Wednesday, 16 August 2017
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017; In Committee
I appreciate the proposition that you've put. We would be more than happy to meet with you, Senator Xenophon, and take you through this in some detail. I think it's a pretty simple proposition: if you comply with the law as it stands and you keep your employment records and your pay records then you don't have a problem. You don't suffer. I'll retract that. You're not then obliged to have the reverse onus of proof.
What we are saying here is pretty simple: the law requires you to make and keep a record. It's not just about writing a little slip out to say, 'I'm going to pay you $1,000 this week,' handing it over and calling that a pay slip. That is not a pay slip. You have to keep a record. That's what the law says. So if you've made and kept a record, as you are obliged to do, the reverse onus of proof does not apply. I think it's pretty clear.
Senator Xenophon interjecting—
If it's a false claim, you've got the records to prove it's a false claim, Senator Xenophon. You've got to make and keep a record. If it's a false claim then you've got access to the Fair Work Ombudsman, the Fair Work Commission and anywhere you want to resolve it. But these are issues of vulnerable workers. I'm not saying for one minute, Senator Xenophon, that you are, but we shouldn't be looking for ways to allow the wage theft that is growing in this country to continue. That is fundamental. If you have kept records and you have complied with the law as it stands now, then the reverse onus of proof does not apply. And our amendment on sheet 8144, section 557C 'Presumption where records not provided', if you go to (c) it says, if:
… the employer failed to comply with the requirement; the employer has the burden of disproving the allegation.
So there are two steps here. It's not as if someone just walks in and makes a false allegation. That doesn't work. It is not reverse onus if somebody just walks in and makes a false allegation. The reverse onus is where the employer failed to comply with the requirement. It's the legal requirement an employer has.
Why would we, in this place, after passing laws in relation to record keeping and pay slips, then say, 'If you don't do that, then this is an onerous burden on small business'. I do not think it's an onerous burden to comply with the law in relation to pay slips. If you're a small business, then you have got to do it. You have got to do it for taxation. You have got to make sure that you're not part of the black economy. You have got to make sure that workers who actually go and work don't have their wages stolen and that they get the pay that is due to them. This does not apply if the employer has kept the pay records. Then it becomes a dispute. If it's a dispute about the pay record itself, then the Fair Work Ombudsman is there and the Fair Work Commission is there. If the employee is lucky enough to be in a union, the unions can come in and support them in that application.
If anyone is listening in, join a union and a lot of these things don't happen to you. Join a union; that will help. But we cannot have a proposition here where, if an employer fails to meet its obligations under the law, they can steal from an employee. That's what's happening at the moment. Some employers are deliberately breaching the law by not maintaining records and not providing pay slips, and then the onus is on the employee to try and prove that they have been ripped off. This reverse onus is about protecting vulnerable workers. That's what this minister says this is about. But she's been exposed again today about what is underlying this: that is, to come after the union movement and to have the Fair Work Ombudsman given more powers on industrial action. That's clear. But that has not been the stated position of this minister and it wasn't a submission from the department. Yet, during the committee period, we suddenly get this argument that this is about giving powers to the Fair Work Ombudsman on industrial action.
That's why we are so concerned that workers get a fair go in this country. They won't get a fair go under this minister and they won't get a fair go under the coalition, and we need to make sure that if an employer doesn't comply with the law as it stands now that those workers are not subjected to an unfair and almost impossible argument to prove that they have been underpaid. It's up to the employer under this amendment. If the employer has not complied with the law of the land as it stands now, it's up to that employer to ensure that they have pay slips and that they have kept records. If they've kept pay slips, they've kept records, they've got CCTV, they've got bank payments to a worker or they've got a slip to say, 'I've paid the worker', then the reverse onus of proof is not an issue. But it is an issue if they've destroyed records. It is an issue if they've stolen from vulnerable workers. Wage theft is growing, and we want to deal with it.
These are issues that we are more than happy to continue to discuss with you, Senator Xenophon. We've got a fair bit of work to do with you. I know how busy you are and how busy your office is, but you've made the offer to sit down with the opposition and deal with these aspects. We are happy to go through any of the aspects of our amendments, because our amendments are about genuinely protecting vulnerable workers. I don't think, Senator Xenophon, that you would argue that tonight we are putting up some kind of smokescreen. The issues we have raised are genuine issues. They are issues that the committee process was designed to try and deal with. You have used committee process properly and effectively to raise concerns you have about some of our amendments. We have said we will meet with you, we will discuss them with you and we will try to meet agreement with you on these issues.
This is not about protecting some egregious rip-off of workers, whether it's a small business—you say 'small business' and suddenly a little halo appears above those two words as if the small business can do no wrong.