Chapter 2

Education, Employment and Workplace Relations portfolio

2.1        This chapter summarises areas of interest and concern raised during the committee's consideration of budget estimates for the 2012-13 financial year. This section of the report follows the order of proceedings and provides an indicative, but not exhaustive, coverage of issues examined.

2.2        The committee heard evidence on 28 and 29 May from the Parliamentary Secretary for School Education and Workplace Relations, Senator the Hon. Jacinta Collins, and Minister for Agriculture, Fisheries and Forestry, and Manager of Government Business in the Senate, Senator the Hon. Joseph Ludwig, along with officers from areas of the Department of Education, Employment and Workplace Relations (the department) and agencies responsible for employment and workplace relations, including:

• Comcare
• Safe Work Australia
• Fair Work Ombudsman
• Fair Work Australia
• Australian Building and Construction Commission

2.3        On 30 and 31 May the committee heard evidence from Senator the Hon. Kim Carr representing the Minister for School Education, Early Childhood and Youth, and Parliamentary Secretary for School Education and Workplace Relations Senator the Hon. Jacinta Collins, as well as officers from areas of the department and agencies responsible for administering education policy, including:

• Australian Curriculum, Assessment and Reporting Authority;
• Australian Institute of Teaching and School Leadership.

2.4        Senators present over the course of hearings were Senator Marshall (Chair), Senator Back (Deputy Chair), Senators Abetz, Bilyk, Carol Brown, Cameron, Cash, Crossin, Edwards, Fierravanti-Wells, Fisher, Furner, Gallacher, Heffernan, Mason, McKenzie, Nash, Ronaldson, Scullion, Siewert, Thistlethwaite, Williams, and Xenophon.

Fair Work Australia

Timely supply of evidence

2.5        Following the appearance of FWA on 28 May, the committee received additional information from FWA in the form of answers to questions on notice from the Additional Budget Estimates 2011–12 hearings held in February 2012. This action was interpreted by some Senators as an effort to avoid scrutiny leading the committee to recall FWA on 29 May. For the benefit of all witnesses appearing before the committee, it is emphasized that all relevant information should be provided to the committee before an appearance at Senate Estimates. Failure to provide information to the committee in a timely manner may be considered by the committee as an attempt to avoid scrutiny.

Senate Resolution regarding appearance of President of Fair Work Australia at Senate Estimates

2.6        The committee examined officers of Fair Work Australia (FWA) on Monday 28 March 2012, and again on Tuesday 29 March 2012. The President of Fair Work Australia appeared before the committee on 28 March in accordance with the Senate Resolution of 28 October 2009 requiring that:

On each subsequent occasion on which the Education, Employment and Workplace Relations Legislation Committee meets to consider estimates in relation to Fair Work Australia, the President of Fair Work Australia appear before the committee to answer questions.[3]

2.7        The President of FWA did not appear before the committee on 29 March as the committee considered that the order had been satisfied by the President's appearance on 28 May and that his presence was therefore not required.[4]

President of Fair Work Australia

2.8        The new President of FWA, the Hon. Justice Iain Ross, appeared before the committee for the first time.

2.9        The committee explored with the President of FWA what processes and procedures were in place in relation to a judicial officer of FWA who had engaged in inappropriate behaviour. The President informed the committee that if he became aware of a situation that was sufficiently serious to merit review, the matter would be referred to parliament.[5] As explained to the committee, 'it is a matter for parliament to determine whether the judicial officer has engaged in proven misbehaviour or is incapable of performing their functions.'[6]

Investigations conducted by Fair Work Australia

2.10      The committee discussed with witnesses from FWA the use of powers under the Fair Work (Registered Organisations) Act 2009. Specifically, the ability of FWA to gather evidence compulsorily, and the remedies available to FWA if witnesses provide false or misleading information.

Fair Work Ombudsman

2.11      Senators queried why the Education, Employment and Workplace Relations Portfolio Budget Statement (PBS) indicated that the Fair Work Ombudsman (FWO) would reduce their workforce by around 70 full-time equivalent positions by the end of 2012. The committee heard that no specific areas were being targeted for rationalisation and that the reduction in staffing levels will be achieved by a combination of voluntary redundancies and natural attrition. The reductions represent around eight per cent of the FWO workforce. Witnesses assured the committee that there is not anticipated to be any reduction in staffing levels in regional areas.[7] The committee was informed that the FWO was 'hopeful' of meeting all of the organisation's key performance indicators in light of the declining staffing and funding levels.[8]

2.12      The committee was informed that there had been a large increase in the number of investigations into sham contracting in the 2011–12 year compared to those prior.[9] Mr Wilson, the Fair Work Ombudsman, updated the committee on current activities in relation to sham contracting:

For 2011–12, there have been 245 inquiries logged about independent contracting or sham contracting. Those were inquiries to our Fair Work information line. We presently have five active litigations. At 31 March 2012, we were actively investigating 147 matters relating to potential misclassification of workers. Misclassification of workers could involve just simply that or it could involve the more significant issue, which is sham contracting.[10]

2.13      The committee discussed the best way to represent data in the annual report of FWO. Some Senators expressed concern that the 2010–11 annual report listed the number of accusations of discrimination and the type of discrimination alleged, but not the outcome of those accusations. Of the 1171 accusations of discrimination, only 36 were either resolved with the assistance of FWO or are ongoing. It was noted that only reporting the number of accusations, but not the result of the investigations of claims, may create an inaccurate picture of widespread workplace discrimination.[11]

2.14      Witnesses informed the committee of recent action in the Federal Court in relation to the use of international cabin crew on domestic flights. The FWO elaborated for the committee the scope and objective of the litigation:

The subject of the action is, I believe, in respect of the eight employees, eight foreign workers. Now clearly there have been more – we believe up to about 300 – international cabin crews rostered across Jetstar's domestic routes. The purpose of taking the court action, if you like, is to test the law in respect of those workers. Depending on what the Federal Court finds, if anything, that will cause us to go back and settle up with the company: 'If this pertains to these eight workers, then what are you doing about the remainder?'[12]

2.15      The committee discussed with FWO the possibility of collecting data, and providing feedback to employers, on cases of above-award payment during compliance audits. Currently, audits report on the number of instances of non-compliance. Some senators suggested that FWO's educative role should include informing industry of above award-level payment, and not be restricted to only identifying non-compliance.[13]

Australian Building and Construction Commission

2.16      The committee discussed with representatives of the Australian Building and Construction Commission (ABCC) what arrangements had been made for the transition to the Office of the Fair Work Building Inspectorate (Inspectorate).[14] The committee was informed that the transition from the ABCC to the Inspectorate was being managed as a machinery of government change, and it was anticipated that the current workforce would transition into the new agency.[15] As explained by Commissioner Johns:

It is a machinery of government change and in the ordinary course of events positions follow function, and so with like functions in the new agency people who are currently performing them within the ABCC will be moved across to fulfil those functions.[16]

2.17      Witnesses provided the committee with an update on the workload of the ABCC:

[T]wo per cent of our work relates to freedom of association; about five per cent of our work relates to right of entry breaches; 22 per cent of our work relates to unlawful industrial action; and, in terms of the subject of our investigations, 19 per cent of those are in respect of conduct by unions or their organisers. About 28 per cent of our investigations are in relation to subcontractors – those who might be engaged in sham contracting; and 27 per cent of our investigations are in respect of employers most likely in relation to the failure to pay wages and entitlements.[17]

2.18      During the appearance of the ABCC, Commissioner Johns was unable to comment on any future role he may hold in the Inspectorate. The committee can report to the Senate that on 30 May 2012 the Minister for Employment and Workplace Relations the Hon. Bill Shorten MP announced that then Commissioner Johns would be appointed to head the Inspectorate for a period of 12 months.[18] Announcing the government's decision, Minister Shorten noted that: 'Mr Johns' appointment will provide the continuity and leadership required to establish the new Inspectorate during its commencement stage.'[19]

Comcare

2.19      Representative from Comcare provided the committee with an update on the transition to the new work health and safety laws:

It has been a relatively smooth transition in the federal workplace as to the new work health and safety laws. Based on feedback from employers, workers, unions and employer representatives through the self-insured association, we have received very good feedback about the depth and extent of support we have provided federal workplaces in the transition—education programs et cetera... We have continued to support employers and their workers with their particular issues or enquiries about coverage, and understanding what the responsibilities now are of persons conducting business undertakings.[20]

2.20      Revisiting discussions from its February 2012 estimates hearings, the committee once again raised the matter of long-running cases with representatives from Comcare. Comcare informed the committee that approximately 20 claims of 'longstanding or ongoing concerns that you would say have not yet been fully resolved' have been identified.[21] The committee heard that Comcare had undertaken discussions with its portfolio department, and was exploring options to have an independent agency review the cases.[22]

2.21      Comcare clarified for the committee its litigation powers under the new Work Health and Safety Act. Under the previous legislation, Comcare would investigate – and where necessary – prosecute breaches of the occupational health and safety regime. Under the new legislation, Comcare investigates alleged breaches and 'consistent with the Commonwealth prosecution policy, if we are going to seek a criminal prosecution, we would refer that matter to the Commonwealth Director of Public Prosecutions.'[23]

Safe Work Australia

2.22      The committee was updated on the status and progress of the national harmonisation of work health and safety laws:

Five jurisdictions implemented the legislation from 1 January 2012. Tasmania has enacted the legislation, and it will commence 1 January 13. The legislation is before the South Australian parliament. The Western Australian government has announced it will introduce the legislation some time in 2012. Victoria has announced that it will not be introducing the model legislation in its current form.[24]

2.23      It was reported to the committee that Western Australia will not be adopting certain areas of the model legislation, namely:

They will not adopt the same penalty levels. They will not adopt the union right of entry provisions, because union right of entry is dealt with under their industrial relations act for occupational health and safety purposes, so it will remain there. They will not adopt the health and safety representative's capacity to direct that unsafe work ceases, but there will be the right of the worker to cease unsafe work. They will not be adopting the reverse onus of proof in discrimination matters.[25]

Department of Education, Employment and Workplace Relations – Outcome 3: Enhanced employability and acquisition of labour market skills

Enterprise Migration Agreements

2.24      The committee discussed with witnesses of the Department the objectives and functions of enterprise migration agreements (EMA). Senators sough details regarding the EMA relating to the Roy Hill iron ore proposal in Western Australia.[26]

2.25      The Department was able to confirm for the committee that as part of the Roy Hill EMA a 'jobs board' would be established. The jobs board will be administered by the Department. The committee was enlightened as to the purpose of a jobs board:

The objective of the jobs board is that projects such as EMA projects will be required to use the jobs board and ensure that qualified Australians are provided job opportunities before overseas workers. We would expect that foreign workers would only be recruited after genuine efforts to first employ Australians.[27]

2.26      The committee heard that there remain a number of areas related to EMA which are yet to be finalised. The committee was informed that the Department of Immigration and Citizenship (DIAC) was primarily responsible for the development and administration of EMA.[28] The committee also learned that compliance mechanisms to ensure that employers sufficient explore the domestic labour pool will be developed in consultation with DIAC, as will procedures to ensure that workers engaged under the EMA process will receive the same pay and conditions as domestic workers.[29]

Assistance for mature age workers

2.27      The committee discussed with witnesses the $1000 jobs bonus available to businesses that employ a job seeker over 50 years of age who has been unemployed for at least 13 weeks.[30] Witnesses provided the rationale for the policy to the committee:

What we are trying to do is ensure that mature age job seekers get a go in the labour market. What we know about mature age job seekers is that once they become unemployed they remain unemployed for much longer than the average job seeker does. So this incentive is about providing a bit of a bonus to employers. It is not in the nature of a wage subsidy, it is more about acknowledging that when you take on a worker, particularly someone who has been out of touch with the labour market for a while, there are induction or training sign-on related costs. The $1,000 was developed in that context.[31]

2.28      The committee also heard that $26 million was set aside in the                       2012–13 Budget to trial mature-age worker specific employment support programs, which the committee heard would encourage a more collaborative, group based support environment.[32]

Jobs, education and training child care fee assistance

2.29      The committee discussed with witnesses the Jobs, Education and Training child care fee assistance (JET program). The committee heard that changes to the JET program announced in the 2012–13 Budget are in response to a doubling of demand for the program over the last year.[33] Some senators raised concerns that the JET program only subsidises parents for up to 24 months with the effect that access to higher-education is limited as almost all degrees are at least three years in duration.[34]

Other matters discussed in Outcome 3

2.30      The committee also discussed with witnesses the following matters during its consideration of Outcome 3:

• The Pacific Island Workers Scheme;
• Disability Employment Services;
• Employment Support Services; and
• Changes to Youth Allowance (Other).

Department of Education, Employment and Workplace Relations – Outcome 4: Safer, fairer and more productive workplaces

2.31             The committee discussed with witnesses the review of the Fair Work Act 2009 (Act) that is currently in progress. The committee discussed the formation of the terms of reference for the review, and the individuals who were consulted on prospective changes to the Act.[35] The committee heard that the final report would be delayed by short period of time. The Department provided some insight into the cause of the delay:

The extensiveness of the panel's work and the requirement to spend a lot of time going over the extraordinarily large number of submissions that were presented to the panel—probably higher than one might expect—some 250 odd submissions, which is certainly higher than what was received on the initial bill. The panel did a very extensive round of consultations and made sure that anyone who wished to participate in a hearing with the panel got that opportunity, which took up basically a good four weeks. The need also for the panel's report to meet the requirements of a post-implementation review...And the high-quality of work that the three members of the panel insist on producing has meant that yes, they have asked for a few more days.[36]

2.32      The committee heard that submissions into the review of the Act have been received from individuals and organisations from across the business, community and government sector. It was reported to the committee that the submissions include a number of suggestions to improve the operation of the Act.[37]

2.33      The committee was informed that the Department has been working with the Department of Prime Minister and Cabinet and the Department of Finance and Deregulation to accurately cost the Commonwealth's fiscal liability arising from the 1 February 2012 ruling by FWA in the social and community services equal remuneration case. The committee raised concerns expressed by some stakeholders that the government had underestimated its liability and as a result some services may miss out on funding. The committee was assured that: 'The Commonwealth has committed to...fund its share, so its share will be funded.'[38]

Australian Curriculum, Assessment and Reporting Authority

2.34      Witnesses updated the committee on progress in developing the national curriculum:

[I]n March we released two Shape papers, which is part of our curriculum development work, for public consultation. That consultation closes early next week. Those papers are the Shape of the Australian Curriculum: Technologies, and Shape of the Australian Curriculum: Health and Physical Education. We are in the middle of getting feedback on those. Early this month we released Draft Senior Secondary Australian Curriculum for 14 subjects across the areas of English, mathematics, science and history. They are out for wide public consultation through to 20 July.[39]

2.35      The committee discussed with witnesses the National Assessment Program –Literacy and Numeracy (NAPLAN). It was reported to the committee that:

[E]arlier this month we saw the conduct of NAPLAN tests across the country. They were sat by just over a million students in years 3, 5, 7 and 9. It is the fifth year of NAPLAN being conducted and just under 10,000 schools across the country have students participating in those...It is worth noting that anecdotally we have heard of no significant shifts in participation or issues around breaches of test protocols or anything there.[40]

2.36      Senators asked witnesses about student participation in the NAPLAN tests and queried how attendance was monitored. Witnesses informed the committee that over the course of NAPLAN testing there have not been any significant changes in participation levels, and that these generally correlate with normal levels of school attendance. Furthermore, individual school attendance statistics are included with the results from that school.[41]

Australian Institute for Teaching and School Leadership

2.37      Representatives from the Australian Institute for Teaching and School Leadership (AITSL) updated the committee on progress in developing the Australian Teacher Performance and Development Framework (Framework).[42] The committee heard that:

That framework seeks to create a culture focused on improving teaching in all schools. It describes the factors that research shows are critical for creating such a culture and, therefore, describes some essential elements that we believe should be in place in all schools for an effective performance and development cycle, and that includes things like teachers having a formal review at least annually and the fact that a range of types of evidence are mandatory for that review.[43]

2.38      It was reported to the committee that under the Framework teachers would be provided feedback related to their performance against personal development goals which would enable them to develop professionally. When assessing teachers the feedback must include evidence of impact on student achievement and performance.[44]

Department of Education, Employment and Workplace Relations – Outcome 1: Early childhood education

2.39      The committee discussed with witnesses problems experienced by childcare service providers using the Child Care Management System (CCMS). Some providers experienced difficulties inputting data and as such their government-funded reimbursements were delayed. In order to prevent hardship, the Department provided nine affected services with continuity payments.[45] The committee heard that the problem was caused by very high peak demand, that that subsequently additional server capacity had been installed which should prevent any repeat occurrences.[46]

2.40      Witnesses reported to the committee the changing profile and uptake of the Jobs, Education and Training Child Care Fee Assistance (JET) program:

In 2007 the scheme supported 18,364 parents and the total number of children was around 30,000. Going into this 2011-12 financial year, we are looking at 30,200 parents—remembering of course that we have not yet finished this year—and over 45,000 children. We are expecting growth next year...Across the spectrum we are seeing a change in the profile, the numbers and the type of care. Previously, it had been largely outside school hours care and older children. We are now seeing parents with younger children, in the three to five age ranges, as opposed to school age. And we are seeing parents accessing long day care as opposed to outside school hours care. That it is for the range of things the program supports—training, study and work. The growth has been in that younger age range—it reflects preparation for work given the obligations that come in under the current parenting payment when children reach certain ages.[47]

2.41      Witnesses also provided an update to the committee in relation to the construction of Indigenous early childhood education centres. The committee heard that four projects had been completed at: West Belconnen, Whittlesea, Halls Creek and Bridgewater. Construction had commenced at a further seven sites at: Bairnsdale, Fitzroy Crossing, Pukatja, Doomadgee, Mareeba and Mornington Island. It was anticipated that construction would commence at a further 20 sites by the end of July 2012 including centres at: Kununurra, Ballina, Mount Druitt, Campbelltown, Blacktown 2, Brewarrina, Gunnedah, Lightning Ridge, Nowra, Toronto, Ceduna, Whyalla, Christies Beach, Ipswich, Cairns, Mount Isa, Palm Island, Mackay, Logan and Rockhampton. It was reported to the committee that interim services were currently being provided to the community from 16 locations. [48]

Department of Education, Employment and Workplace Relations – Outcome 2: Schools and youth

2.42      The committee discussed with witnesses the Review of School Funding prepared by a panel of experts chaired by David Gonski AC (Gonski Review). Discussion covered the methodology used in the report, the impact of the recommendation on various schools, the benefits of various models, recent research regarding class sizes, and improving outcomes for children from disadvantaged backgrounds.[49]

2.43      The committee received an update on the progress on developing Indigenous Boarding Facilities in the Northern Territory. Witnesses reported to the committee that construction had been completed at the Wadeye facility, and a smoking ceremony was scheduled by the community to be held on 13 June 2012. The smoking ceremony, the committee heard, was a first step for the community in taking cultural ownership over the facility.[50] The committee learnt that the Department was still in the preparatory and infrastructure stage of the Garrthalala facility as the officials worked to overcome the unique challenges around ownership, infrastructure and access.[51]

2.44      Witnesses updated the committee on the administration of the National School Chaplaincy and Student Welfare Program (NSCSW Program). The committee heard that as of 25 May 2012 the Department had funding agreements in place with service providers in 2464 of 2555 schools that had existing or continuing services under the NSCSW Program. Of those existing and continuing schools, 88.6 per cent utilised a chaplain, 8.6 per cent employed a student welfare workers, and 2.8 per cent were undecided. The committee also heard that 1000 new schools had recently joined the NSCSW Program. Of the new schools 61.4 per cent had chosen to use a chaplain, 30.6 per cent had employed student welfare workers, and eight per cent remained undecided.[52] 

2.45      The committee heard about the National Aboriginal Sporting Chance Academy (Academy). Witnesses from the Department explained that the Academy was not principally about sport, but providing students with an atmosphere of academic support:

[Students] get tested on their willingness to participate and sign up to regular school attendance, their willingness to try and undertake academic endeavours. And, if you like, the reward and incentive is that they get supported in a highly sought after environment where there are sporting legends and good support.[53]

2.46      It was reported to the committee that the 2012–13 Budget provided $4.8 million over three years, 2012–13 to 2014–15, to expand the Academy program to support an additional 700 young Aboriginal and Torres Strait Islander secondary students.[54]

Department of Education, Employment and Workplace Relations – Cross Portfolio

2.47      The Department reported to the committee that it was actively managing a declining workforce. The committee heard that the Department has:

...implemented a process across every branch and state office in the department which is entirely democratic brainstorming methodology for people to basically come up with their own ideas of what work could stop or change locally, as well as what work could stop or change across the whole department. Nine thousand ideas have come out of that process and I give full tribute to our people in being part of that process in a positive way, in seeing a tough time as a time to take an opportunity, if we can, and do things better, if we can.[55]

 

Senator Gavin Marshall

Chair

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