Coalition Senators' Dissenting Report

1.1Coalition Senators note this bill gives effect to the final establishment of governance arrangements for Jobs and Skills Australia (JSA) and follows the interim legislation that was passed in the second half of 2022 which initially set up JSA as a statutory body within the Department of Employment and Workplace Relations (department).

1.2Coalition Senators have serious concerns with some of the provisions in the legislation.

1.3Coalition Senators do not believe this legislation should be passed without amendments.

1.4This legislation establishes an agency which is a far cry from what the Government promised in Opposition. This body will remain within the department as opposed to being truly independent as they campaigned on.

1.5As Opposition Leader, the now Prime Minster said in an op-ed he wrote for the Herald Sun on 12 November 2021:

We will create a new and independent agency to be called Jobs and Skills Australia which will research workforce trends and provide impartial advice about what skills are needed now and what skills will be sought after in the future. Jobs and Skills Australia will be modelled on Infrastructure Australia, which works with industry and governments to research proposed road and railway projects to ensure they are funded on genuine need.[1]

1.6This was a key pillar of the government's election platform. Labor promised a truly independent agency and a truly independent board in the model of Infrastructure Australia; however, this legislation doesn't resemble that model in any shape or form.

1.7This was a point emphasised by the Australian Chamber of Commerce and Industry (ACCI) which said in its submission that:

JSA should be an independent statutory body governed by a multi-disciplinary, independently chaired board. This is in line with previous statements by the Prime Minister and Ministers that had envisioned the organisation as being based on Infrastructure Australia. Instead, the bill will see JSA operate as a statutory body within the Department of Employment and Workplace Relations, led by a Commissioner reporting directly to the Minister.[2]

1.8Coalition Senators note there are stakeholder concerns with the inclusion of a four-member bloc within the Ministerial Advisory Board, allowing the Government to appoint anyone of their choosing to the Board under an extraordinarily broad set of selection parameters.

1.9During the public hearing in Canberra, the Australian Industry Group observed that:

…we too have some reservations about the additional group of four unallocated experts appearing in that board composition. We are concerned that that's too high or it's not clearly specified where they may come from and that that could, in fact, dilute what we see as the most important thing in the ministerial advisory board, and that is the voice of industry.[3]

1.10In its submission, ACCI said that the establishment of this group of four members will:

… by virtue of numbers, carry more weight than the rest of the board. ACCI is concerned that the ability of the JSA to adequately represent the concerns of the business community will be diluted by the presence of a significant bloc of four members outside the employer/employee representative groups.[4]

1.11The Business Council of Australia echoed these concerns with the composition of the four positions, saying in its submission:

… it is unclear what the composition of the 'not more than four other members' of the Board might be. While the Explanatory Memorandum suggests that the four positions would not be available to representatives of employer or trade union groups, it is unclear if this refers to current representatives, or whether it also proscribe former members.[5]

1.12Coalition Senators are concerned that the government will seek to weaponise the wide-ranging criteria for the appointment of the four additional members to the advisory board and utilise it for the benefit of its trade union allies.

1.13In Coalition Senators' view, the broad set of parameters for these additional positions emphasises the need to remove a mandate for employee organisations separately, as outlined in section 16B(1)(c). During the public hearing, Coalition Senators scrutinised the department about the role of trade unions on the advisory board:

Senator O'Sullivan: Was the provision included as justification for mandating to appoint three union officials to the board?

Ms Angus: No, there was no relationship, as far as I'm aware of.

Senator O'Sullivan: I'm curious to understand: how is it appropriate to mandate three union officials to the board but there's no mandate for anyone with experience in skills and VET?

Ms Angus: That was a decision made by the government…

Senator O'Sullivan: I'm curious as to why there's no definition around the qualification of those four additional people, as to what the skills should be.

Ms Angus: I think it merely is to provide the greatest amount of flexibility possible beneath the legislation…

Senator O'Sullivan: There are three positions for unions. How will those three unions be selected out of the many unions that exist?

Ms Angus: At this point, the process of appointment has not been finalised, so we're still working through what the potential options might be. They'll be considered once that work is finalised.

Senator O'Sullivan: Could the CFMMEU be eligible to sit on the board?

Ms Angus: That would be a decision for the government, in line with whatever they determine is the final process for appointing members to the board.

Ms Finnigan: The board members will be appointed by the minister, through consultation with the Prime Minister and subject to Remuneration Tribunal determination.

Senator O'Sullivan: So could someone from the CFMMEU be eligible? Could John Setka be eligible to appointed by the minister?

Ms Angus: I think that's a possibility …[6]

1.14Coalition Senators are concerned by repeated examples of unlawful behaviour engaged in by unions. Without any 'fit and proper persons' test applied to individuals and organisations such as the CFMMEU and John Setka, Coalition Senators believe an amendment removing the mandate to appoint three union officials, outlined in section 16B(1)(c), is appropriate.

1.15Coalition Senators note ACCI's view that a 'representative from the skills training sector with an understanding of training delivery from the provider perspective across a range of contexts is critical in the effective composition of the JSA board'.[7]

1.16Coalition Senators note alongside ACCI, AI Group and BCA, that within the legislation there is a requirement for a review of JSA within two years. However, Coalition Senators agree with the ACCI and the Independent Tertiary Education Council Australia (ITECA) that the review should be brought forward and concluded within the two-year period, not commenced two years after the start date.[8]

1.17Coalition Senators support bringing the commencement of the review into the operation of the Act forward to 12 months, preventing the Government from circumventing scrutiny until after the next election.

1.18Coalition Senators note the remarks of ITECA during the public hearing that ITECA proposes that:

… there be two permanent standing committees within JSA: one dealing with the engagement with the states and territories … and a pan-Commonwealth subcommittee to ensure that JSA has the involvement of the Department of Employment and Workplace Relations but also industry and the Department of Home Affairs.[9]

1.19Coalition Senators are concerned that provision 12 of the bill, specifically paragraph 9(1), would enable JSA 'to consider the impact of insecure work on economic and social outcomes', may embody mission creep away from its core purpose for which it was established.[10]

1.20Coalition Senators recommend that the bill not be passed in its current form.

1.21Coalition Senators recommend that the Coalition amendments to the bill, circulated in the name of the Hon Sussan Ley MP, be passed.

1.22If the Coalition amendments are accepted, the bill should be passed.

Footnotes

[1]Prime Minister, the Hon Anthony Albanese MP, ‘Let’s Invest in Skills for Our Greatest Resource’, Herald Sun, 12 November 2021, https://anthonyalbanese.com.au/media-centre/lets-invest-in-skills-for-our-greatest-resource-opinion-herald-sun

[2]Australian Chamber of Commerce and Industry (ACCI), Submission 13, [p. 1].

[3]Ms Megan Lilly, Head, Education and Training, Australian Industry Group, Proof Committee Hansard, 17 April 2023, p. 2.

[4]ACCI, Submission 13, [p. 1].

[5]Business Council of Australia, Submission 18, p. 2.

[6]Senator Matt O'Sullivan, Ms Laura Angus, First Assistant Secretary, Careers and International Skills Division, Department of Employment and Workplace Relations (DEWR) and Ms Danielle Finnigan, Assistant Secretary, Skills System and International Branch, DEWR, Proof Committee Hansard, 17 April 2023, p. 25.

[7]ACCI, Submission 13, [p. 2].

[8]Ms Natalie Heazlewood, Associate Director, Skills, Small Business and Innovation, ACCI, Proof Committee Hansard, 17 April 2023, p. 6; and Mr Troy Williams, Chief Executive, ITECA, Proof Committee Hansard, 17 April 2023, p.15.

[9]Mr Troy Williams, Chief Executive, ITECA, Proof Committee Hansard, 17 April 2023, p.13.

[10]Senator Matt O'Sullivan, Proof Committee Hansard, 17 April 2023, p. 24.