External scrutiny

Judicial and administrative tribunal decisions

The Workplace Relations Legal Group supports an effective workplace relations system by providing legal advice to our portfolio Ministers and the government on key and emerging workplace relations issues and by facilitating parliamentary consideration of legislation that gives effect to government policy.

During the year the department was involved in the following significant matters before courts and administrative tribunals.

Annual wage review

In the 2015 annual wage review, the department on behalf of the Australian Government submitted that the Fair Work Commission should take a ‘cautious approach, taking into account the need to boost employment and job creation, as well as maintaining wages for those on the minimum wage and those on award classification wages’. The department provided the commission with:

  • an initial submission laying out the government’s position (27 March 2015)
  • responses to questions raised by the commission (15 May 2015)
  • a post-budget submission outlining the budget forecasts and relevant budget measures (15 May 2015).

On 19 and 20 May 2015, officials from the department and the Treasury appeared before the Fair Work Commission to outline and explain the government’s position.

On 2 June 2015, the Fair Work Commission released its decision to increase the national minimum wage and award classification wages by 2.5 per cent. Starting on 1 July 2015, the national minimum wage will be $656.90 a week ($17.29 an hour).

Asmar v Fair Work Commission [2015] FCA 16

On 5 December 2014, Justice Beach of the Federal Court heard an application brought by Diana Asmar and Kimberley Kitching of the Health Services Union Victoria No. 1 Branch to prohibit the Fair Work Commission from continuing an inquiry into the potential revocation of fraudulently obtained entry permits. The applicants contended that the Fair Work Commission’s general revocation power in section 603 of the Fair Work Act 2009 did not include the power to revoke a right-of-entry permit.

The Fair Work Commission indicated that as an independent tribunal it would not take an active role in the proceeding. In the absence of any other appropriate contradictor, the Minister for Employment successfully intervened under section 569 of the Fair Work Act and made submissions that rejected the applicants’ argument.

Justice Beach dismissed the application, finding that there was no compelling reason to narrow the operation of section 603 to exclude a power to revoke a decision relating to the issue of a right-of-entry permit.

Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCAFC 11

In November 2014, the full court of the Federal Court heard an appeal against the decision in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2014] FWCFB 1313, in which the full bench of the Fair Work Commission quashed an earlier Fair Work Commission decision to approve an enterprise agreement. The employer sought judicial review. The union separately sought a declaration as to the legal effect of the decision to quash the approval. The applications to appeal were heard together.

The Minister for Employment intervened in relation to the scope of the Fair Work Commission’s power to quash a decision on appeal. This issue had not previously been considered by a court. The Federal Court found that the commission can only quash a decision to approve an enterprise agreement at the point when the agreement is approved, such that the agreement is taken to never have had legal effect.

Toyota Motor Corporation Australia Ltd v Mamara [2014] FCAFC 84

In May 2014, the full court of the Federal Court heard Toyota’s appeal against the decision in Marmara v Toyota Motor Corporation Australia Ltd [2013] FCA, in which 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 and a breach of section 50 of the Fair Work Act.

The Minister for Employment intervened and argued that ‘no extra claims’ clauses in enterprise agreements could not override the variation provisions of the Fair Work Act. On 18 July 2014, the full court of the Federal Court upheld Toyota’s appeal and found that the ‘no extra claims’ clause could not prevent the employer from pursuing variations to the enterprise agreement, as that would be inconsistent with the Fair Work Act.

Parliamentary committee inquiries

The department appeared before Senate Estimates on five occasions during 2014–15, for a total of six days:

  • Supplementary Estimates—23 October and 14 November 2014
  • Additional Estimates—26 February and 10 April 2015
  • Budget Estimates—1 and 2 June 2015.

Senate Education and Employment References Committee

The department assisted the committee with the following inquiry:

  • The impact of Australia's temporary work visa programs on the Australian labour market and on the temporary work visa holders

Senate Education and Employment Legislation Committee

The department assisted the committee with its inquiries into the following Bills:

  • Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2]
  • Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 [Provisions]
  • Construction Industry Amendment (Protecting Witnesses) Bill 2015
  • Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014, and Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Bill 2015
  • Fair Work Amendment (Bargaining Processes) Bill 2014
  • Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015 [Provisions]
  • Social Security Legislation Amendment (Strengthening the Job Seeker Compliance Framework) Bill 2014 [Provisions]
  • Fair Entitlements Guarantee Amendment Bill 2014.

Reports by the Auditor-General

During 2014–15, the Australian National Audit Office tabled one report in parliament that made recommendations relating to the department:

  • Audit Report No. 32 2014–15: Administration of the Fair Entitlements Guarantee.

The department was also involved in the following cross-portfolio reviews.

  • Audit Report No. 16 2014–15: Audits of the financial statements of Australian Government entities for the period ended 30 June 2014.

Office of the Australian Information Commissioner

During 2014–15 the Office of the Australian Information Commissioner made one finding in relation to the department involving documents requested under the Freedom of Information Act 1982. Details can be found at www.austlii.edu.au/au/cases/cth/AICmr/2014/115.html.

Disability reporting mechanisms

Since 1994, Commonwealth 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 at www.apsc.gov.au. From 2010–11, departments and agencies were no longer 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 was released in 2014 and is available at www.dss.gov.au.

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. Each agency must display on its website a plan showing what information it publishes in accordance with the scheme’s requirements. The department’s publication plan is available at http://docs.employment.gov.au/pages/information-publication-scheme-ips.