Senate debates

Wednesday, 16 August 2017

Bills

Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017; In Committee

5:36 pm

Photo of Doug CameronDoug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Hansard source

Yes, I just confirm that.

Leave granted.

I move:

(28) Schedule 1, item 27, page 17 (before line 5), before the definition of FWO notice, insert:

  AAT presidential member means a person who is a presidential member of the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975.

  Commonwealth Ombudsman means the person for the time being holding office as Ombudsman under the Ombudsman Act 1976.

(29) Schedule 1, item 30, page 17 (lines 19 to 22), omit paragraphs 683(1B)(a) and (b), substitute:

  (a) the power under subsection 712AA(1) to apply for the issue of an FWO notice; and

  (b) the power under subsection 712AD(1) to give an FWO notice; and

  (c) the power under subsections 712AD(3) and (4) to give notice of a later time.

(30) Schedule 1, item 35, page 18 (lines 17 and 18), omit subsection 703(2), substitute:

(2) To avoid doubt, the power to apply for the issue of an FWO notice under section 712AA and the power to give an FWO notice under section 712AD are not compliance powers.

(31) Schedule 1, item 38, page 19 (line 1) to page 20 (line 13), omit section 712A, substitute:

712A Minister may nominate AAT presidential members to issue FWO notices

(1) The Minister may, by writing, nominate an AAT presidential member to issue written notices (FWO notices) under section 712AB.

(2) The Minister may nominate an AAT presidential member who is a Judge to issue FWO notices under section 712AB only if the Judge has consented, by writing, to the nomination.

(3) A nomination ceases to have effect if:

  (a) the nominated AAT presidential member ceases to be an AAT presidential member; or

  (b) the Minister, by writing, withdraws the nomination.

(4) A nominated AAT presidential member has, in performing a function of or connected with issuing an FWO notice under this Subdivision, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

712AA Fair Work Ombudsman may apply to nominated AAT presidential member for FWO notice

General requirements

(1) The Fair Work Ombudsman may apply, in writing, to a nominated AAT presidential member for the issue of an FWO notice referred to in subsection (2) if the Fair Work Ombudsman believes on reasonable grounds that a person:

  (a) has information or documents relevant to an investigation by an inspector into a suspected contravention of a provision of this Act, a fair work instrument or a safety net contractual entitlement that relates, directly or indirectly, to:

     (i) the underpayment of wages, or other monetary entitlements, of employees; or

     (ii) the unreasonable deduction of amounts from amounts owed to employees; or

     (iii) the placing of unreasonable requirements on employees to spend or pay amounts paid, or payable, to employees; or

  (b) is capable of giving evidence that is relevant to such an investigation.

(2) The FWO notice may require the person:

  (a) to give information to the Fair Work Ombudsman, or a specified member of the staff of the Office of the Fair Work Ombudsman; or

  (b) to produce documents to the Fair Work Ombudsman, or a specified member of the staff of the Office of the Fair Work Ombudsman; or

  (c) to attend before the Fair Work Ombudsman, or a specified member of the staff of the Office of the Fair Work Ombudsman who is an SES employee or an acting SES employee, and answer questions relevant to the investigation.

Form and content of application

(3) An application for an FWO notice must:

  (a) if a form is prescribed by the regulations—be in that form; and

  (b) include any information prescribed by the regulations.

(4) An application for an FWO notice must not relate to more than one person, but may relate to more than one investigation.

Application must be accompanied by affidavit

(5) An application for an FWO notice must be accompanied by an affidavit by the Fair Work Ombudsman including the following:

  (a) the name of the person to whom the application relates;

  (b) details of the investigation (or investigations) to which the application relates;

  (c) the grounds on which the Fair Work Ombudsman believes the person has information or documents, or is capable of giving evidence, relevant to the investigation (or investigations) referred to in paragraph (b);

  (d) details of other methods used to attempt to obtain the information, documents or evidence;

  (e) the number (if any) of previous applications for an FWO notice that the Fair Work Ombudsman has made in relation to the person in respect of the investigation (or investigations) referred to in paragraph (b);

  (f) information about whether the Fair Work Ombudsman has made, or expects to make, any other applications for an FWO notice in relation to the investigation (or investigations) referred to in paragraph (b) and, if so, the persons to whom those applications relate.

Further information

(6) A nominated AAT presidential member to whom an application for an FWO notice is made may request the Fair Work Ombudsman to give the presidential member further information in relation to the application.

(7) If a request for further information is made under subsection (6), the Fair Work Ombudsman must give the further information in writing as soon as practicable after receiving the request.

712AB Issue of FWO notice

(1) A nominated AAT presidential member to whom an application for an FWO notice has been made must issue the FWO notice if the presidential member is satisfied of the following:

  (a) that an inspector has commenced the investigation (or investigations) to which the application relates;

  (b) that there are reasonable grounds to believe that the person to whom the application relates has information or documents, or is capable of giving evidence, relevant to the investigation (or investigations);

  (c) that any other method of obtaining the information, documents or evidence:

     (i) has been attempted and has been unsuccessful; or

     (ii) is not appropriate;

  (d) that the information, documents or evidence would be likely to be of assistance in the investigation (or investigations);

  (e) that, having regard to all the circumstances, it would be appropriate to issue the FWO notice;

  (f) any other matter prescribed by the regulations.

(2) A nominated AAT presidential member must not issue an FWO notice except in the circumstances referred to in subsection (1).

(3) An FWO notice must not be issued in relation to more than one person, but may be issued in relation to more than one investigation.

(4) If:

  (a) an application for an FWO notice is made in relation to more than one investigation; and

  (b) the nominated AAT presidential member to whom the application is made is not satisfied of the matters referred to in subsection (1) in relation to each of those investigations;

the nominated AAT presidential member must issue the FWO notice in relation to the investigation (or investigations) in relation to which the nominated AAT presidential member is satisfied of the matters referred to in subsection (1).

712AC Form and content of FWO notice

     An FWO notice must:

  (a) if a form is prescribed by the regulations—be in that form; and

  (b) if the notice requires a person to give information under paragraph 712AA(2)(a)—specify the time by which, and the manner and form in which, the information is to be given; and

  (c) if the notice requires a person to produce documents under paragraph 712AA(2)(b)—specify the time by which, and the manner in which, the documents are to be produced; and

  (d) if the notice requires a person to attend to answer questions relevant to an investigation—specify the time and place for the attendance; and

  (e) be signed by the nominated AAT presidential member who issued it; and

  (f) include any other information prescribed by the regulations.

712AD Fair Work Ombudsman may give FWO notice to person in relation to whom it is issued and vary time for compliance

Fair Work Ombudsman may give FWO notice to person in relation to whom it is issued

(1) If a nominated AAT presidential member issues an FWO notice, the Fair Work Ombudsman may give the notice to the person in relation to whom it is issued.

(2) If an FWO notice is not given to the person in relation to whom it is issued within 3 months after the day on which it was issued, the notice ceases to have effect at the end of that period.

Variation of time for compliance with FWO notice

(3) If:

  (a) the Fair Work Ombudsman gives an FWO notice to a person under subsection (1); and

  (b) the time specified in the notice under paragraph 712AC(b), (c) or (d) is not at least 14 days after the notice is given to the person;

the Fair Work Ombudsman must, at the same time as the FWO notice is given to the person, also give notice to the person of a time later than the time specified in the notice.

(4) The Fair Work Ombudsman may, at any time after giving an FWO notice to the person in relation to whom it is issued, give notice to the person of a time later than the time:

  (a) specified in the notice under paragraph 712AC(b), (c) or (d); or

  (b) notified under subsection (3).

(5) A later time notified under subsection (3) or (4) must be at least 14 days after the FWO notice is given to the person.

(6) If the person is notified of a later time under subsection (3) or (4), the FWO notice has effect as if the later time (or the latest of those times) were the time specified in the FWO notice.

712AE Conduct of examination

Legal representation

(1) A person attending before the Fair Work Ombudsman, or a member of the staff mentioned in paragraph 712AA(2)(c), may be represented by a lawyer if the person chooses.

Oath or affirmation

(2) The Fair Work Ombudsman, or a member of the staff mentioned in paragraph 712AA(2)(c), may require the information or answers to be verified by, or given on, oath or affirmation, and either orally or in writing. For that purpose, the Fair Work Ombudsman, or any member of the staff of the Office of the Fair Work Ombudsman, may administer the oath or affirmation.

(3) The oath or affirmation is an oath or affirmation that the information or answers are or will be true.

(32) Schedule 1, item 38, page 20 (line 21), omit "712A(5)", substitute "712AE(2)".

(33) Schedule 1, item 38, page 21 (after line 19), after section 712D, insert:

712E Fair Work Ombudsman must notify Commonwealth Ombudsman of issue of FWO notice

(1) As soon as practicable after an FWO notice has been issued, the Fair Work Ombudsman must:

  (a) notify the Commonwealth Ombudsman that the FWO notice has been issued; and

  (b) give the Commonwealth Ombudsman a copy of:

     (i) the FWO notice; and

     (ii) the affidavit that accompanied the application for the FWO notice; and

     (iii) any other information in relation to the FWO notice that was given to the nominated AAT presidential member who issued the notice.

(2) If notice under subsection 712AD(3) or (4) is given to a person, the Fair Work Ombudsman must notify the Commonwealth Ombudsman as soon as practicable after giving notice.

712F Review and report by Commonwealth Ombudsman

Fair Work Ombudsman to give report etc. to Commonwealth Ombudsman

(1) As soon as practicable after an examination of a person under paragraph 712AA(2)(c) is completed, the Fair Work Ombudsman must give the Commonwealth Ombudsman:

  (a) a report about the examination; and

  (b) a video recording of the examination; and

  (c) a transcript of the examination.

(2) The report under paragraph (1)(a) must include:

  (a) a copy of the FWO notice under which the examination was conducted; and

  (b) the following information:

     (i) the time and place at which the examination was conducted;

     (ii) the name of each person who was present at the examination;

     (iii) any other information prescribed by the rules.

Review of exercise of powers under this Subdivision

(3) The Commonwealth Ombudsman:

  (a) must review the exercise of powers under this Subdivision by the Fair Work Ombudsman and any member of the staff of the Office of the Fair Work Ombudsman; and

  (b) may do anything incidental or conducive to the performance of that function.

(4) The Commonwealth Ombudsman's powers under the Ombudsman Act 1976 extend to a review by the Ombudsman under this section as if the review were an investigation by the Ombudsman under that Act.

(5) The exercise of those powers in relation to a review by the Ombudsman under this section is taken, for all purposes, to be an exercise of powers under the Ombudsman Act 1976.

Commonwealth Ombudsman to report to Parliament

(6) As soon as practicable after the end of each quarter of each financial year, the Commonwealth Ombudsman must prepare and present to the Parliament a report about examinations conducted during that quarter. The report must include the results of reviews conducted under this section during that quarter.

(7) The Commonwealth Ombudsman may prepare and present to the Parliament any other reports about the results of reviews conducted under this section the Commonwealth Ombudsman considers appropriate.

(34) Schedule 1, item 56, page 28 (line 11), omit "712A(2)", substitute "712AA(2)".

(39) Schedule 1, item 57, page 31 (line 31), omit "712D", substitute "712F".

These amendments are in relation to doing the same as was done for the ABCC, and that is to have Administrative Appeals Tribunal oversight and ombudsman oversight of the compulsory questioning powers and ensure that they are used for investigations into exploitation of vulnerable workers.

Stakeholders from business and from unions made submissions to the Senate committee inquiry, raising concerns about the lack of oversight in the bill for the proposed new Fair Work Ombudsman compulsory questioning powers. Every senator here, I think, would be well aware of the debates that took place in relation to the requirement for oversight in the ABCC.

While Labor support giving the Fair Work Ombudsman the powers necessary to prevent, uncover and prosecute the exploitation and underpayment of vulnerable workers, we are also concerned that these powers are exercised appropriately. When the Senate debated the ABCC legislation recently, it ensured that the compulsory questioning powers to be granted to the ABCC were subject to oversight by the AAT and the Commonwealth Ombudsman. These amendments put the same oversight procedure into the proposed Fair Work Ombudsman compulsory questioning power contained in the bill.

The Fair Work Ombudsman gave evidence to the Senate that these powers would enhance her ability to investigate and prosecute serious and systemic exploitation of workers such as that carried out by 7-Eleven. The explanatory memorandum made it clear that the purpose of the coercive powers was to strengthen 'the evidence-gathering powers of the Fair Work Ombudsman to ensure that the exploitation of vulnerable workers can be effectively investigated'. All of the government's public statements have described the bill as introducing better investigatory powers relating to the exploitation of vulnerable workers. We take the view that limiting the use of the proposed coercive powers to investigations into underpayment of wages and allowances is consistent with the position that coercive powers should be used sparingly and only where justified.

These amendments require the Fair Work Ombudsman to apply to the AAT for a notice to compel a person for questioning; require the AAT to be satisfied that there are reasonable grounds to believe the person has relevant information and that other methods of obtaining that information have been unsuccessful or are not appropriate; and give the Commonwealth Ombudsman review and reporting responsibilities. They will ensure the coercive powers are used only for the intended purpose: to facilitate investigations into the exploitation of vulnerable workers, specifically the underpayment of their wages and entitlements.

In relation to our concerns, we have got some legitimate reasons to be raising this. Remember when the ABCC was introduced, and the ABCC under the act that passed parliament had responsibility to ensure that it behaved appropriately and fairly and that it dealt with issues of exploitation and breaches of the act in relation to workers, their wages and their entitlements. I asked a question on this issue to the Department of Employment—I asked the question on 30 May 2017, on proof Hansard page 107—and I received a response in relation to the question. I asked Mr Hadgkiss—it was about a mandate from parliament—and he said, 'When I took over, it was what the government of the day directed me.' So I said, 'When you took over—the mandate not to deal?' Mr Hadgkiss interrupted and said, 'To concentrate on what was termed core business.' I'm sure senators are aware of this debate. So I said, 'So the mandate came from the government, not you?' And Mr Hadgkiss said, 'It was a direction from the minister of the day—yes.' I said, 'That was Minister Abetz wasn't it?' Mr Hadgkiss said, 'Yes,' then I said, 'Was that a written direction?' He said, 'I'll take it on notice.' I asked for him to provide copies of the written direction. And, I received an answer to that question and the answer was this: 'On 12 November 2013, the director of Fair Work Building and Construction—FWBC—and the Fair Work Ombudsman received an email from the Office of the Senator the Hon. Eric Abetz—the then Minister for Employment—advising that the Prime Minister had requested that wages compliance functions held by the FWBC be transferred to the Fair Work Ombudsman. The email advised that the Minister for Employment would write to the Fair Work Building Commission director and the Fair Work Ombudsman to formally request this transfer of functions occur. A copy of the email is attached.' There's an email—who it's from is redacted—but it was sent to Mr Nigel Hadgkiss, and it's headlined 'sensitive'. I'm not surprised. It says: 'Dear director and ombudsman, the minister has received correspondence this morning from the Prime Minister asking that wages compliance functions held by the FWBC be transferred to the Fair Work Ombudsman as a matter of urgency.' It says: 'We have asked for this to occur in the past, but given the PM's interest in this, the minister has asked that this be advanced as rapidly as possible. Minister Abetz will write to you both later today/tonight formally requesting this to occur as a high priority. Happy to discuss.' It's signed by one of Senator Abetz's advisers—and that name is redacted.

This goes exactly to the issue here. This coalition government is absolutely obsessed with the trade union movement in this country. The minister is particularly obsessed with the trade union movement in this country. The coalition moved bill after bill in this place to restrict the capacity of the trade union movement to operate effectively and fairly. The minister has continually attacked the trade union movement in this country. And we are concerned that, given the history of the coalition and this minister and their contempt for the legal rights of the trade union movement to operate effectively, this is simply another Trojan Horse to attack the wages and conditions of workers in this country.

We find again the Prime Minister writing to the minister to change how an organisation operates, to diminish their effectiveness in looking after workers, so that resources could be transferred to the then Fair Work Building and Construction to attack the trade union movement. That's the history of this government. This government has no credibility when it comes to looking after working people. You know the history of Work Choices. You know the history of royal commissions being run against their political opponents. You know the history of the legislation that's come in here time and time again. So we are concerned that this Trojan Horse that they've put up will simply be another attack on the union movement operating fairly, effectively and legally. And that's why we do not support a proposition that is inconsistent with the submissions that the Fair Work Ombudsman made, inconsistent with the submissions that have been received by the inquiry and inconsistent with the public statements of the minister and the government in relation to what this part of this bill does.

It was never proposed that this bill should be used to attack the trade union movement. It was never proposed that it should do any more than protect vulnerable workers. You need only look at the name of the bill to understand what this is about. But given the history and what happened with Senator Abetz and the then PM Tony Abbott, we have grave and legitimate concerns that this should not be widened past what it was publicly asserted the bill would do and what the submissions to the inquiry have said the bill is about. We've a range of amendments that deal with this.

In the inquiry, as I've indicated, a number of submissions were made, including from Mr Michael Campbell, the Deputy Fair Work Ombudsman. He said:

We would not reach to use this [strengthened evidence-gathering power] at the commencement of an investigation.

He goes on to say:

This is something that is going to assist us in the most difficult and complex cases, where witnesses are unwilling to work with us for fear of retribution or some other feature, where you can see within a company that there is an attitude to noncompliance which is getting to a point where managers are refusing to talk to us because there is some pressure being put on them by the directors of the company, or where the directors of a company are choosing not to involve themselves in our investigations. This is to crack the hardest of nuts, and we have seen plenty of those cases over the last 12 months

So the Deputy Fair Work Ombudsman is saying he has seen plenty of these cases over the last few months and has outlined what they are about. He said the conduct was deliberate for serious contraventions. We have a concern that this will be widened and it should not be widened. The proof of the pudding is in the eating. You only need to look at what this government did when it previously had the opportunity to attack workers' rights to have access to a trade union, so we are concerned about this.

Labor would ask the crossbench and the Greens to support this proposition because this is a proposition that is fundamental to ensuring that what has been proposed by the government is implemented but no more, and to protect the trade union movement in this country from further ideological attacks by this minister and this government. If the crossbench concede this point then they will be going far further than this bill was publicly asserted it was supposed to do. This is consistent with the rhetoric of the government, it's consistent with the bill and it is consistent with the proposals that were put up publicly by the minister. We are of the view this is a very important—fundamental—part of this bill. It needs to be amended, and we will be asking support for our amendments.

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