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Education and Employment Legislation Committee
Fair Work Commission

Fair Work Commission


CHAIR: Welcome. Ms O'Neill, do you have an opening statement?

Ms O'Neill : I do not.

CHAIR: Okay, then we will go straight to questions.

Senator CAMERON: Ms O'Neill, there is a $12 million cut the next financial year in the budget papers; is that correct?

Ms O'Neill : Under the budget, funding is reduced next year by $3.48 million.

Senator CAMERON: What about over the forward estimates?

Ms O'Neill : I do not have that right in front of me, but I can get that for you.

Senator CAMERON: Does $12 million sound like—

Ms O'Neill : That sounds about right.

Senator CAMERON: Your average staff level will fall from 702 to 675?

Ms O'Neill : No. I suspect you are looking at the FWO budget papers rather than those for the Fair Work Commission. We do not have anything like that number of staff.

Senator CAMERON: What is your average staff level?

Ms O'Neill : The estimated actual figure for 2015-16 was 343.

Senator CAMERON: What will it be—

Ms O'Neill : Under the budget papers?

Senator CAMERON: Yes.

Ms O'Neill : It will be 326. So it will be a reduction of 17.

Senator CAMERON: Where will those job cuts come from?

Ms O'Neill : We are considering the impact and implications of the changes in the budget and other factors at the moment. I do not have a clear answer for you at this point in time.

Senator CAMERON: So you are looking at how this will affect the commission's capabilities?

Ms O'Neill : We will look at all of our options.

Senator CAMERON: There is a new deputy president?

Ms O'Neill : Yes.

Senator CAMERON: A Ms Lyndall Dean. How will this deputy president be funded?

Ms O'Neill : There is no additional funding accompanying that appointment.

Senator CAMERON: What is the cost of this appointment to the Fair Work Commission?

Ms O'Neill : The base for remuneration is in the order of $450,000, but the total cost, when you take into account travel, particular equipment and so forth—

Senator CAMERON: And staff?

Ms O'Neill : and staff, is in the order of $580,000.

Senator CAMERON: That does not leave much for staff, does it? How many staff does the deputy president get?

Ms O'Neill : Generally it is one associate. That is unless a member, whether a deputy president or a commissioner, is a panel head, for example, in which case there are generally two associates provided.

Senator CAMERON: So on top of this $3.48 million cut from next year, you have to find $580,000. So in effect your operational capacity has been reduced by over $4 million.

Ms O'Neill : I would not put it that way. The information on the funding from government is there. There is no doubt appointments without funding put pressure on our budget, but we will do what we can to operate within the resources provided to us.

Senator Cash: Senator Cameron, I will just make a clarification. I think the funding cut you are referring to is funding that was part of the Road Safety Remuneration Tribunal and FWO process. Perhaps Ms O'Neill might like to take you through that.

Ms O'Neill : Sure. Perhaps I can give you a bit of context around the impact of appointments on the budget position that the commission faces. There will certainly be some challenges, particularly next year—2016-17. There are a range of factors that will contribute to that, both revenue changes and also some expenditure drivers. The reduction in funding next year is predominantly, as the minister indicated, a direct consequence of the repeal of the Road Safety Remuneration Act. The reduction associated with that next year is approximately $2.4 million out of the $3.48 million. The remainder of the reduction in funding is largely arising from ongoing impacts from previous efficiency dividends but also the impact of PRODAC. For a very long time, unlike other courts and tribunals, in the context of the commission members were treated as staff for the purposes of PRODAC. That is the explanation for the reduction in funding—the combination of those two factors.

On the expenditure side, there are some pieces of work that we are working on at the moment that are resource intensive. One of those is the referrals from the trade union royal commission. Similarly, while the four-yearly review of modern awards we are working on is not necessarily an enduring piece of work, it will put some resource constraints on us in the immediate future.

Then, of course, additional appointments will add to that pressure. I should say, though, that the appointment that was made yesterday takes us to a current total of 43 primary appointments. I think that is right. That is together with an acting commissioner, various dual appointees and expert panel members. That is not the highest number of members that we have had. We had 46 for a period in 2013-14.

Pr oceedings suspended from 15:32 to 15:46

CHAIR: We will reconvene.

Senator SESELJA: There was a report in The Australian a few weeks ago and it was in relation to an MOU between the ACT government and Unions ACT. I am not sure if you aware of it. The Australian of 16 March said:

All ACT government agencies have been told to 'decline to award a tender proposal for ACT government works or services' if the tenderer does not undertake to meet a list of union demands, including examination of company records, the names and addresses of workers and the right of entry for unions to recruit members.

Has there been any investigation into this deal that you are aware of?

Ms O'Neill : Mr Enright might assist with that question.

Mr Enright : There has been no investigation or inquiry conducted by the Fair Work Commission as the regulator of registered organisations in relation to that matter. There is nothing that I have heard from what you have said, Senator, that seems to fall within the jurisdiction of the Fair Work Commission.

Senator SESELJA: So there would be no issues under the Fair Work Act with a situation where the union can effectively get those kinds of details and veto potential tenderers? That is not within the jurisdiction of the Fair Work Act?

Senator CAMERON: I would like to know exactly what we are talking about. I would like to see the agreement. You cannot be asking the Fair Work Commission to be responding to an article in The Australian.

CHAIR: Why not?

Senator SESELJA: Why note? When did that rule come in?

Senator CAMERON: They are entitled to know exactly what they are answering the question on and they should not speculate.

CHAIR: Okay. I am sure the secretariat is, right now, downloading that article.

Senator CAMERON: It is not the article—

CHAIR: Then the Fair Work Commission can have a copy of the article and respond to it appropriately.

Senator CAMERON: Okay.

Senator SESELJA: It has been reported and I would have thought the Fair Work Commission would have some knowledge of it. It is quite concerning to the MBA in the ACT and a number of other groups, including the business chamber, have expressed serious concerns about this. I wonder whether this MOU in particular comes under the jurisdiction of the Fair Work Act. Mr Enright, your answer seems to suggest that it would not come under the jurisdiction of the Fair Work Act.

Ms O'Neill : Mr Enright, was answering not so much from the perspective of the Fair Work Act but the Fair Work (Registered Organisations) Act, which is a scheme for which we are responsible regulating the registration and activities of certain organisations. Mr Enright was saying that there was nothing in your description that suggests that it is a matter that would fall within the jurisdiction as regulator of registered organisations.

Turning my mind quickly from that short description to anything under the Fair Work Act, again, there is nothing that immediately springs to mind. We are talking there about a scheme whereby the national workplace relations tribunal has a role in supervising bargaining, approving enterprise agreements, dealing with industrial action taken in pursuit of various claims, and that there is no obvious jurisdiction, if I can put it that way, arising out of an MOU between various parties.

Senator SESELJA: The building code is not your jurisdiction, so I would ask that elsewhere?

Ms O'Neill : Yes.

Senator Cash: I think the Fair Work Building Commission is on later.

Senator SESELJA: Thank you. I will come back and ask them that.

Senator WILLIAMS: Ms O'Neill, are you aware that the Road Safety Remuneration Tribunal conducted hearings over Easter?

Ms O'Neill : Yes.

Senator WILLIAMS: I understand that in the weeks before its abolition the tribunal called a hearing that ran over Easter Saturday, Easter Sunday and Easter Monday. Is it normal for the tribunal to sit during public holidays?

Senator CAMERON: I can tell you the answer is yes.

Ms O'Neill : I would not say that—

Senator WILLIAMS: I am going to learn something here.

Senator CAMERON: I have been there and done that over weekends in the industrial commission.

Ms O'Neill : In terms of the Road Safety Remuneration Tribunal, it is not usual in that context. In terms of the Fair Work Commission, it is not uncommon at all for urgent matters to be dealt with out of hours, weekends and so forth. I have a note to the effect that the full bench, in their decision, responded to the question that there were suggestions or requests that the full bench not sit over Easter and expressed a view in their decision about why they had decided to sit over Easter.

Senator WILLIAMS: You said it is not normal for the Road Safety Remuneration Tribunal to sit over that time of the year. Is there any reason why the hearing could not have been conducted on normal work days either side of Easter?

Ms O'Neill : I will try to be as helpful as I can, but that is entirely a matter for the president and the full bench as to when and how they sit. My role and the role of the staff is to support and provide administrative support for the former tribunal. I cannot speak for the president. My role under the former legislation was to assist the president of the Road Safety Remuneration Tribunal and ensure that the tribunal exercises its functions. Essentially, that means that my role of that of my staff is to provide administrative support and facilities et cetera.

Senator WILLIAMS: I understand a number of owner-drivers were subpoenaed by the tribunal directly. Do you know what I mean by 'directly'?

Ms O'Neill : I presume you mean to them personally?

Senator WILLIAMS: Yes. Is it normal for the tribunal to subpoena witnesses directly?

Ms O'Neill : Again, my view is no more relevant or of value than any other individual off the street because it is not part of my function to have such a view.

Senator WILLIAMS: Perhaps you might take that on notice and do some research and report back to the next parliament. Would you be able to do that?

Ms O'Neill : I can, but I was just going to say it is certainly not unusual, in my experience of tribunals and certainly the Fair Work Commission, for individuals to be summonsed to appear and give evidence.

Senator WILLIAMS: These individuals were subpoenaed by the tribunal. Do you know what selection process the tribunal used to identify those witnesses? Do you have any idea about that? Are there any criteria? Can you help us, Ms Clarke?

Ms Clarke : As Ms O'Neill mentioned, the staff involvement was administrative support. My understanding, or recollection, in the weeks leading up to the Easter hearing, which Mr Enright and I attended to support staff, was that individuals who made submissions to the tribunal were selected and asked to attend to provide further information about their submissions.

Senator WILLIAMS: But you do not know the selection process that the tribunal used?

Ms Clarke : I am not aware of that.

Senator WILLIAMS: No-one knows the selection process?

Ms O'Neill : No, and we would not anticipate knowing that.

Senator WILLIAMS: Okay. We will move on. Given that many of those witnesses were regionally based, did the tribunal make any appropriate allowances for those witnesses to be able to attend the hearings without having to travel long distances over the Easter weekend?

Ms O'Neill : My understanding is that a number of witnesses gave evidence by mobile phone, for example.

Ms Clarke : There was a directions hearing that the bench held just prior to Easter where the witnesses were able to express issues with travel. They were each, individually, asked about that and given opportunities to present by phone.

Senator WILLIAMS: Okay. For those witnesses that did have to travel over the Easter weekend, did the tribunal provide conduct money to enable those witnesses to cover the cost of their travel and accommodation over the Easter weekend?

Ms O'Neill : No.

Ms Clarke : No.

Senator WILLIAMS: They did not. So those witnesses who were subpoenaed—some had to travel long distances from regional areas, no doubt—had to attend at their own cost, their own time. Accommodation at Easter is a pretty busy time in accommodation facilities. Correct? There was no remuneration whatsoever for their costs. That is correct, is it?

Ms O'Neill : That is right. There is no framework for such payments to be made in respect of any—

Senator WILLIAMS: The tribunal sat on a day commencing at 7 am Perth time. The commencement was earlier than the normal practice of the tribunal. Why was a 7 am start necessary?

Ms O'Neill : The proceedings commenced at either nine or 10 am Eastern Standard Time, which, because of the time difference, was, of course, 7 am Perth time.

Senator WILLIAMS: Did the tribunal take any steps to inform those witnesses of their right to seek to be represented? When witnesses wanted to be represented, did the tribunal inform those witnesses of that?

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

Senator WILLIAMS: I understand some witnesses were told that if they did not attend the tribunal in person that they would face six months imprisonment, while their submission on the matter would be withdrawn. Was that a typical approach adopted by the tribunal when dealing with self-represented witnesses?

Senator CAMERON: Ha, ha. That is a bit—

Senator WILLIAMS: It is not a laughing matter, Senator Cameron.

Senator CAMERON: It is a laughing matter—

Senator WILLIAMS: No, it is not.

Senator CAMERON: because they do the same thing with the fair work and building commission.

Senator WILLIAMS: I will repeat the question, Ms O'Neill: I understand some witnesses were told that if they did not attend the tribunal in person that they would face six months imprisonment—we will just take that part of the question; are you aware that they could have faced six months in prison if they did not attend the tribunal?—or their submissions would be withdrawn.

Ms O'Neill : I would have to take on notice, I am afraid.

Senator WILLIAMS: So you are not familiar with that one bit? Has anyone told you off the record?

Ms O'Neill : No, I am not—and certainly not with enough confidence.

Senator WILLIAMS: Ms Clarke, are you aware of that?

Ms Clarke : I did not see the summonses. I am not sure.

Senator WILLIAMS: This is very heavy-handed stuff, in my opinion, if what I am saying in these questions is true. That approach to me is—

Ms O'Neill : It would not be unusual, if someone has been directed or ordered to appear in order to elaborate or be questioned in relation to a submission that they have made, if they want to have their evidence considered in a formal sense by the decision makers, for them to be available. In virtually all jurisdictions I can think of, if someone is summonsed to attend there is some potential penalty that would attach for simply failing to attend without any reasonable excuse.

Senator WILLIAMS: I am well aware of that in the court system. So this tribunal had the powers of our court system, no doubt?

Ms O'Neill : I would not say that, but it certainly had the powers to require people to attend.

Senator WILLIAMS: They can summons or subpoena people and say: 'If you don't roll up, we're going to lock you up for six months; that's your maximum punishment.' That is a pretty powerful lever.

Ms O'Neill : I have not agreed with that description of the powers; I was just making a general point.

Senator WILLIAMS: I am going to make another point here. I am aware of the case of Alina Hawkins. Ms Hawkins was one of the witnesses, I understand, who was subpoenaed by the tribunal to give evidence. Ms Hawkins has a baby, and I understand that Ms Hawkins raised the fact that she had a baby that she needed to care for when she was subpoenaed. What arrangements were made for Ms Hawkins either not to attend the tribunal in person or to be able to breastfeed her child while at the tribunal? Are you familiar with the witness?

Ms O'Neill : I am not, so I would have to take the detail on notice. But, as Ms Clarke indicated, our understanding is that witnesses were given the opportunity to give their evidence by way of phone rather than travelling to attend.

Senator WILLIAMS: Let me take you to that point, Ms O'Neill. Is it normal practice for the tribunal to require breastfeeding mothers to travel to the tribunal in person to give evidence?

Ms O'Neill : As I have indicated, our understanding is that witnesses were not required to attend. They were given the opportunity to give evidence in other forms. But in terms of any particular case, I do not have that information and I would have to take that on notice.

Senator WILLIAMS: Please do, because I would like to quote from an email Ms Hawkins received on 24 March 2016. After dealing with the notice to appear, the email concludes by saying:

You should be aware that it is an offence under section 89 of the Road Safety Remuneration Act to fail to attend at the Road Safety Remuneration Tribunal in accordance with an order requiring a person to attend. The penalty for such an offence is imprisonment for six months.

Would you agree with that? That would not be false? You might check that out.

Ms O'Neill : No, I would not agree with that. If you wish to provide those details, I can assist in following up the—

Senator WILLIAMS: The point I make is this: it disgusts me to think that for a young, breastfeeding mum they used the heavy-handed tactic of, 'You'll show up or we'll lock you up for six months.' I just think that those are bully tactics, but we will move on.

I understand that the tribunal heard evidence on the first sitting day, the Saturday, from those witnesses who chose to give evidence over the phone. Was this option offered to all witnesses?

Ms O'Neill : I am sorry, I am not trying to be unhelpful, but these were all decisions of the tribunal and not administrative staff or—clearly—myself. And so—

Senator WILLIAMS: Fine, I can understand that; you were not sitting on the tribunal. But will you take it on notice?

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

Senator WILLIAMS: Because I specifically want you to see if Ms Hawkins had been offered that very offer that those people had on the Saturday—okay?

Ms O'Neill : Certainly.

Senator WILLIAMS: How did the tribunal choose which witnesses they would offer telephone attendance to? Would you not be able to answer that?

Ms O'Neill : I would not.

Senator WILLIAMS: But you might be able to find out for us?

Ms O'Neill : I will do my best.

Senator WILLIAMS: You might be able to talk to Ms Jennifer Acton, who was the president of the now defunct tribunal.

Ms O'Neill : She was. She is currently on leave though, so I will do my best to find answers to your questions.

Senator WILLIAMS: What amazes me is why the tribunal required some witnesses to attend in person, but others were allowed to speak on the phone to give evidence. I find that amazing.

I understand that a number of owner-drivers were asked to give evidence about their commercial arrangements. What steps did the tribunal take to inform these witnesses of their right to seek to have this evidence given in confidentiality, given that their competitors, including Toll and Linfox, were present in the courtroom? Do you understand what I mean by that? They were told to give their commercial information, yet their competitors Linfox and Toll—big trucking companies in Australia—were actually present in the courtroom.

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

Senator WILLIAMS: I understand that proceedings were broadcast across courtrooms in each capital city—is that correct?

Ms O'Neill : Yes, there were videoconferences.

Senator WILLIAMS: Right. What options were given for establishing video links in regional cities, given that many of those submitters do not live in capital cities?

Ms O'Neill : I will take it on notice. All of the videoconferencing arrangements were held in our offices, which are only in capital cities. We would not have been able to offer videoconferencing arrangements in the usual way outside of capital cities.

Senator WILLIAMS: Were the witnesses who gave evidence by phone advised by the tribunal before answering questions that their evidence would be broadcast across capital city registries and recorded?

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

Senator WILLIAMS: Please do. Do you consider the tribunal accorded owner-drivers procedural fairness over the course of the hearing of AIG, ACCI and NatRoad's application to delay the commencement of the payments order?

Ms O'Neill : Senator, that is essentially asking for legal advice, and I am not in a position to give such advice.

Senator WILLIAMS: You might be able to find something out for me. It has been reported that around 800 owner-driver businesses made submissions to this proceeding. Can you find out how many made submissions? Do we know that, Ms Clarke?

Ms Clarke : The exact number we will have to take on notice. It was in the vicinity of—

Senator WILLIAMS: I have said 'around 800'. You might be able to take that on notice and let us know. The tribunal rejected an application that appeared to have been supported by the bulk of these 800 businesses to delay the commencement of the order. Is this correct?

Ms O'Neill : The tribunal decided not to delay the commencement of the order. That is right, Senator.

Senator WILLIAMS: Even the Transport Workers Union lodged a submission to delay it until October. Is that correct?

Ms O'Neill : I believe that is the case. I understand the full bench addressed that in their reasons for a decision.

Senator WILLIAMS: That is what I find amazing. Trucking companies and even the Transport Workers Union wanted it delayed, but the tribunal said, 'No, we won't delay it.' Why did the tribunal treat the application from the TWU as it did? It appears to me that they seem to have focused on TWU, but still did not listen. Would you be able to answer with any reason the tribunal—

Ms O'Neill : I cannot speak for the tribunal, I am sorry.

Senator WILLIAMS: I take you to the TWU app for road safety. I understand from the recent reports in the media that the TWU was given taxpayer funding of a total of $222,224 by the former Labor government to educate impacted persons about the road safety system and develop a communications strategy. The TWU has reported not to have put in place such measures. I understand the TWU developed an app in May 2015—some three years after the grant was made—and reportedly presented it to the RSRT for review. Is this correct?

Ms O'Neill : There has been no funding of any kind given by the Fair Work Commission to the TWU or any other party. It may be a matter that you might want to raise with the Fair Work Ombudsman.

Senator WILLIAMS: Let me pause for a minute on that, please. Did you know anything about this proposed app? The TWU asked RSRT to deal with a proposed app. Do you know anything about it?

Ms O'Neill : My recollection is that the former Road Safety Remuneration Tribunal was invited by the Fair Work Ombudsman to have some input into the development of the app, which to my recollection was not taken up.

Senator WILLIAMS: So the TWU had designed this app—

Ms O'Neill : As I said, it is not a matter that we were involved in.

Senator WILLIAMS: And it was going to be reviewed by the RSRT.

Ms O'Neill : No, Senator. What I was trying to convey was that my understanding is that the app was not something that was generated or initiated by the Road Safety Remuneration Tribunal, but as a key stakeholder the tribunal's input was sought.

Senator WILLIAMS: I believe there is a contract. In this contract it refers to the provision of services defined as the delivery of educative activities, guidance materials and assistance on the enactment and implementation of the Road Safety Remuneration Act, the Road Safety Remuneration System and national workplace laws. Those services were due to be provided by 16 June 2014. When did the TWU first approach the tribunal with the work it had done on the app? Do you have any idea of that?

Ms O'Neill : I think you are confusing the Road Safety Remuneration Tribunal with the Fair Work Ombudsman, who is coming up after us today. My understanding is that it was that agency that engaged with the TWU to develop the app.

Senator Cash: So you might want to ask those questions—I think Ms O'Neill is saying—to the Fair Work Ombudsman, who is coming up next.

Senator WILLIAMS: Righto. We might do that, then.

Senator CAMERON: Don't encourage him, Minister!

Senator WILLIAMS: Could you tell us how many staff were dedicated specifically to the Road Safety Remuneration Tribunal functions?

Ms O'Neill : That number varied over the life of the former tribunal. In previous QONs, for example, at different points in time the number of staff dedicated to supporting the RSRT was in the order of four. The approach that I took in terms of supporting the Road Safety Remuneration Tribunal was that an integrated model of support was the most efficient way to support it, and so it was predominantly and overwhelmingly Fair Work Commission staff who spent some of their time supporting the tribunal, rather than dedicated—

Senator WILLIAMS: How many were on the tribunal? How many people are actually listed on the tribunal?

Ms O'Neill : There was the President of the Road Safety Remuneration Tribunal—

Senator WILLIAMS: Ms Acton, yes.

Ms O'Neill : who was a dual appointee. She is also a Fair Work Commission member.

Senator WILLIAMS: Does she get paid by both?

Ms O'Neill : No.

Senator WILLIAMS: She gets the one lot of $450,000 or whatever it was?

Ms O'Neill : She did not get any additional remuneration in relation to her appointment as president of the tribunal. There were four other Fair Work Commission members who were dual appointees to the Road Safety Remuneration Tribunal. They were—

Senator WILLIAMS: When you say 'dual appointees', do you mean they worked for the Fair Work Commission and they worked on the tribunal as well?

Ms O'Neill : That is right.

Senator WILLIAMS: Because the tribunal is clearly not a full-time job—or was it?

Ms O'Neill : That is the statutory scheme that was in place. Then, in addition, there were some part-time industry members. There were four such members who were appointed.

Senator WILLIAMS: Four?

Ms O'Neill : That is right.

Senator WILLIAMS: So you had the president and four others?

Ms O'Neill : No. There was the president and then there were the other dual appointees on the Fair Work Commission.

Senator WILLIAMS: How many dual appointees—two?

Ms O'Neill : No, they were three or four.

Senator WILLIAMS: You had the president, three or four duals and four other appointments?

Ms O'Neill : There were four dual appointees, including the president.

Senator WILLIAMS: Okay. And four others?

Ms O'Neill : In addition, they were four specific Road Safety Remuneration Tribunal industry members who were part time.

Senator WILLIAMS: Okay. I want to look at those appointees. How many were from the transport industry? You have a total of eight on the tribunal, okay? Do you agree with that?

Ms O'Neill : Yes.

Senator WILLIAMS: Of the eight, how many were from the transport industry?

Ms O'Neill : I actually do not have that with me, but I can review the appointments of the industry members. The criteria for appointment under the scheme was essentially their expertise in the area.

Senator WILLIAMS: Okay. I want you to take two questions on notice for me. One is on expertise in that area: how many of those tribunal members represented owner-driver truckies? The other is: of the eight people on that tribunal, how many had a union background?

Ms O'Neill : Certainly.

Senator WILLIAMS: Beautiful.

Senator CAMERON: Were there any fitters or boilermakers engaged there either? Can you take that on notice!

Senator WILLIAMS: Could you please tell us how many staff in total supported the tribunal—that is, on a part-time basis?

Ms O'Neill : That is the point that I was making before, which is that the number has fluctuated over time—

Senator WILLIAMS: Take on notice those staff dedicated to both the Fair Work Commission and the RSRT. That would be good.

Ms O'Neill : Dedicated to both?

Senator WILLIAMS: Sorry?

Ms O'Neill : Did you say to take on notice—

Senator WILLIAMS: You have the tribunal and you have some involved with both, and you had staff supporting the tribunal, okay?

Ms O'Neill : Yes, but, if what you are asking is how many Fair Work Commission staff at any point supported the Road Safety Remuneration Tribunal as well, that would be very difficult to extract.

Senator WILLIAMS: Okay. I will excuse you from that. Was the funding provided for RSRT used to cross-subsidise Fair Work Commission activities that they did not relate to the performance of the functions of the RSRT?

Ms O'Neill : I would not describe it in that sense. When the legislation was first enacted, we looked at the various ways to support the RSRT. We did some basic modelling around what it would cost to have a fully separate and parallel set of structures, supports and arrangements, as distinct from the integrated model that we went with. We went with the integrated model. If we had gone for the separate and stand-alone money, we would not have been funded enough to provide the full range of support. But, having said that, because of that integrated model, the very specific and dedicated costs incurred in supporting the RSRT in isolation are significantly lower, or smaller, than the appropriation, or the funding, associated with the RSRT.

Senator WILLIAMS: I have a few more question. Ms O'Neill, you may be aware of recent media reports that quoted the Fair Work Commissioner saying that, with the loss of the RSRT funding, its ability to carry out its normal day-to-day functions was at risk. Can you explain why the RSRT funding was used to cross-subsidise other activities?

Ms O'Neill : As I have sought to explain, we have run an integrated model. With the reduction of funding associated with the RSRT, there is not a discrete team of a scale sufficient that can be excised, if I can put it into those blunt terms. It impacts across the commission.

Senator WILLIAMS: Is it normal for the Fair Work Commission to use tied funds to cross-subsidise other activities of the Fair Work Commission?

Ms O'Neill : What I have explained is: if we had run a separate set of arrangements and support, it would have cost substantially more than the funding that was initially provided. So we went with the integrated model as the most efficient and cost-effective way to discharge the statutory functions.

Senator WILLIAMS: That may be a case. But, surely, if you have that specific funding for each body, then doesn't that lack transparency of taxpayers' funds when you can just switch it from one to the other?

Ms O'Neill : The assessment was that it was the most efficient use of Commonwealth resources.

Senator WILLIAMS: We will hear more about this. My big concern is that taxpayer funding to review the commercial efforts of the TWU in developing an app—we will have more about that later on. But you might just have to take these few on notice, Ms O'Neill. Did the RSRT enter into any contracts for services or goods in the last two financial years?

Ms O'Neill : Yes.

Senator WILLIAMS: In other words, do they have long-term lease of premises and that sort of—

Ms O'Neill : Oh, no. I will correct this if I am wrong, but my understanding is: there is no understanding or continuing contracts as at the date of repeal.

Senator WILLIAMS: There are none? You are quite sure of that?

Ms O'Neill : As I said, I will correct it if I am wrong, but I do not believe there are any outstanding contractual arrangements.

Senator WILLIAMS: Okay, I want you to do that. Could you please provide a list of any contracted services entered into that exceed $2,000, excluding GST. Could you please explain how those goods and services deliver on the stated legislative objectives of the RSRT. That is it from me, Chair.

CHAIR: Thank you, Senator Williams. Senator Cameron, any questions for the Fair Work Commission.

Senator CAMERON: I am just gobsmacked. I have none.

CHAIR: Okay. We are not here to provide commentary.

Senator WILLIAMS: On the RSRT, take it: I wouldn't blame you for not going near it!

CHAIR: Senator Cameron, you have the call.

Senator CAMERON: Where are we moving to now, Chair.

CHAIR: You have the call for Fair Work Commission.

Senator CAMERON: No. I said I have no questions.

Ms O'Neill : Chair, could I just correct one piece of evidence that I gave earlier? I think I generally agreed with Senator Cameron's question about how much the funding reduction was over the forward years for the Fair Work Commission. I think Senator Cameron identified $12.2 million, or something of that order. It is $9.91 million over the forward years in the PBS. It does not necessarily account for the efficiency dividend that has not gone through, but that is in the PBS. That is the amount.

CHAIR: I have four questions that I would like to quickly—sorry. It would not be estimates, Ms O'Neill, if we did not get to have a couple of questions. My understanding is the CFMEU rules say that CFMEU members are not allowed to be legally represented in discipline matters. Is that correct?

Ms O'Neill : Mr Enright will be able to assist

CHAIR: Mr Enright! How are those right-of-entry forms going?

Mr Enright : I am happy to answer a question on that, Senator.

CHAIR: No, I don't have any. I know we are in a hurry today. It was just a flippant question.

Ms O'Neill : They have changed.

CHAIR: The CFMEU rules about being represented.

Mr Enright : Your question is: are they not entitled to legal representation?

CHAIR: They are not allowed to be legally represented in disciplinary matters.

Mr Enright : That is not quite the case. The CFMEU have rules, and those rules do not prohibit the provision of legal representation. What the rules do—again, I think it is from a media article this morning—for the Construction and General Division is not allow for an absolute right of legal representation. It does not prohibit legal representation; it just does not allow for an absolute right at some stage of their preliminary inquiries. That does not apply later on in their inquiries.

CHAIR: I need you to clarify something for me, then. This document is the registered rules of the CFMEU.

Mr Enright : Yes, thank you.

CHAIR: On page 48, part 11, it reads: 'No-one is entitled to legal representation during investigations.' That is under 'Complaints by members 26A'. Can you explain your answer in reference to my question with respect to this part of the rules.

Mr Enright : Certainly. What you have read out does not preclude the availability of legal representation if appropriate. What it means is that members are not entitled—

CHAIR: There is no 'if appropriate'. There is no discretion there: 'No one is entitled to legal representation during the investigation,' full stop.

Mr Enright : 'Entitled' as of right. What that rule says is that no-one is entitled as of right to legal representation. So there is no automatic right to legal representation. That does not preclude the availability of legal representation if appropriate. In fact, the CFMEU in those matters would be required to provide the same level of procedural fairness and natural justice as any registered organisation.

CHAIR: How long has this been in the CFMEU rules?

Mr Enright : I certified—by a decision of some 18 pages in August 2015—an amendment to CFMEU rules to reflect the very small part you have just read out and other provisions.

CHAIR: I understand other unions have similar restrictions on legal representation in their rules. Which unions have that restriction?

Mr Enright : I would have to take that on notice.


Mr Enright : There are 400-odd branches.

CHAIR: I don't mean to go to the musician's union—

Ms O'Neill : Why not?

CHAIR: Hey! No bagging the musicians union—but maybe the ETU, the AEU?

Mr Enright : Senator, again, there are about 400—


Mr Enright : I would—


Mr Enright : I don't know, Senator. There's—

CHAIR: You don't know.

Mr Enright : I don't know, Senator, there's—

Senator CAMERON: Chair, a point of order—

CHAIR: If they have changed their rules you would actually be—

Senator CAMERON: A point of order, Chair. You cannot badger the witness like this. The witness has indicated clearly that he can take it on notice—and that is the end of it. If the witness takes it on notice that is the end of it.

CHAIR: I was watching you interact with Ms Leon this morning. I would respectfully rule your point of order out of order. Mr Enright is robust enough to take the questioning. He is nodding his assent.

Senator CAMERON: He can take it on notice.

Mr Enright : What I can say, Senator—

CHAIR: Don't direct the witness, Senator Cameron.

Senator CAMERON: I said, he 'can' take it notice.

Mr Enright : What I can say is that there are other registered organisations—unions—with similar provisions in their rules. What I cannot tell you right now is exactly which ones of that roughly 400 reporting units, or 110 registered organisations, have those specifics.

CHAIR: But there are several, many, numerous?

Mr Enright : There would be others. I would not hazard a guess to put a number on it.

CHAIR: Brendan O'Connor said last night that such rules—

Senator CAMERON: Who?

Senator LINES: Who?

Senator CAMERON: Chair, a point of order.

CHAIR: Sorry, Mr O'Connor?

Senator CAMERON: You should refer to the member.

CHAIR: I will take that point of order. Mr O'Connor said last night.

Senator CAMERON: There are a number of Mr O'Connors. Chair, a point of order. Could you clarify which Mr O'Connor you are talking about.

CHAIR: The shadow minister for employment?

Senator CAMERON: That is better.

CHAIR: Excellent.

Senator Cash: His brother obviously looks like him.

CHAIR: It can be confusing, Minister, I do appreciate that. The shadow minister for employment, Mr O'Connor, said last night that such rules are not enforceable. He is wrong, isn't he?

Mr Enright : In the context that I have explained to you, that the rules of unions and registered organisations are enforceable, then the rules—if it is properly enforced in the way that I have explained, with the provision of procedural fairness and natural justice, and does not exclude the provision of legal representation—can be enforced, yes.

CHAIR: Thank you for clarifying that, Mr Enright.

Mr Enright : Happy to help, Senator.

CHAIR: And I am sorry that you have had to sit here all day, but you are free to go.

Senator CAMERON: No, he is not; not yet.

CHAIR: Senator Cameron, I thought you said you had no more questions.

Senator CAMERON: Yes, but I had not heard your questions. Mr Enright, Ms O'Neill: are the CFMEU's rules compliant with the act?

Mr Enright : I certified the amendments in August 2015 in relation to the provisions that the senator has referred to, and I determined that they did comply with the requirements of the registered organisations act. My only hesitation is that some of these rulebooks of these organisations are many, many years old, and some of the provisions in them may not be in compliance with the act, but we have not gone and analysed that in any great detail. But in relation to what the senator has referenced, then I am satisfied they are according to the act.

Senator CAMERON: When I was active in the trade union movement, it was a matter of discretion—

CHAIR: I would argue you still are.

Senator CAMERON: Pardon?

CHAIR: I would argue you still are active in the trade union movement.

Senator CAMERON: What is that supposed to mean?

CHAIR: It is a statement of fact.

Senator CAMERON: You should withdraw that. You are supposed to be a chair.

CHAIR: Aren't you an active unionist, a proud active unionist?

Senator CAMERON: You should just withdraw.

CHAIR: There is nothing to withdraw, Senator.

Senator CAMERON: That is terrible. Mr Enright, when I was active in the trade union movement, it was a matter of discretion for the industrial commission to allow legal representation. The industrial commission actually had discretion in terms of whether people were legally represented—isn't that the case?

Mr Enright : That remains the case.

Senator CAMERON: Yes, so that—

Ms O'Neill : It remains the case, and permission to appear is required.

Senator CAMERON: Yes, and that has been there for decades. I do not know for how long, but certainly when I was active back in the seventies that was the position. So the CFMEU's rules are compliant with the act and not inconsistent with the rules that apply to the Fair Work Commission—is that correct?

Mr Enright : Certainly they comply with the act, and if the CFMEU wanted to allow legal representation in any of their investigative matters, then they are entitled to do that as well.

Senator CAMERON: Good, thanks.

CHAIR: In the rule I read out, No. 11 of 26A—'No-one is entitled to legal representation during the investigation'—specifically relates to when members of the CFMEU are raising complaints against other members of the CFMEU?

Mr Enright : Or specifically when members of the CFMEU are under investigation, yes.

CHAIR: As there are no further questions for the Fair Work Commission, I thank the officers. Have a safe trip home to the beautiful state of Victoria.

Senator CAMERON: Can I ask that we bring on the Fair Work Ombudsman now?

CHAIR: We are following through the program, and I am absolutely confident that if you no longer have Asbestos Safety and Eradication Agency questions, then I only have—I thought Senator Reynolds had some questions.

Senator CAMERON: Chair, I indicate that I had discussions—you were not around during the break—with the minister and the other opposition members. There was a view that there was no problem changing that, but—

Senator Cash: Subject to the chair's agreement though, Senator Cameron.

Senator CAMERON: Yes. Could you give some consideration to that so that we could get to the Fair Work Ombudsman?

CHAIR: I did, and I had strict instructions that Senator Reynolds had a whole range of questions.

Senator Cash: Do we know where Senator Reynolds is?

Senator CAMERON: She said she had—

CHAIR: She is not here. She has left some of those questions with me. I might make a start in the interests of time and get through it.