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Education and Employment Legislation Committee
23/10/2019
Estimates
EMPLOYMENT, SKILLS, SMALL AND FAMILY BUSINESS
Fair Work Commission

Fair Work Commission

CHAIR: I now call representatives from the Fair Work Commission. I welcome Ms O'Neill, general manager. Ms O'Neill, do you wish to make an opening statement?

Ms O'Neill : No, thank you.

Senator PRATT: Welcome, Ms O'Neill and all your officers. I want to begin by asking if you're able to provide for the committee a list of matters before the commission in which the federal government have appeared or intervened in the last three years, and a summary of the positions that they've taken in each of those proceedings.

Ms O'Neill : I certainly don't have that information at hand, but I'm happy to take the question on notice.

Senator PRATT: Okay. Are you able to characterise some of the kinds of matters that they're intervened in for us this evening?

Ms O'Neill : The one that springs to mind immediately is an application for approval of an enterprise agreement covering the Metropolitan Fire Brigade in Victoria. There were various applications for review in that process. It's not a common occurrence; that is the other observation I'd make. It's not a common situation where the government intervenes or seeks to participate in proceedings before the commission.

Senator PRATT: Yes, so they're selectively deciding what to get involved in—but that's the way I characterise it; clearly you can't and won't do that. What is the current average approval time for enterprise agreements that have been lodged with the commission?

Ms O'Neill : I'm happy to answer that. We've been very open that we've had some real challenges in dealing with the applications for approval of enterprise agreements in a timely way. We've had a significant backlog that we've now worked through, and the situation is literally improving week by week at the moment. From February to September this year, complete and compliant applications were approved in a median time of 17 days, and all applications, involving those that are very complex and require multiple interventions, have been approved in a median time of 34 days.

Senator PRATT: So the current rate is 17 days?

Ms O'Neill : If you're looking at all applications for approval in that time period, it's 34 days. That was through till September. There's been slight improvement, but that's the most—

Senator PRATT: So it has improved. What was it prior to that 17-day—

Ms O'Neill : In the 2017-18 financial year, for example, it was a median of 76 days.

Senator PRATT: Yes, okay. I was looking for a sense of the change over time. What has been the impact on parties negotiating agreements in relation to the issues with the time period?

Ms O'Neill : Obviously—well, not obviously—it's our objective to deal with applications as quickly as possible. Where we're not able to do that in a timely way, it's been because applications have either been incomplete—they've been missing required information—or there have been various technical defects or they've been ranging through to the substantive, highly contested applications. So there's a spectrum of scenarios. But whenever it takes an extended period of time for an application to be dealt with, then that is not something that we seek to do, because it creates anxiety for the parties that have gone through the bargaining process and seek to have their arrangements approved.

Senator PRATT: What's the reason for the drop? Have you had extra resources, are there less agreements for approval, or have you changed your processes?

Ms O'Neill : All of those, and more. It's been a combination of incredibly intense attention, focus and monitoring and dealing with issues that surface. In some areas, we've provided additional resources at various points in time. We've undertaken various engagement exercises with regular participants to try to help them lodge applications that are both compliant and complete and, therefore, can be dealt with much more quickly. We've undertaken various research along the way, and one of the pieces of feedback that we obtained was that they wanted—sorry, I'll just go back a slight step. The way that the process works is that applications are lodged and, initially, we undertake, through administrative staff, a review or analysis of the application against the various statutory criteria and provide that information in the form of a checklist to a member of the commission, who's then responsible for determining the application. One of the changes that we've made is that, from the time that that checklist is provided to chambers, any further interaction or engagement with the parties is done through chambers, whereas previously some of that had been undertaken by the administrative team. That's provided some efficiencies as well. We also had some significant delays in the time it was taking for the triage team to complete the checklist. For some time now, we've been able to ensure that all applications are given that initial assessment by the triage team and provided to chambers to deal with within two weeks.

Senator PRATT: That makes sense. At some point, you must have realised that the 76 days wasn't good enough and that there were systemic issues. Clearly there's a strategy there that you've used to drive that down?

Ms O'Neill : And we're not finished. We're not satisfied that we can't do more. We've done further things—for example, forming an enterprise agreement user forum, a reference group where we interact with users and seek their views and suggestions as to what we can do. We've just finalised the development of a smart form that, again, will provide prompts to applicants lodging applications and give them early flags as to where there might be issues they'll encounter. It's an ongoing exercise.

Senator PRATT: Mr Hehir, is that the same reference group we were discussing earlier today?

Mr Hehir : Yes.

Senator PRATT: Can I ask what the commission's view is on modern awards, noting that employers such as those in the restaurant industry have made claims that they're too complex?

Ms O'Neill : I wouldn't characterise it as the commission having a view about modern awards in quite that way. The commission has a very clear role under the legislation in relation to modern awards and is driven by the modern awards objective. Essentially, the commission's charged with ensuring that awards provide—I'll get the precise language—a fair and relevant minimum safety net of terms and conditions, taking into account various factors. The act sets out various terms that the commission may include in modern awards, must include in modern awards and must not include in modern awards. So it's a fairly comprehensive regime that the commission is driven by. In terms of complexity—

Senator PRATT: But, to be clear—sorry, I won't interrupt.

Ms O'Neill : Part of what I'm trying to convey is that simplicity is in the eye of the beholder in some respects. If the awards only contained one thing, then that might be simpler.

Senator PRATT: But not fair.

Ms O'Neill : I'm really just drawing attention to the commission's obligation, which is to ensure that the modern awards provide a fair and enforceable safety net.

Senator PRATT: If you take all the complexity out, clearly that would drive other undesirable outcomes?

Ms O'Neill : That's not to say, though, that the commission doesn't, as part of its work—

Senator PRATT: Reducing complexity?

Ms O'Neill : ensure that the awards that are made and reviewed are expressed in simple and clear terms so that end users—employers and employees—are able to understand their rights and obligations under the awards, as I think it's been described, without needing a history lesson or a paid representative to make sense of it. So there's a number of things that we have done and continue to do to try to make the modern awards as simple as possible. We have them expressed in plain language. We've undertaken various user experience research to ascertain user preferences about how awards can be expressed more simply, and we'll continue to do that.

There are two other points. The first is that, in one view, the award system is now significantly simpler than it has been in the past. It wasn't, at least from my perspective, too long ago when there were something like 3½ thousand federal awards—

Senator PRATT: Yes, it is already a lot simpler.

Ms O'Neill : and a range of state and federal awards that employers and employees had to navigate. We're down to 122 modern awards. So some would say that that is, in itself, simpler. The other point to make—because this is an issue that we're very aware of and alive to, and we want to make it as simple as possible for awards to be complied with—is that there was a statement of the full bench of the commission last month. As part of that, the bench has invited any person to identify any term in a modern award that is ambiguous, uncertain or confusing so that it could be considered for plain language redrafting.

Senator PRATT: In that context, in terms of the issues that come before the commission, how do you tell the difference between someone's complaint about complexity being real versus it being, perhaps, an employer dragging their feet on properly adhering to the delivery of the entitlements of the employee?

Ms O'Neill : The commission members deal with applications and the evidence before them, and it's common that they weigh up different arguments and different evidence and come to a conclusion overall as to their assessment of it.

Senator PRATT: In the context of the restaurant industry's claim that they are too complex, we've seen a public debate around that, which has been significant. There have been excuses made that things are, in their view, too complex, but clearly the commission's able to work through those issues themselves.

Ms O'Neill : All I can do is reiterate that we are endeavouring to make the instruments as simple as we can. One of the pieces of feedback that we had from user research that we undertook was that modern awards generally might provide the basic rates for various classifications in the award and then the overtime clause might say that it is time and a half for the first two hours, or whatever. One of the pieces of feedback that we've taken onboard is that particularly employers and particularly small-business employers didn't want to have to do those calculations themselves and would benefit from having the actual dollar rates for every obligation spelt out in the instrument.

Senator PRATT: What a good idea!

Ms O'Neill : We're doing that. That makes the instruments a lot longer in some cases. I guess I'm just making the point that we're responding to that user feedback, but longer instruments may apply—but that doesn't necessarily mean more complex.

Senator PRATT: No. That's fine. In the case of a small business having an unfair dismissal claim against them, are they necessarily required to pay for legal representation?

Ms O'Neill : We go to some effort, and a lot of our energies are directed at making sure that the tribunal is accessible to all, employees and employers, without the need for legal representation. Some applicants and employers will nonetheless choose to be represented, but we aim to have our processes accessible so that that's not necessary. It's certainly the case that a very significant portion of parties do not engage legal representatives in unfair dismissal cases before the commission.

Senator PRATT: Last December the minister appointed six new deputy commissioners to replace one vacancy. Has the Fair Work Commission been properly resourced to fund these additional appointments? Or is it having to find savings elsewhere in its budget?

Ms O'Neill : The answer to that is slightly complicated. We did receive additional funding to support the appointments of those members appointed in December. We had already, in the course of that year, gone halfway through the financial year and allocated a full budget, notwithstanding that. So, there was a kind of shortfall that we needed to manage in the remaining six months of the 2018-19 financial year. And in the current year and beyond, there is a gap which comes more from the fact that the profile of members that we have, in terms of the number of presidential members as against commissioner-level members, is not aligned to our funding model. So, there's an element of discrepancy there.

The other point to make—and I will perhaps demonstrate it this way: in 2009-10 the proportion of revenue from government provided to the commission that was expended on direct member remuneration was around 18 per cent; it's now just over 25 per cent. Part of that is also the cumulative effect on efficiency dividends, where, because of the proportion of member remuneration into our budget, that's almost hived off, in a sense—there's no efficiencies. So, the efficiency dividend is applied against the whole budget, but there's that element that we really can't achieve any efficiencies in respect of. It provides a kind of squeeze over time and makes managing within resources somewhat challenging.

Senator PRATT: Have you been asked by the government to participate in or provide input into Minister Porter's industrial relations review?

Ms O'Neill : In terms of the two discussion papers that have been released, we've got a good ongoing relationship with the department and engage formally and informally with them and provide information where appropriate.

Senator PRATT: Have you given them advice about what other kinds of areas need to be looked at?

Ms O'Neill : No, save to say this: the commission don't engage in the policy space, but, where there are, generally, minor technical amendments to the legislation that may assist the administration of the tribunal, from time to time the president may convey such views to the minister and the department. But, in relation to the current greenfields agreements and the enforcement penalties piece, we haven't provided any information to date in relation to those two matters.

Senator PRATT: Are you being consulted on wage theft at the moment, in the drafting of legislation for that?

Ms O'Neill : Not formal consultation, in any sort of formal sense. We have discussions with the department from time to time around our experiences.

Senator PRATT: Because you've got experiences in issues of wage theft perhaps coming before the commission? What do you mean?

Ms O'Neill : I'm sure I have at times mentioned to the department that, when somebody comes with an unfair dismissal claim at the commission, it's not uncommon for the applicant to allege that there have also been underpayments or unpaid entitlements as a result. It's those kinds of conversations—is as high as I'd put it.

Senator PRATT: Have you seen anything in writing from the government in relation to the wage theft issue?

Ms O'Neill : I don't believe so.

Senator PRATT: Is Mr Billson still working for the Fair Work Commission?

Ms O'Neill : No.

Senator PRATT: How much has he been paid in total, as at the conclusion of his appointment?

Ms O'Neill : Mr Furlong will be able to assist you with those details.

Mr Furlong : This matter was actually dealt with on notice. I can give you the question number if that would assist.

Senator PRATT: Yes. If you can give me the question number, then I can go back and find it.

Mr Furlong : EMSQ18-000292. The total cost of the consultancy—this is including the travel related expenses—was $28,058.45.

Senator SHELDON: You mentioned that, with the extra appointments and, particularly, the appointments of the deputy president, there was a need, Ms O'Neill, regarding managing the budget. What steps did you have to take to manage the budget? Were there cuts? What changes needed to occur to bring that within budget?

Ms O'Neill : We operate within pretty tight parameters all the time. In that sense, there was nothing particularly unique. We often find ourselves having to cast around and identify ways to trim our sails to achieve a balanced budget. At that particular time in December, one of the things that we did was postpone a planned conference of members. We cut down on some travel and we rescaled a small number of projects and matters of that nature.

Senator SHELDON: What sorts of projects would be rescaled?

Ms O'Neill : From memory, there was an information management project that we slowed down, I guess—would probably be a better way to describe that.

Senator WALSH: Just confirming there were no implications for anyone seeking the assistance of Fair Work?

Ms O'Neill : We didn't reduce service delivery, no, Senator.

Senator WALSH: Thank you.

Senator PRATT: Can I just briefly ask whether the commission's had any reaction from the minister after it was revealed that pre-Christmas in 2018 that Fair Work Commission Deputy President Gerard Boyce had posted anti-union and pro-Liberal tweets on social media?

Ms O'Neill : Senator, was your question whether the minister has made any comment?

Senator PRATT: Whether the minister has taken the issue up at all with the commission, or have you done anything—has there been any internal response to that?

Ms O'Neill : I can't speak for the minister. I'm not aware of any communication in relation to that, but I can't speak to that. It has been dealt with internally, I can say that, Senator.

Senator PRATT: So you would now have a policy around the use of social media or other statements that would undermine public confidence in the commission, undermine respect for the commission or undermine the reputation of the commission?

Ms O'Neill : It's not in the nature of a new policy, Senator. There's a code of conduct that applies to members that makes it essentially clear that they shouldn't engage in matters of a political nature—I'm paraphrasing slightly there, but that's essentially the flavour of it.

Senator PRATT: And, so, in that context, his actions pre-Christmas of 2018 triggered the response in upholding the code of conduct, or was there some other trigger for that?

Ms O'Neill : The code of conduct is essentially a guide to members. It's based on a judicial guide. It's not a prescriptive set of rules.

Senator PRATT: No, I understand that but, clearly, the code of conduct was invoked. I just wanted to ask: was there a particular trigger for invoking upholding the code of conduct in terms of who intervened?

Ms O'Neill : The president raised it with the member concerned.

Senator PRATT: Did anyone from the government also raise it with the commission?

Ms O'Neill : Not to my knowledge.

Senator PRATT: Can I ask you perhaps, Senator Payne or Mr Moraitis, when those events happened, if there was any reaction from the government?

Mr Moraitis : We'll take that on notice. It was a previous minister and a previous department, but I can take that on notice, if you like, Senator.

Senator PRATT: Thank you.

Ms O'Neill : Perhaps it might help if I just mention that the code is really the responsibility of members and, there is certainly no capacity for the president to enforce compliance for any breaches of the code and there's also not a role for the minister to enforce the code. Where there are complaints about the performance of a member's duties, there is a different mechanism and there are some circumstances where the president can refer a complaint to the minister. But those circumstances haven't arisen in this instance, and so I'm not even aware that the minister would be aware of it.

Senator PRATT: Clearly, commissioners need to be mindful of the code and uphold it at all times but, if someone starts breaching the code and doesn't prompt themselves that that's the case, what's the internal process? Ms O'Neill: The starting point is that each member's appointed as an independent office holder until 65 and they can only be removed by both houses of parliament other than in limited circumstances. The president's got no power to discipline a member, including for a breach of the code. So, ultimately, members are responsible for their conduct to parliament. So it's really a matter for parliament rather than—

Senator PRATT: But in this case you say that the president reminded the deputy president of their obligations under the code and that triggered a response.

Ms O'Neill : It did. The member gave an undertaking not to engage in social media.

Senator PRATT: Thank you.

CHAIR: Thank you. We have 15 minutes left, which will be divided between One Nation and the government. I will go to you, Senator Roberts, first.

Senator ROBERTS: Thank you, Chair. Thank you all for coming today. Are you aware that there is a large coalmine in the Hunter Valley that is deliberately exploiting and defrauding workers of their entitlements? This deliberate exploitation of hundreds of coalminers with the full knowledge of the Hunter Valley branch of the major Australian coal union—the employer's a major multinational employer, a major multinational labour hire firm—and with the disregard of New South Wales ministers in the past is astonishing. The dishonesty is both audacious and callous. Is it true that the Fair Work Commission is the organisation where disputes related to long service leave should be brought?

Ms O'Neill : It would depend, Senator. If, for example, under the terms of an enterprise agreement, long service leave was a matter dealt with in the agreement, then the disputes procedure under that agreement may enable disputes arising, including in relation to long service leave, to be referred to the commission.

Senator ROBERTS: I'll come to the EA. Thank you for that. Are you aware that not only are these casual coalminers being massively underpaid; they are being denied equivalent entitlements such as sick and holiday leave, redundancy and penalty rates for shift work, and, while their full-time counterparts working side by side with them receive long service leave after eight years, these so-called full-time casual workers, whose actual hours worked are severely underreported to Coal LSL, rarely attain long service leave, as casual employment allows immediate terminations and intimidation, and fatigue from ill-treatment and burnout from limited time off causes many miners to leave the industry? Does the Fair Work Commission deal with issues that relevant to casual employees working as miners in the black coal industry in New South Wales?

Ms O'Neill : I'm not aware of the particular case that you're referring to.

Senator ROBERTS: Would you like my office to give you a briefing?

Ms O'Neill : Let me explain the role of the commission in those cases.

Senator ROBERTS: In view of the chair's comment, could you make it very brief?

Ms O'Neill : Okay. The role of the commission would essentially be to determine the terms in the relevant award—that would go to casual employment and other matters—after hearing parties and, secondly, to deal with disputes that arise under the award, if that is what the dispute's procedure provides.

Senator ROBERTS: How can this be when the black coal industry award does not allow casuals in the black coal industry other than office administrative personnel? These people I'm talking about—hundreds of people—are working in production side by side with full-time employees, doing the same job with the same skills and the same qualifications. They have an EA, an enterprise agreement, that was approved, apparently by the Fair Work Commission. Yet the EA cannot be less—correct me if I'm wrong—than the award, in terms of employment conditions, and an employment classification that is not in the award, casuals, cannot be added to an enterprise agreement. That leaves the employee worse off by far. These people are 40 per cent underpaid. They're far worse off than if they were covered by the Black Coal Mining Industry Award. There is no annual leave, no sick leave, no redundancy and no accident pay. How can that be?

Ms O'Neill : The requirement under the legislation that the commission administers, in terms of the comparison, is that any enterprise agreement must provide, amongst other things, that each employee covered by the agreement will be better off overall compared to the underpinning award. That's not to say—

Senator ROBERTS: Are they better off when they have no annual leave, no sick leave, no redundancy, a lower pay rate and no accident pay?

Senator Payne: Ms O'Neill just needs to finish her answers.

Ms O'Neill : I can't speak hypothetically. That is the requirement of the commission. In considering whether to approve an agreement, I don't know, there are appeal mechanisms available if there has been an error, but, on the face of it, I've got no reason to think that the agreement doesn't meet the statutory criteria.

Senator ROBERTS: Why would Coal LSL have referred people employed as casuals in the coal industry to bring their complaints to the Fair Work Commission, as has happened in the past?

Ms O'Neill : Senator, I am sorry. It's just really difficult in an abstract hypothetical way to—

Senator ROBERTS: Would you like our office to give you a briefing?

CHAIR: Or perhaps we could put some questions on notice that might assist the witness to have some more time to respond.

Senator ROBERTS: I am asking for general responses, Chair. For example, one of the miners appeared at the Fair Work Commission in front of Deputy President Hamberger nearly two years ago. We can get the documents to you, if you would like them. Reportedly, Deputy President Hamberger signed off on many of the same enterprise agreements. So, why has the Fair Work Commission in the past refused to assist casual workers in the black coal industry—as I said, coalminers doing the same work alongside the people classified as full-time workers—doing the same rostered work hours? How can that be?

Ms O'Neill : All I can say is that members of the commission, in determining the provisions in the award, follow the act. Similarly, in approving the enterprise agreements, they ensure that they meet the statutory tests, which include the BOOT, the better off overall test.

Senator ROBERTS: About two years ago a casual worker provided formal, written complaints over a period of 12 months. The then employment minister, Michaelia Cash, advised him to go to the Fair Work Commission. The Fair Work Commission said—and I am quoting him now, 'Yes, we identified an issue exists, but would not intervene because he had legal representation.' Then this miner had a phone conference with the Fair Work Commission to get accident pay. He requested his full accident pay and the Chandler Macleod Group refused. At that point the mediation ended and the Fair Work Commission said there is nothing more that they could do. People have been abandoned in the Hunter Valley.

Ms O'Neill : Again, sorry, but in the abstract I really can't add to my answers.

Senator ROBERTS: How many disputes from 2016 to date involving Chandler Macleod Group have been brought by coalminers to the attention of the Fair Work Commission, involving complaints about coal long serve leave entitlements, and have they all been resolved? You probably will have to take that on notice?

Ms O'Neill : I am happy to take that on notice.

Senator ROBERTS: How can two people doing the same production job, same roster, be paid so differently? How can one be casual and the other full-time?

Ms O'Neill : It depends on the terms of the award and the agreement that applies to their employment.

Senator ROBERTS: Would you like my office to bring the documents to you?

Ms O'Neill : I am not rejecting your generosity; it's just that I am not quite sure how that would assist, given the limited role that the commission has, but perhaps—

Senator ROBERTS: In what way is it limited?

Ms O'Neill : Well, in the way I have described. It is in terms of dealing with disputes that arise under an agreement and it is not appropriate for—it is a tribunal; it deals with matters through applications that are lodged and dealt with in an open and transparent way. Taking information outside those processes is not straightforward. What I am suggesting is that if I deal with the questions that I have taken on notice and if, in the course of doing those, further information would be of assistance then we would be happy to provide that.

Senator ROBERTS: Perhaps you could give these miners some advice. The CFMMEU says an EA must expand—as in having superior entitlements—on the award. The CFMMEU has not done anything about this atrocity. The major employer, a major Australian multinational, has done nothing. It condones it. It knows what is going on. The major direct employer, the labour hire company, a major multinational company, is aware of it. And the NSW Minerals Council is aware. Have you got any advice as to where these people should go next?

Ms O'Neill : Not at this point.

Senator ROBERTS: No, they have been failed. They have been failed by everyone they have approached, and they have approached all of these people. Thank you very much, Chair.

CHAIR: I appreciate your time on some of these issues you have raised on notice or perhaps to the Fair Work Ombudsman.

Senator O'SULLIVAN: I would like to ask you about the triage of issues. Can you let me know if any members undertake the initial triage of general protection conciliations?

Ms O'Neill : It is not triage. The commission's role in dealing with general protection claims involving dismissal is limited to convening a conference and providing an opportunity for the parties to resolve the matter by agreement. If the matter is not resolved, then essentially the commission considers issuing a certificate to that effect. That certificate is a necessary precondition to enable the applicant to then go on and make an application in Federal Circuit Court or the Federal Court. That mediation, if you like, and issuing the certificate is the role of the commission, other than and in very limited circumstances where, by consent, the commission can arbitrate. So in terms of your question, 'Do members of the commission undertake that work?' the answer is: at times, yes.

Senator O'SULLIVAN: So different members take a different role there? They have a different allocation; is that right?

Ms O'Neill : The work of members varies based on a model of regional allocation. We have regional coordinators that allocate work to members in their region, and there is an overlay of case type, and practice leads allocate particular types of cases to members in conjunction with the regional coordinator. I hope that makes sense.

Senator O'SULLIVAN: Yes, I think so. Are you able to provide us—and I'm happy for you to take this on notice—with a breakdown for 2018-19 of the proportion of matters allocated to each member that are general protection conciliations, including for those members appointed during the 2018-19 year?

Ms O'Neill : I'll take it on notice, but I foreshadow—and there have been multiple questions on notice in the past dealing with this, and discussions at estimates—we're not in a position to provide a breakdown of the work of individual members by case type.

Senator O'SULLIVAN: Why is that?

Ms O'Neill : It's essentially about protecting the independence of the tribunal, and there are a series of authorities that I'm happy to elaborate on in the course of the answer.

Senator O'SULLIVAN: The 2014 award review is still ongoing, isn't it?

Ms O'Neill : It is. We're at the end part, but it is still ongoing.

Senator O'SULLIVAN: And that has produced hundreds, possibly even thousands, of decisions. Is that right?

Ms O'Neill : It has. It has been a very significant body of work.

Senator O'SULLIVAN: Are these mostly full bench decisions?

Ms O'Neill : From the beginning through to the last month, there have been a total of 470 decisions and statements. I don't have a breakdown of the proportion of those that are full bench or single members. But, certainly, a significant amount of the work has been undertaken by the full bench.

Senator O'SULLIVAN: Most of them are full bench decisions?

Ms O'Neill : Yes.

Senator O'SULLIVAN: Okay. You said you can't identify the members, but can you break it down at all by member, like 'member A'—preferably by name, but if you can't then that's fine.

Ms O'Neill : How about I take on notice and see what we can do.

Senator O'SULLIVAN: Yes.

Ms O'Neill : So the question is: of the decisions in the four-yearly review, what's the breakdown of who has been involved in those decisions?

Senator O'SULLIVAN: I'll just state the question, so it's clear. Can you provide a breakdown of the number of decisions each member has been involved in over the period since 2014?

Ms O'Neill : In relation to the four-yearly review?

Senator O'SULLIVAN: Yes.

Ms O'Neill : I'm happy to take that on notice.

Senator O'SULLIVAN: Yes, that's fine. Thank you.

Senator DAVEY: I have just two questions about your reporting. In your corporate plan for agreement approvals, you have a benchmark for approvals that don't require undertakings, but you don't have any benchmark for agreements that do require undertakings. Can you explain why that is?

Ms O'Neill : We've got a number of benchmarks in relation to agreement timeliness. In terms of the portfolio budget statements, the measure there is timeliness in approving agreements without undertakings. We also publish information on the timeliness of simple and complex, and all agreements, so we cover the field in different ways, if you like.

Senator McDONALD: Can you explain to me why this year in your annual report you've only reported on agreements with no undertakings? My understanding is that most agreements that are reached actually have undertakings.

Ms O'Neill : We do publish that information. It's not the budget measure, but we do publish the information about the timeliness of all agreements, including complex ones. We did change the budget measure last year as a reflection of the significant increase that we've encountered in the last two or three years in particular of agreements that either have not been complete or compliant at lodgement and have therefore required, in many cases, undertakings in order for them to be approved. So we modified the budget paper measure last year, but, as I've indicated, we report publicly on the whole range of other measures.

Senator McDONALD: Last year the government secured passage of amendments to the Fair Work Act that allowed the Fair Work Commission a discretion to waive noncompliance with minor procedural or technical requirements.

Ms O'Neill : Yes.

Senator McDONALD: Has that improved approval times? And can you quantify those?

Ms O'Neill : Perhaps I can answer it this way: one of the really significant issues in the past, before the amending bill, was that when an application had a problem, even a minor technical one, because of the absence of the discretion a large proportion of applicants elected to withdraw their applications rather than have them determined, in all likelihood, by a dismissal. We've shifted from up to 17 per cent of applications being withdrawn before passage of the bill to under five per cent. That's a very significant impact that I think is largely attributable to passage of the bill.

CHAIR: Excellent, thank you. Thank you very much for coming along this evening. That ends the appearance by the Fair Work Commission. Thank you, Ms O'Neill, and your officers—you are released and excused. We will now move to representatives from the Registered Organisations Commission.