External Scrutiny

Judicial and administrative tribunal decisions

The Department supports an effective workplace relations system by providing legal advice to the Government on workplace relations matters and by facilitating parliamentary consideration of legislation that gives effect to government policy. This is supported by the Department’s role in providing policy advice.

The Department was involved in the following significant matters before courts and administrative tribunals during 2016–17.

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. These matters are being heard together by a Full Bench of the Fair Work Commission, and the Commonwealth is a respondent to both applications. To date, the Department has made five submissions and appeared at hearings to assist the Fair Work Commission on questions of law and procedural approach.

The four-yearly review of modern awards—Penalty Rates AM2014/305

On 23 February 2017, a Full Bench of the Fair Work Commission decided, as part of the four-yearly review of modern awards, to reduce certain late night, Sunday and public holiday penalty rates in specified modern awards. In making the decision, the Full Bench sought submissions on transitional arrangements to mitigate impacts of Sunday penalty rate reductions in the relevant awards.

The Government made submissions regarding transitional arrangements on 24 March and 21 April 2017.

On 9 May 2017, officials from the Department appeared before the Fair Work Commission in the hearing on transitional arrangements. The Commission’s decision on transitional arrangements for the Sunday penalty rate reductions was handed down on 5 June 2017 and took effect on 1 July 2017.

The Fair Work Commission’s annual wage review

In the 2016–2017 annual wage review, the Australian Government assisted the commission by providing:

  • an initial submission setting out the Government’s position (29 March 2017)
  • a post-budget submission referring to budget forecasts and measures (12 May 2017)
  • responses to questions raised by the Commission (12 May and 22 May 2017).

In the 2015–16 annual wage review decision, the Fair Work Commission also proposed a preliminary hearing into the 2016–17 annual wage review process to deal with the following:

  • United Voice’s proposal to adopt a medium-term target for the national minimum wage
  • a review of transitional instruments
  • a review of existing arrangements for employees with disability.

On 24 September 2016, the Department appeared before the commission at this preliminary hearing and provided a submission on 10 October 2016. On 28 October 2016, the Department responded to questions on notice relating to transitional instruments and on 7 April 2017 the commission made its decision on the preliminary matters. On 17 May 2017, officials from the Department appeared before the commission as part of the substantive proceedings.

On 6 June 2017, the commission released its decision to increase the national minimum wage and award classification wages by 3.3 per cent from 1 July 2017. The decision will increase the national minimum wage to $694.90 a week ($18.29 an hour).

All Trades Queensland Pty Limited v Construction, Forestry, Mining and Energy Union and Others C2016/5213

On 12 August 2016, the Fair Work Commission decided an application for approval of an enterprise agreement made by All Trades Queensland Pty Limited. The commission found that two pre-reform orders of the Queensland Industrial Relations Commission relating to entitlements for some Queensland apprentices expired on 1 January 2014.

All Trades appealed the decision to a Full Bench of the Fair Work Commission. At the request of the Full Bench, the Department made a written submission on 25 November 2016 outlining the history of the transitional arrangements in the move from state systems to the national workplace relations system. The Full Bench dismissed the appeal on 7 February 2017. All Trades then sought judicial review of this decision. The hearing is scheduled for late August 2017.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2017] FWC 2078

In May 2016, Deputy President Lawrence of the Fair Work Commission issued a right of entry permit to Mr James Metcher, Secretary of the New South Wales Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

In late 2016, further information about Mr Metcher came to light and Deputy President Lawrence relisted the matter. The Minister made submissions in these proceedings.

On 14 March 2017, Deputy President Lawrence discontinued the proceedings following Mr Metcher’s resignation from the union on 7 March 2017.

Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86; Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466

On 7 December 2016, the Federal Court dismissed Ms Jane Carrigan’s application for judicial review concerning the report of the Hon Peter Heerey AM QC on his inquiry into matters concerning former Vice President Lawler of the Fair Work Commission. The Federal Court found that the proceedings were barred by the Parliamentary Privileges Act 1987. On 31 May 2017, the Full Federal Court unanimously dismissed Ms Carrigan’s application for leave to appeal the decision.

Parliamentary committee inquiries

The Department appeared before Senate Estimates on three occasions during 2016–17:

  • supplementary estimates—19 October 2016
  • additional estimates—2 and 30 March 2017
  • budget estimates—29 and 30 May 2017.

It assisted the Senate Education and Employment References Committee with its inquiry into the incidence of and trends in corporate avoidance of the Fair Work Act. It also assisted the Joint Parliamentary Committee on Corporations and Financial Services with its inquiry into whistleblower protections in the corporate, public and not-for-profit sectors.

Additionally, the Department assisted the Senate Education and Employment Legislation Committee with its inquiries into a number of Bills:

It also assisted the Senate Economics References Committee with its inquiry into the impact of non-payment of the Superannuation Guarantee.

Reports by the Auditor-General

During 2016–17, the Australian National Audit Office tabled one report in parliament that made recommendations relating to the Department—Report No.25 of 2016–17: The Shared Services Centre.

The Department agreed with the four recommendations of the audit. When establishing new governance arrangements following the Shared Services Centre machinery of governments changes, the Department has actively considered the audit recommendations where relevant.

The Department was also involved in four cross-portfolio reviews:

  • Report No. 3 of 2016–17: Machinery of Government changes (as a survey participant)
  • Report No. 7 of 2016–17: Interim phase of the audits of the financial statements of major general government sector entities for the year ending 30 June 2016
  • Report No. 33 of 2016–17: Audits of the financial statements of Australian government entities for the period ended 30 June 2016
  • Report No. 60 of 2016–17: Interim report on key financial controls of major entities.

Office of the Australian Information Commissioner

During 2016–17, the Office of the Australian Information Commissioner made one finding in relation to the Department involving documents requested under the Freedom of Information Act. Details can be found on the Australia Information Commissioner's website.

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 on the Australian Public Service Commission website. 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 on the Department of Social Service's website.

The Information Publication Scheme

Agencies subject to the Freedom of Information Act 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 on the Department's website

The International Labour Organization

Australia has been a member of the International Labour Organization since the organization was founded in 1919, and the Department has primary responsibility for the Australian Government’s engagement with the organization. Australia is required to report on the tripartite—employers, workers and government—consultations concerning international labour standards in accordance with obligations under the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), which it ratified in June 1979.

Tripartite consultation on ILO international standards occurs in several ways. Meetings of the International Labour Affairs Committee (a subcommittee of the National Workplace Relations Consultative Council) are held three times each year. Direct consultation also takes place regularly 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 require it to consider matters of substance relating to the ILO and other relevant international bodies. The committee met three times during the reporting period, on 27 September 2016 and 20 February and 26 May 2017.

In February 2016, the Minister for Employment gave approval for the Department to begin the process for considering ratification of the ILO’s Forced Labour Protocol. The Department continues to consult with the Australian Chamber of Commerce and Industry and the Australian Council of Trade Unions, state and territory governments and relevant Commonwealth agencies on the compliance of existing law and practice with the articles of the protocol. The Government will decide whether to proceed with ratification of the protocol based on the outcomes of these consultations.