your capacity, rather than diminish it?

Ms O'Neill : No. The standard approach is that the president, from time to time, will advise the relevant minister of whether any appointments are needed or not and perhaps the geographical location of where there may be some needs—but not beyond that and certainly not in relation to skills or backgrounds.

CHAIR: I think we have time for one more question before we release you and we go to the afternoon break.

Senator O'NEILL: Are you aware of when the Attorney-General will announce these appointments? Have you been consulted in that regard at all?

Ms O'Neill : No, I haven't.

Senator O'NEILL: No; Senator Payne is aware but you are not aware.

CHAIR: Thank you, Senator O'Neill. Thank you, representatives from the Fair Work Commission. Ms O'Neill and your senior officers, you are released.

Proceedings suspended from 16:44 to 17:02