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Reports by the Auditor-General

During 2013–14, the Australian National Audit Office (ANAO) tabled one report in parliament that made recommendations relating to the department:

  • Audit Report No. 37 2013–14: Management of services delivered by Job Services Australia.

The department was also involved in the following cross-portfolio reviews conducted by the ANAO:

  • Audit Report No. 13 2013–14: Audits of the financial statements of Australian Government entities for the period ended 30 June 2013
  • Audit Report No. 33 2013–14: Indigenous employment in Australian Government entities
  • Audit Report No. 40 2013–14:  Trials of intensive service delivery
  • Audit Report No. 44 2013–14: Interim phase of the audits of the financial statements of major general government  sector agencies for the year ending 30 June 2014
  • Audit Report No. 47 2013–14: Managing conflicts of interest in FMA agencies.

Judicial and administrative tribunal decisions

There were no judicial decisions or decisions of administrative tribunals in 2013–14 that had a significant impact on the operations of department. During the year the department was involved in the following significant matters before courts and administrative tribunals.

Transitional review of modern awards

The Fair Work Commission largely completed the two-year transitional review of modern awards in 2013. The previous government was involved in a number of proceedings as part of the review, including the full bench matter concerning an application by the Shop, Distributive and Allied Employees’ Association to vary junior rates in the General Retail Industry Award 2010. The previous government supported the application to increase rates of pay for 20-year-old employees from 90 per cent of the adult rate to 100 per cent of the adult rate.

On 16 and 17 July 2013, the government appeared before the full bench in support of its written submission of 17 May 2013. On 21 March 2014, the full bench decided to vary the award to provide that 20-year-old employees are entitled to 100 per cent of the adult rate if they have worked for their employer for six months or more. The National Retail Association is seeking judicial review of this decision before the Federal Court and the matter is ongoing.

Four-yearly review of modern awards

On 1 January 2014, the Fair Work Commission formally began its four-yearly review of modern awards. The Minister for Employment wrote to the commission on 9 December 2014 indicating that the government would monitor the progress of the review and, where appropriate, direct the department to actively engage in proceedings.

On 3 February 2014, the government made a submission in the initial stage proceedings. The government suggested, among other things, that modern awards should support job creation and be simple and easy to understand. Departmental officials appeared at conferences and hearings before the commission in the initial stage proceedings on 5 and 26 February and 6 March 2014.

The commission completed the initial stage of the review on 17 March 2014, when it released a decision on the legislative framework for the review and a statement on the process for the review. There are two concurrent stages to the review—the common issues stage and the award stage. The review is expected to be completed in 2015.

Annual Wage Review 2014

In the 2014 review of minimum wages, the Australian Government argued that the Fair Work commission should take a ‘cautious approach’ in setting minimum wages and ‘consider the softening economic…and labour market outcomes’. The Australian Government provided the commission with:

  • an initial submission laying out the government’s positions (28 March 2014)
  • responses to questions raised by the commission (1 April 2014)
  • responses to further questions raised by the commission (16 May 2014)
  • a post-budget submission outlining the budget forecasts and relevant budget  measures (16 May 2014).

On 21 May 2014, officials from the department and the Treasury appeared before the commission to outline and explain the government’s position.

On 4 June 2014, the commission released its decision to increase minimum wages and award wages by 3 per cent from 1 July 2014. The decision will increase the national minimum wage to $640.90 per week ($16.87 per hour).

Toyota Motor Corporation Australia Limited v Marmara VID1364/2013

On 19 December 2013, Toyota appealed the Federal Court’s decision in Marmara v Toyota Motor Corporation Australia Limited [2013] FCA 1351. The primary judge found that the employer’s proposal to vary an enterprise agreement during its nominal term was a contravention of the ‘no extra claims’ clause in that agreement. His Honour found that the employer had contravened section 50 of the Fair Work Act 2009 and issued an injunction preventing it from conducting, organising, promoting or facilitating a vote on the variations.

On 26 and 27 May 2014, a full court of the Federal Court heard the appeal. The Minister for Employment intervened to make submissions in support of the applicant. The Minister argued that ‘no extra claims’ clauses in enterprise agreements are of no effect to the extent that they are inconsistent with the variation provisions in the Fair Work Act. At 30 June 2014, the appeal had not been determined.

Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042

On 27 February 2014, a full bench of the Fair Work Commission heard an application for approval of the Peabody Energy Australia Moorvale Enterprise Agreement 2013. The matter was referred to a full bench to determine the question of whether a notice of employee representational rights is invalid if it is accompanied by additional material. The Fair Work Commission cannot approve an enterprise agreement unless a valid notice has been provided.

The Minister for Employment made submissions in this matter after the Fair Work Commission issued directions extending an invitation to do so. On 2 April 2014, the full bench, consistent with the Minister’s submissions, found that employers are not restricted from providing additional material to employees at the same time as they provide a notice of employee representational rights. However, section 174(1A) of the

Fair Work Act makes it clear that there can be no departure from the form and content of the notice that is prescribed in the Fair Work Regulations 2009. The full bench found that it is a question of fact as to whether the additional material forms part of, or is separate to, the notice of employee representational rights.

State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160

On 11 to 13 November 2013, a full court of the Federal Court heard appeals by the State of Victoria against the decisions in Construction, Forestry, Mining and Energy Union v McCorkell Constructions [2013]  FCA 446 and Construction, Forestry, Mining and Energy Union v State of Victoria [2013]  FCA 445 that it had breached the general protections provisions of the Fair Work Act by requiring contractors to comply with the Victorian Building Code and Guidelines.

The Minister for Employment intervened in the appeals to make submissions about the operation of the Fair Work Act.

On 19 December 2013, the court allowed Victoria’s appeals and set aside the penalty orders. The court also dismissed the union’s cross-appeal that the Victorian Building Code and Guidelines were an invalid exercise of the state’s executive power. There was no order as to costs.

On 16 January 2014, the union applied to the High Court for special leave to appeal the Federal Court’s decision to dismiss its cross-appeal. The special leave application has not yet been listed for hearing.

Equal remuneration applications C2013/5139 and C2013/6333

On 15 July 2013, United Voice and the Australian Education Union filed an application with the Fair Work Commission for an equal remuneration order for employees in long day care centres. On 8 October 2013, the Independent Education Union filed an application for early childhood teachers in long day care centres. The applications were later expanded to include employees working in preschools.

The matters are being heard together by a full bench of the commission and the Commonwealth is named as a respondent to both applications.

The full bench has decided to initially deal with a range of threshold legal and conceptual issues concerning the equal remuneration provisions before it assesses the merits of the applications.

The Commonwealth made submissions on the threshold legal and conceptual issues identified by the full bench. The Commonwealth proposed that a rigorous approach be taken to assessing whether the requirements of the provisions have been met and each case should be dealt with on its merits.

A decision on the threshold issues is still pending, and the full bench has not started its examination of the merits of the applications.

Financial Services Council Pty Ltd v Industry Super Australia Pty Ltd and Anor NSD 4447/2014

On 6 June 2014, a full court of the Federal Court heard an appeal by the Financial Services Council Pty Ltd regarding the constitution of the expert panel undertaking the four-yearly review of default fund terms of modern awards. The Minister for Employment intervened in the appeal to make submissions about the operation of the Fair Work Act.

The seven-member expert panel originally included three members; however, two of the panel members were directed by the president of the Fair Work Commission on 7 March 2014 to no longer deal with the matter due to ‘potential conflicts’ within the meaning of the Fair Work Act. The president directed that another member be appointed to form part of the expert panel, and subsequently gave directions on 17 April 2014 appointing himself to the expert panel.

On 6 June 2014, the full Federal Court declared invalid the president’s direction that he form part of the expert panel. Further, the court found that, as currently purportedly reconstituted, the expert panel was not reconstituted as required under the Fair Work Act. On 10 June 2014 and in consequence of the order, the president issued a statement saying that the expert panel as currently purportedly reconstituted would not deal further with the matter.

Parliamentary committee inquiries

The department appeared before Senate Estimates on three occasions during 2013–14 for a total of seven days:

  • Supplementary Budget Estimates—22 and 23 October 2013
  • Additional Budget Estimates—26 and 27 February 2014
  • Budget Estimates—2 and 3 June 2014.

The department also gave evidence and made submissions to the following parliamentary committee inquiries.

Senate Education and Employment Legislation Committee

  • Building and Construction Industry (Improving Productivity) Bill 2013 and Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013
  • Fair Work (Registered Organisations) Amendment  Bill 2013
  • Fair Work Amendment  Bill 2014
  • Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014.

Senate Education and Employment References Committee

  • Government’s approach to re-establishing the Australian Building and Construction Commission
  • Fair Work (Registered Organisations) Amendment Bill 2013.

Changes to disability reporting in annual reports

Since 1994, Commonwealth departments and agencies have reported on their performance as policy adviser, purchaser, employer, regulator and provider under the Commonwealth Disability Strategy.

In 2007–08, reporting on the employer role was transferred to the Australian Public Service Commission’s State of the Service Report and the APS Statistical Bulletin. These reports are available on the APSC website. From 2010–11, departments and agencies have no longer been required to report on these functions.

The Commonwealth Disability Strategy has been overtaken by the National Disability Strategy 2010–2020, which sets out a 10-year national policy framework to improve the lives of people with disability, promote participation and create a more inclusive society. A high-level, two-yearly report will track progress against each of the six outcome areas of the strategy and present a picture of how people with disability are faring. The first of these reports will be available in late 2014 and can be found on the Department of Social Services website.

Tripartite consultations on International Labour Organization matters

The department has primary responsibility for International Labour Organization (ILO) matters that affect the Australian Government. Australia is required to report on the tripartite consultations concerning international labour standards in accordance with obligations under the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). Australia ratified the convention in June 1979.

Tripartite consultation on ILO international standards occurs in a number of ways. Meetings of the International Labour Affairs Committee—a committee of the National Workplace Relations Consultative Council—are held regularly. Direct consultation also takes place between the department and the representative employer and employee organisations—the Australian Chamber of Commerce and Industry and the Australian Council of Trade Unions.

The International Labour Affairs Committee was established in 1978 under section 12(1) of the National Labour Consultative Council Act 1977. Its terms of reference are to consider matters of substance relating to the ILO and other relevant international bodies. The committee met once during the reporting period, on 5 March 2014.

Article 5 of Convention 144 requires consultation on several matters. These are discussed in the following sections, together with the action that took place during the reporting period.

Government replies to questionnaires

During 2013–14 the International Labour Office, the permanent secretariat to the International Labour Organization, asked for responses to questionnaires dealing with the following matters:

  • the proposed convention and recommendation on strengthening the response to forced labour—in preparation for standard setting at the 2014 International Labour Conference
  • the proposed recommendation on transitioning from the informal to the formal economy—in preparation for the first discussion on standard setting at the 2014 International Labour Conference. This recommendation will again be on the agenda at the 2015 International Labour Conference.

The Australian Government submitted responses to these questionnaires on 17 January 2014. The Australian Chamber of Commerce and Industry and the Australian Council of Trade Unions were invited to contribute to the Australian Government’s responses, and their comments were forwarded to the International Labour Office in January 2014.

New protocol adopted by the ILO

On 12 June 2014, the Australian Government joined the international community in supporting the adoption of a new ILO protocol seeking to eliminate forced labour, including human trafficking and slavery.

The new protocol was adopted at the International Labour Conference in Geneva, and supplements the Forced Labour Convention, 1930 (No. 29), which Australia ratified in 1932. The protocol encourages practical measures aimed at preventing forced labour as well as measures to protect and assist victims of forced labour.

Australia chaired the Committee on Forced Labour at the conference, and members of the Australian delegation were active and influential participants in the drafting process. The protocol was also strongly supported by the Australian Chamber of Commerce and Industry and the Australian Council of Trade Unions.

Re-examination at appropriate intervals of unratified conventions and recommendations

In March 2014, in accordance with Article 19 of the ILO Constitution, a report was submitted to the ILO on the following ILO instruments that Australia has not ratified:

  • Rural Workers’ Organisations Convention, 1975 (No. 141)
  • Rural Workers’ Organisations Recommendation, 1975 (No. 149).

Under the Declaration of Fundamental Principles and Rights at Work, countries that have not ratified the Minimum Age Convention, 1973 (No. 138) are requested to provide an annual review report on new developments over the last 12 months. Australia provided a report to the ILO in September 2013.

Questions arising out of reports made to the ILO under Article 22 of the ILO Constitution

In September 2013, in accordance with Article 22 of the ILO Constitution, reports were submitted to the ILO on the following ILO conventions that Australia has ratified:

  • Forty-Hour Week Convention, 1935 (No. 47)
  • Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
  • Right to Organise and Collective Bargaining Convention, 1949 (No. 98)
  • Human Resources Development Convention, 1975 (No. 142)
  • Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144)
  • Asbestos Convention, 1986 (No. 162)
  • Part-Time Work Convention, 1994 (No. 175).

Information Publication Scheme

Agencies subject to the Freedom of Information Act 1982 are required to publish information to the public as part of the Information Publication Scheme. This requirement is in Part II of the Act and has replaced the former requirement to publish a section 8 statement in an annual report. The department’s plan is available.