Senate debates

Wednesday, 16 August 2017

Bills

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

6:53 pm

Photo of Nick XenophonNick Xenophon (SA, Nick Xenophon Team) Share this | Hansard source

The trouble with this place is that there's a lot of invective and a lot of long bows being drawn. I don't think it's fair to accuse the minister of increased wage theft. This is actually a beneficial and good piece of legislation that will tackle this issue. I think that's an unfairly partisan comment and is unhelpful in the context of this debate. I think Senator Cameron knows the genuine spirit in which I'm asking my questions. I do not want to unduly delay the committee stages of this bill, but this is an important amendment. My concern is that small businesses might find themselves in the Kafkaesque legal nightmare where, if somebody makes a false claim, they are presumed guilty unless they can prove themselves innocent.

Now, what I think Senator Cameron was saying—and it is not through a lack of Senator Cameron articulating it, because he knows this stuff inside out and backwards; I accept his expertise in this field—was this. This is about reverse onuses of proof. I've spoken about reverse onuses of proof recently, in terms of foreign bribery offences and the issue of the Commonwealth Bank and the money laundering matters that are very, very serious. What they do in other jurisdictions, when it comes to foreign bribery—for instance, in the UK, and the principles here would be similar—is this: if, as a business, you have a robust system in place of doing the right thing and you have processes in place, then that acts to protect you from unfair claims against you.

If Senator Cameron were saying that, if a business is complying with the law and has a proper system of pay and pay slips, the requirement for the reverse onus of proof would apply in those circumstances—and I'm not suggesting Senator Cameron is saying that, but if that were what was being said—then that would be unfair. Say you had good employers who had proper systems in place to deal with their payroll and were compliant with the legislation, and then somebody made a claim saying, 'You haven't paid me.' If they had a system in place that was reasonable and robust, then why should that business be subject to a claim where they could be tied up in litigation and end up in court spending tens of thousands of dollars saying, 'Despite the fact that I have a process and a system in place, I'm being accused of not paying someone'? What do you do then? That's quite different from the circumstances where an employer has no system and doesn't comply with the provisions of this bill—or, indeed, with general employment standards in terms of payment. That's the contrast. So what I'm trying to genuinely appreciate here is: will those small and medium businesses that have done the right thing and have a system in place that is acceptable and fair have to be subject to a reverse onus of proof? That, to me, would be unfair.

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