Chapter 1
Overview
1.1
On 11 May 2010 the Senate referred the following documents to the Senate
Education, Employment and Workplace Relations Legislation Committee for
examination and report in relation to the Education, Employment and Workplace
Relations portfolio:
- Particulars of proposed expenditure in respect of the year
ending on 30 June 2011;
- Particulars of certain proposed expenditure in respect of the
year ending on 30 June 2011; and
- Particulars of proposed expenditure in relation to the
parliamentary departments in respect of the year ending on 30 June 2011.[1]
1.2
Standing committees are required to report to the Senate on 22 June 2010.
This report of the Education, Employment and Workplace Relations Legislation
Committee is provided to the Senate in fulfilment of that requirement.
Portfolio coverage
1.3
The committee has responsibility for examining the expenditure and outcomes
of the Education, Employment and Workplace Relations portfolio. Appendix 1
lists the department and agencies under this portfolio.
1.4
Three agencies that were previously in the portfolio ceased to operate
in 2009‑10 and accordingly will no longer be examined by the committee.
As noted in the Portfolio Budget Statements 2010-11, the Australian Industrial Relations
Commission and the Australian Industrial Registrar ceased to operate on 31
December 2009, with all assets and liabilities transferring to Fair Work
Australia. Similarly, the Workplace Authority ceased to operate on 31 January
2010, with all assets and liabilities transferring to the Fair Work Ombudsman.[2]
Public hearings
1.5
The committee conducted four days of hearings and, in total, met for 41
hours and 29 minutes, excluding breaks.
1.6
The committee heard evidence on 31 May and 1 June 2010 from Senator the
Hon. Mark Arbib, as the minister representing the Minister for Employment
and Workplace Relations, along with officers from areas of the Department of
Education, Employment and Workplace Relations (DEEWR) and from the agencies
responsible for administering employment and workplace relations policy:
- Comcare
- Safe Work Australia
- the Fair Work Ombudsman
-
Fair Work Australia
- the Australian Building and Construction Commission.
1.7
On 2 and 3 June the committee heard evidence from Senator the Hon. Kim Carr,
as the minister representing the Minister for Education, and from officers from
areas of the department and agencies responsible for administering education
policy.
1.8
Appendix 2 of this report provides a brief guide to the contents of the Hansard
transcripts. These transcripts are available on the committee's homepage and on
the Hansard website: http://www.aph.gov.au/hansard/senate/commttee/comsen.asp
Procedural matters arising during the hearings
Public interest immunity claims
1.9
On 13 May 2009, the Senate passed an order relating to public interest
immunity claims.[3]
The order sets out the processes to be followed if a witness declines to answer
a question. The full text of this order has been provided to departments and
agencies and was incorporated into the Chair's opening statement on each day of
the Budget Estimates hearings. It is also reproduced in Appendix 3 of this
report.
1.10
A witness from Fair Work Australia declined to answer a number of
questions on the grounds that to do so may prejudice investigations and
possible future legal proceedings. This was consistent with the stance taken
during the February 2010 Additional Estimates hearings and in responding to
questions taken on notice in February.
1.11
When asked how the provision of information that has been on the public
record through the media for over a year could be harmful to the public
interest, the witness responded:
I believe it would be harmful on the basis that in the event
that my now investigation was to find that there were contraventions of the
Fair Work (Registered Organisations) Act, it may well be that some of those
prosecutions of the contraventions would be jeopardised.[4]
1.12
Although the questioning senator expressed some dissatisfaction at the
number of questions that went unanswered, the minister made the following
point:
There is an investigation underway by Fair Work Australia and
I will not be saying anything, nor will the government, which may prejudice it.[5]
1.13
The Chair indicated a belief that this was an acceptable public interest
immunity ground for refusing to answer the questions, and the questioning
senator chose not to press the matter further.
Attendance at estimates by the
President of Fair Work Australia
1.14
On 28 October 2009 the Senate passed a resolution of continuing effect
requiring the President of Fair Work Australia (FWA) to appear and answer
questions at all future estimates hearings held by the Senate Education,
Employment and Workplace Relations Legislation Committee.[6]
1.15
This resolution was passed despite acceptance by the committee of the
view of the current President, Justice Giudice, that the General Manager of FWA
is the appropriate representative to attend and answer questions.[7]
1.16
In its February 2010 Additional Estimates report, the committee maintained
that the General Manager would be an appropriate representative but also acknowledged
that the Senate order of 28 October 2009 overrides this view.[8]
1.17
Justice Giudice opened his appearance at the Budget Estimates hearings
on 1 June 2010 with a request that the Senate reconsider its order. He
indicated that he does not agree with the basis on which he is being required
to appear and suggested that compelling him to appear compromises the
independence of FWA.[9]
1.18
The committee has now considered Justice Giudice's statement and the
concerns raised within it. The committee does not resile from the view that it
is within the authority of the Senate to call the President of FWA to appear at
estimates hearings. However, the committee does not believe that the President
should automatically be required to attend all such hearings on an ongoing
basis. No other officer of the Commonwealth is subject to such a requirement. It
would now be appropriate for the Senate to relax the order of 28 October 2009,
while maintaining its expectation that the President will appear at future
estimates hearings if requested by the committee. Accordingly, the committee
will be asking the Senate to reconsider its order of 28 October 2009.
1.19
Coalition Senators note advice provided by the Clerk of the
Senate to Senator Fisher (tabled in the Senate on Thursday 17 June), dealing
with President Giudice’s statement, and oppose any moves to have the Senate
reconsider the Senate resolution.
Attendance at estimates by the
Chair of the Building the Education Revolution Implementation Task Force
1.20
The committee notes that Mr Brad Orgill, Chair of the Building the
Education Revolution (BER) Implementation Taskforce, was not called to appear
at the Budget Estimates hearings as he may not fall into the category of an
'officer' under Senate Standing Order 26. However, the committee further notes
that Mr Orgill was willing to appear and that the Senate Education, Employment
and Workplace Relations References Committee has already taken evidence from,
and is likely to take further evidence from, Mr Orgill in the course of its
current inquiry into the Primary Schools for the 21st Century
element of the BER program.[10]
Questions on notice
1.21
The committee has drawn the attention of the department and its agencies
to the agreed deadline of Friday, 30 July 2010 for the receipt of answers to
questions taken on notice from this round, in accordance with Standing Order
26.
1.22
Answers will be progressively published on the committee's estimates web
page as they are received.[11]
Note on Hansard page referencing
1.23
Hansard references throughout this report are to proof Hansard page
numbers. Please note page numbering may differ between the proof and final
Hansard.
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